News

SUMMARY OF THE CASE-LOAD AND STATISTICAL DATA FOR THE FIRST QUARTER OF 2022

25 April 2022

The Constitutional Court publishes detailed tables of its case-statistics at the end of each quarter and at the end of the year. Below we summarise the key data for the first quarter of 2022 and provide an overview of the data on case-load and the decisions.

more

The Constitutional Court has dismissed the petition for ex-post review of a legislative provision amending the concept of the place of residence

14 February 2022

The Constitutional Court has dismissed the petition seeking a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of Section 5 (2) of Act LXVI of 1992 on the Register of Personal Data and Residential Addresses of Citizens. In the view of the Court, the amendment to the Act can only affect the place of exercise of the right to vote in single-member constituencies, but does not otherwise affect the conditions of political participation in any substantive way.

more

STATEMENT BY THE CHIEF JUSTICE OF THE CONSTITUTIONAL COURT IN DEFENCE OF THE RULE OF LAW

15 December 2021

In an open letter, Tamás Sulyok has expressed his reaction to the political ideas that have been gaining momentum in recent months, which envisage the abolition with one stroke of a pen of the Fundamental Law and the dissolution of the Constitutional Court in the event of a change of Government.

more

Decision of the Constitutional Court on the interpretation of the provisions of the Fundamental Law allowing the joint exercise of powers

10 December 2021

The Constitutional Court, in connection with the judgment of the Court of Justice of the European Union on the status of foreigners unlawfully residing in the territory of the Hungarian State, has ruled, on the basis of the interpretation of the Fundamental Law, that where the joint exercise of competences is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. However, the Constitutional Court did not assess whether the incomplete effectiveness of the joint exercise of competences was realised in the specific case. The Constitutional Court also emphasised in its decision that the abstract interpretation of the Fundamental Law cannot be the subject of a review of the CJEU judgment, nor does the procedure in the present case extend to the examination of the primacy of EU law.

more

THE RULES ON ADDITIONAL PRIVILEGES ATTACHED TO THE IMMUNITY CARD DO NOT INFRINGE THE PRINCIPLE OF NON-DISCRIMINATION

2 November 2021

The Constitutional Court rejected the motions to establish a conflict with the Fundamental Law and annul certain provisions of the Government Decree No. 484/2020. (XI. 10.) Korm. on the second phase of protective measures applicable during the period of state of danger. The provisions challenged by a large number of petitioners gave immunity certificate holders additional rights compared to those who did not have them.

more

THE GOVERNMENT DECREE ISSUED IN THE STATE OF DANGER ON CERTAIN RULES AFFECTING HIGHER EDUCATION IS NOT IN CONFLICT WITH THE FUNDAMENTAL LAW

2 November 2021

The Constitutional Court rejected the judicial initiative to declare that Government Decree No. 522/2020 (XI. 25.) Korm. on certain rules affecting higher education in times of the state of danger is contrary to the Fundamental Law, to annul it and to prohibit its application. The Constitutional Court found in its decision that the enforcement of the contested regulation does not violate the autonomy of higher education guaranteed by the Fundamental Law, provided that the maintainer, in making its decision, took the measure under the contested regulation in cooperation with the higher education institution and with the consent of the body representing the autonomy of the higher education institution. The existence of the consent of the Senate must be examined by the ordinary court in its proceedings.

more

The operation of the Constitutional Court during the epidemic emergency and the restrictive measures imposed following a new wave of the epidemic

8 March 2021

During the period of the epidemic emergency and the restrictive measures imposed due to the new wave of the epidemic, the Constitutional Court’s bodies will continue to meet online and the court staff will work in general from home.

more

The expression of opinion is free, the dividing line is the protection of human dignity

5 February 2021

The Constitutional Court decided in its most recent sitting on two cases implying the assessment of the limitations of the freedom of expression and freedom of the press, as well as the constitutionality of relevant judgements by the courts and the Curia. In both cases, the fundamental statement made by the Constitutional Court was paying respect to the inviolability of human dignity as also enshrined in the Fundamental Law.

more

The government decree classifying as of national strategic importance the intention to extend the Central European Press and Media Foundation is not in conflict with the Fundamental Law

25 June 2020

In its decision published today, the Constitutional Court found that the Government Decree on the classification as of national strategic importance the acquisition of the Central European Press and Media Foundation (KESMA), ECHO HUNGÁRIA TV Television, Communication and Service Private Limited Company, Magyar Idők Kiadó Limited Liability Company, New Wave Media Group Communications and Service Provider Limited Liability Company and OPUS PRESS Private Limited Company in not in conflict with the Fundamental Law.

more
All NEWS AND EVENTS

LATEST DECISIONS/SUMMARIES

Decision 3063/2022 on the definition of the place of residence

14 February 2022

The Constitutional Court has dismissed the petition seeking a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of Section 5 (2) of Act LXVI of 1992 on the Register of Personal Data and Residential Addresses of Citizens. In the view of the Court, the amendment to the Act can only affect the place of exercise of the right to vote in single-member constituencies, but does not otherwise affect the conditions of political participation in any substantive way. The petitioning Members of the National Assembly requested the Constitutional Court to find that Section 5 (2) of the Act, which entered into force on 1 January 2022, as amended by Act CXIX of 2021, was unconstitutional by non-conformity with the Fundamental Law and to annul this provision retroactively to its entry into force. Under the definition prior to the amendment, the conceptual element of the place of residence of a citizen was habitual residence. Accordingly, the citizen’s place of residence was the residential address of the dwelling in which the citizen lived. By contrast, the amendment removes the requirement of habitual residence, since, pursuant to the amended wording of the Act, the place of residence of a citizen is the residential address of the dwelling or accommodation which serves as the basis for the citizen’s official relations with the State and with natural and legal persons and organisations without legal personality, as well as for his rights and obligations linked to the place of residence. The petitioning Members of the National Assembly consider that, as a result of the amendment, the register of residential addresses is no longer able to provide proof of actual presence of a person in the place of residence. Since that register forms the basis for the electoral roll, the requirement of a closer link with the place of residence, which is of decisive importance in the mixed electoral system for the general election of Members of the National Assembly and in the referendum, is no longer applicable. The contested provision therefore infringes the requirement of the rule of law laid down in Article B (1) of the Fundamental Law and restricts the right to vote and to hold a referendum without a legitimate aim. In its decision, the panel of the Constitutional Court explained that the amendment to the concept of the permanent place of residence was necessary for legislative reasons, because the register of personal data and residential addresses of citizens, as established by the Central Statistical Office, did not reflect the reality in a significant number of cases, and the new definition of the concept of permanent place of residence chosen by the legislator seemed suitable to resolve the difference between the data content of the publicly authentic register and the actual factual situation. Apart from the amendment of the concept of the permanent place of residence, the legislator did not change either the mixed electoral system or the rules on the right to vote in local and European Parliament elections and local referendums and in single-member constituencies, which are closely related to the permanent place of residence. Nor does the change in the concept of the permanent place of residence in itself affect the conditions for political participation. Apart from the right to participate in local and European Parliament elections and local referendums, the change in the concept of the permanent place of residence can only affect the place where the right to vote in a single-member constituency is exercised, that is, the single-member constituency in which a voter entitled to vote in a single-member constituency can vote. In the light of the above considerations, the Constitutional Court dismissed the petition for a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of with retroactive effect to the date of its entry into force of the impugned provision.

more

Decision 32/2021 on the joint excercise of powers

10 December 2021

The Constitutional Court, in connection with the judgment of the Court of Justice of the European Union on the status of foreigners unlawfully residing in the territory of the Hungarian State, has ruled, on the basis of the interpretation of the Fundamental Law, that where the joint exercise of competences is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. However, the Constitutional Court did not assess whether the incomplete effectiveness of the joint exercise of competences was realised in the specific case. The Constitutional Court also emphasised in its decision that the abstract interpretation of the Fundamental Law cannot be the subject of a review of the CJEU judgment, nor does the procedure in the present case extend to the examination of the primacy of EU law. On behalf and under the authorisation of the Government, the Minister of Justice submitted a petition to the Constitutional Court seeking an interpretation of Article E (2) and Article XIV (4) of the Fundamental Law, because the implementation of the judgement of the CJEU delivered on 17 December 2020 in Case C-808/18 raises a constitutional problem that warrants an interpretation of the Fundamental Law. The Constitutional Court, interpreting the ‘Europe Clause’ of the Fundamental Law, held that where the exercise of joint competences with the Union is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The Constitutional Court further held that where the incomplete effectiveness of the joint exercise of competences results in consequences that raise the issue of the violation of the right to identity of persons living in the territory of Hungary, the Hungarian State shall be obliged to ensure the protection of this right in the context of its obligation of institutional protection. Finally, the Constitutional Court held that the protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and State structure shall be part of its constitutional identity. The Government sought an interpretation of the Fundamental Law from the Constitutional Court. The petitioner submits that the implementation of the judgement of the Court of Justice of the European Union in case C-808/18 raises the constitutional problem at issue if Hungary allows the implementation of an EU legal obligation which may lead to a foreign national illegally staying in Hungary remaining in the territory of a Member State for an indefinite period of time and thus becoming part of the population of that State. In its decision, the Constitutional Court observed that the abstract constitutional interpretation cannot be converted into a position applicable to the specific case giving rise to the petition, and therefore the Constitutional Court only addressed the genuine problems of constitutional interpretation directly derivable from the issue. The Constitutional Court thus interpreted Article E (2) of the Fundamental Law. The Constitutional Court was not in a position to assess whether the incomplete effectiveness of the joint exercise of competences had been resolved in the specific case. Nor was the Constitutional Court able to take a position on the question whether the petitioner’s argument that the CJEU judgement could lead to foreign nationals becoming part of the population of Hungary was correct. The Constitutional Court found that the above was a matter to be judged by the body applying the law and not by the Constitutional Court. However, the Constitutional Court stressed that the abstract interpretation of the Fundamental Law cannot be aimed at reviewing the judgement of the CJEU, nor does the Constitutional Court’s procedure in the present case, by its very nature, extend to the review of the primacy of EU law. The Constitutional Court had to assess whether the incomplete effectiveness of the joint exercise of competences could lead to a violation of Hungary’s sovereignty, constitutional identity or fundamental rights and freedoms (including, in particular, human dignity) enshrined in the Fundamental Law. The Constitutional Court first considered the possible violation of the fundamental rights and freedoms guaranteed by the Fundamental Law. The Constitutional Court pointed out that Man, as the most elementary constituent of all social communities, especially the State, is born into a given social environment, which can be defined as the traditional social environment of man, especially through its ethnic, linguistic, cultural and religious determinants. These circumstances create natural ties, determined by birth, which shape the identity of community members. These natural ties or qualities, which are determined by birth, are seen as circumstances that influence a person’s self-determination, which, on the one hand, are created by birth and, on the other hand, are qualities that are difficult to change. Protection under constitutional law should not be an abstract, static protection of the individual detached from his or her historical and social reality: It must take into account the dynamic changes in contemporary life. In the Constitutional Court’s view, since the State cannot make unreasonable distinctions regarding fundamental rights on the basis of these characteristics, it must also ensure, in the light of its obligation of institutional protection, that changes to the traditional social environment of the individual can only take place without significant harm to these determining elements of identity. The Constitutional Court stated, that the joint exercise of the competences through the institutions of the European Union may not lead to a lower level of protection of fundamental rights than that required by the Fundamental Law. In the same vein, the fact that an EU legal norm binding on the Member States meets the requirements of the Constitution but is not properly implemented, that is, the result of the binding norm is not or only partially enforced, cannot lead to a lower level of protection of fundamental rights than required by the Constitution. In that context, the Constitutional Court has held that if the joint exercise of the competences through the institutions of the European Union is incomplete, Hungary is entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until such time as the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The decision was accompanied by a concurring reasoning by justice dr. Czine Ágnes, dr. Dienes-Oehm Egon, dr. Horváth Attila, dr. Hörcherné dr. Marosi Ildikó, dr. Márki Zoltán, dr. Salamon László, dr. Schanda Balázs, dr. Szabó Marcel and dr. Szívós Mária and a dissenting opinion by justice dr. Hörcherné dr. Marosi Ildikó and dr. Pokol Béla.

more

Decision 4/2021 on the investment project in relation to the capacity conservation of the Nuclear Energy Plant of Paks

22 January 2021

In addition to rejecting the motion for posterior norm control, the Constitutional Court established as a constitutional requirement that Section 5 of the Act on the investment project in relation to the capacity conservation of the Nuclear Energy Plant of Paks and modifying certain related Acts is applicable to the subcontractors of the Russian party and the subcontractors of the Hungarian party only if they are considered to be organisations performing a public duty. Section 5 of the Act excludes, for a period of thirty years from the date of its creation, the disclosure of all “business data”, “technical data” and “data on which a decision is based” as data of public interest related to the implementation of the expansion of the Paks Nuclear Power Plant. The petitioning MPs asked the Constitutional Court to declare this provision to be contrary to the Fundamental Law and to annul it with retroactive effect to its promulgation. According to the petitioners, this is contrary to the fundamental right to have access to and disseminate data of public interest and to the provision of the Fundamental Law stating that all organisations managing public funds must give public account of their management of public funds. In its decision, the Constitutional Court established that the disclosure of the data for the purpose of substantiating the decision may be restricted by a specific Act of Parliament in accordance with the Act on the Right to Informational Self-Determination and Freedom of Information. The protection of national security interest and intellectual property rights indicated by the challenged Act may justify a restriction on the disclosure of the data for the purpose of substantiating the decision. The Constitutional Court further held that, contrary to the petitioners’ claim, the text of the Act prescribing thirty years for the closure of the data concerned cannot be considered a disproportionate restriction, as it cannot be held an ex lege restriction; it is only a statutory presumption assuming that within this period the publicity of the data could damage the values to be protected. However, as the Act itself requires a “public interest test” to be performed, the restriction can only be applied if there is a greater public interest in it than in the disclosure of the data concerned. In view of all this, the Constitutional Court found that the challenged provision of the Act did not cause any unnecessary or disproportionate restriction of the referred to provisions of the Fundamental Law, therefore it rejected the petitioners’ motion for posterior norm control. However, in order to facilitate the application of the law, the Constitutional Court considered it necessary to establish as a constitutional requirement: the challenged provision of the Act is applicable to the subcontractors of the Russian and Hungarian parties only if they are to be regarded as organizations performing a public duty.

more

Decision 3/2020 on purchasing electronic cigarette

3 January 2020

Acting ex officio, the Constitutional Court stated that the omission by the National Assembly had resulted in a situation in conflict with the Fundamental Law, because together with restricting the retail trade of electronic cigarettes and the connected products to the tobacco shops with mandatory concession, it failed to provide appropriate compensation for those affected by the restriction of the right to enterprise, therefore, the Constitutional Court called upon the National Assembly to meet its obligation of legislation. The decision is based on the initiative of MPs for posterior norm control and the constitutional complaint submitted by a company trading with electronic cigarettes and its accessories, who challenged the provision in the Act on repelling smoking among young people and on the retail trade of tobacco products, restricting to tobacco shops the retail trade of certain products, such as electronic cigarette, refill cans and electronic devices imitating smoking. Since 2011, the petitioner company has been specialised on the retail trade of electronic cigarette and its accessories through its webshop and its shops, however, due to the amendment of the law in 2016, it had to terminate its commercial activity related to the relevant products, it had to close its shops and to dismiss two thirds of its employees, and it could not sell the remaining stock of products. Due to the prohibition of online sales, the business activity of the petitioner company has become impossible, and the law-maker failed to provide for compensation, failed to provide for an opportunity to continue its operation by announcing new concessions. According to the petitioner, the regulation violated its right to property and the right to enterprise, and it is also against the prohibition of discrimination. In the context of the right to enterprise, the Constitutional Court pointed out in the decision that the scope of protection of this fundamental right covers both the market entry and the continuation of a commenced activity, although it underlined that the relevant fundamental right does not guarantee that no changes may take place in the legal environment. In enacting a limitation, the legislator is bound to employ the most moderate means suitable for reaching the specified purpose, i.e. the limitation should not exceed the level absolutely necessary for achieving the constitutionally justifiable objective. In the context of the restriction of the right to enterprise, the subject matter of the explicit concern is the manner of its practical realisation: the position of the enterprises engaged in the retail trade of electronic cigarettes already operating at the time of the entry into force of the amendment of the law was made less advantageous due to the fact that the law-maker did not pay any attention to their fundamental right to maintain their business activity, or to the actual damage incurred in the particular case, resulting from the statute under review. Based on the above, for the purpose of eliminating the situation being contrary to the Fundamental Law – also with due regard to the need to proceed by saving the law in force – the Constitutional Court stated that there has been a situation contrary to the Fundamental Law caused by an omission, as the provisions of the Act and of the fundamental Law may be harmonised by way of establishing a legislative omission and by making a call upon the law-maker.

more

Decision 23/2019 on disclosure the image of a person exercising public authority

18 July 2019

Summary of the decision: In a constitutional complaint procedure, the Constitutional Court annulled the judgement of the Budapest-Capital Regional Court of Appeal delivered in the subject matter of the violation of the right to image. The television channel that submitted the constitutional complaint had aired a report in the news about a trial at the Curia, and in the broadcast the face of the accused person had been masked, but the face of the staff member of the penal institution accompanying the accused person had been visible. The employee of the penal institution had filed a claim against the TV channel and as a result the proceeding courts condemned the channel for the violation of personality rights, as the concerned employee of the penal institution had not agreed to the disclosure of his image. The petitioner then submitted a constitutional complaint with reference to the violation of the freedom of expression and the freedom of the press. According to the petitioner, the concerned video recording provided information about the events of the present time and it was a report about an event challenging the public interest in terms of exercising public authority, therefore no consent by the affected person was necessary for making the recording and airing it. The Constitutional Court held that the relevant constitutional question in the case was whether the image of a person exercising public authority at a court trial could be disclosed freely with reference to the freedom of the press, i.e. whether a media content showing an identifiable a person attending a court trial and exercising public authority there could be made accessible. As interpreted by the Constitutional Court, if a person exercising public authority becomes identifiable in this quality in a certain media content, the protection of the image, in itself, shall not justify the restriction of the freedom of the press. The “protection of the image” may only restrict the freedom of the press, if the disclosure of the image causes the injury of a fundamental right or of another constitutional value. Therefore, as a general rule, the persons exercising public authority should tolerate the disclosure of their image during their official activities. The order of the trial and the independence of the judicial system are constitutional values that, in general, justify the restriction of the freedom of the press, however, it does not mean that the activity of the press could be totally restricted at a court trial. Nevertheless, if the persons directly affected by the lawsuit do not raise an objection against reporting by the media, then other persons may not challenge the exercising of the freedom of the press by referring to the order of justice. As the courts that had proceeded in the case had delivered judgements contrary to these constitutional limitations, the Constitutional Court annulled the challenged judgements.

more

Decision 19/2019 on the violation of the rules on staying habitually on public ground

18 June 2019

The regulation in the Act on Offences regarding the prohibition of staying habitually on public ground is not contrary to the Fundamental Law. The Constitutional Court rejected the judicial initiatives challenging the provisions of the Act on Offences prohibiting staying habitually on public ground. The Constitutional Court stated as a constitutional requirement that the challenged sanction under the law applicable to minor offences shall only be applicable, if the placement of the homeless person was verifiably granted at the time of committing the conduct.

The petitioning judges held the challenged provisions to be contrary to the principle of the rule of law as well as the right to human dignity. They referred to a decision of the Constitutional Court adopted in 2012 – annulling a statutory definition of a minor offence of essentially similar content – as well as to the text of the Fundamental Law amended meanwhile, which does not justify the criminalisation of staying habitually on public ground.

In the decision published today by the Constitutional Court, with due account to the amended regulation of the Fundamental Law – prohibiting for everyone in general staying habitually on public ground – it took a stand on the inapplicability of the 2012 decision of the Constitutional Court. The Constitutional Court shall follow the text in force of the Fundamental Law and it is not empowered to review the content of the Fundamental Law or the amendments of the Fundamental Law. In the course of exercising his or her constitutional rights, the individual is responsible not only for himself or herself, but also for the other members of the community; the exercising of rights should be in balance with his or her responsibility for the community.

Violating a prohibition laid down in the Fundamental Law, i.e. an unlawful conduct shall not be protected by the Fundamental Law. According to the decision, the challenged regulation complies with the constitutional requirement applicable to the law on minor offences, and also enforces its guarantees. The regulation shall impose a sanction against anyone who resists to dispense with staying habitually on public ground despite of the relevant prohibition laid down in the Fundamental Law and despite of receiving multiple explicit warnings. Therefore, the relevant statutory definition of the offence does not sanction a state (being homeless), but it shall impose a legal consequence on violating the obligation of cooperation.

The Constitutional Court pointed out that in the respective case the examination focused on the right of self-determination and the autonomy of action, as the restrictable part of the former, rather than the untouchable “core dignity” of human dignity. This, however, may not result in the violation of a certain prohibition under the Fundamental Law, or the committing of a minor offence. In line with the values of the Fundamental Law, no one shall have the right to be destitute or homeless; this state is not part of the right to human dignity.

To the contrary, if the State left the individual alone without caring for him or her, it would cause an injury, since the right to human dignity is seriously violated by the marginalisation of the individual from the human society. The Constitutional Court underlined that the petitioning judges failed to verify that those who use the services of the welfare system are treated as objects and that they are dehumanized. Neither is it verified that in case of using the services of the welfare system, the affected persons are placed among circumstances without human dignity. If indeed such a situation would still occur, the protection of fundamental rights shall be granted for the party whose right has been violated.

Furthermore, the State’s obligation of protecting institutions shall result from the Fundamental Law. The State can fulfil this obligation by providing for introducing the affected persons into the welfare system. In the absence of cooperation by the individual, the sanction under the law applicable for minor offences shall be the ultimate tool available for the State. At the same time, the Constitutional Court stated as a constitutional requirement that the challenged sanction under the law applicable to minor offences shall only be applicable, if the placement of the homeless person was verifiably granted at the time of committing the conduct. In addition, the authorities applying the law should take into account the constitutional obligation aimed at protecting the vulnerable, as well as the fact that the protection of the rights of the affected persons can only be granted by way of introducing them into the welfare system. Justice Béla Pokol attached a concurring reasoning and Justices Ágnes Czine, Imre Juhász, Ildikó Hörcherné Marosi, Balázs Schanda, István Stumpf and Péter Szalay attached dissenting opinions to the decision.

more

Decision 14/2019 on establishing the conflict with the Fundamental Law and on annulling the ruling No. 59.Szk.1163/2017/6/I of the Szombathely District Court

17 April 2019

The Constitutional Court stated that the ruling No. 59.Szk.1163/2017/6/I of the Szombathely District Court is in conflict with the Fundamental Law, therefore the Constitutional Court annulled it. The petitioners of the constitutional complaint painted with colour paint the cracked parts of a pavement segment partly for the purpose of preventing accidents and partly for the purpose of calling the attention of the authority and of the general public to the defects of the pavement surface. The authority of infractions warned the petitioners because of committing a public cleansing misdemeanour. The court proceeding with the case on the basis of the objection made by the petitioners then concluded that the petitioners’ conduct of using other person’s property for the expression of their opinion without the consent of the owner had been dangerous to the society as it had violated the owner’s right of disposal. The petitioners turned to the Constitutional Court against the final ruling of the court. In the petitioners’ opinion, the judicial decision injures their right to the freedom of expression as well as their right to the freedom of artistic creation. The Constitutional Court has found the petition well-founded. All conducts bearing a communicative message and not affecting the object of private property or affecting it with the owner’s consent, and not causing damage to the object of public property shall be covered by the constitutionally protected realm of expressing opinions. The person expressing an opinion share his or her ideas not only by saying words, but also by using images, symbols or by wearing items of clothing. It is the duty of the courts to assess whether the conduct under review is protected by the freedom of expression or it is an act of vandalism. In the present case, the conduct was an act of communication interpretable by the public both according to the subjective intention of the person “expressing the opinion” and according to an objective assessment. The Constitutional Court stated: the court failed to interpret the petitioners’ conduct adequately, and it restricted disproportionately the petitioners’ right to the freedom of expression. The court also failed to take note of the absence of the conduct’s dangerousness to the society. Justices dr. Egon Dienes-Oehm, dr. István Balsai, dr. Imre Juhász, dr. Attila Horváth, dr. Béla Pokol and dr. Mária Szívós attached their dissenting opinions to the decision, while Justices dr. István Stumpf and dr. András Varga Zs. attached concurring reasonings.

more

Decision 2/2019 on interpretation of the Fundamental Law

8 March 2019

On behalf of the Government of Hungary, the minister of justice submitted a motion to the Constitutional Court requesting the interpretation of the Fundamental Law concerning the relation between the Fundamental Law and the law of the European Union. The background of the case is that the European Commission sent an official notice to Hungary – in the framework of an infringement proceeding – in which it explained that according to the Commission’s interpretation the provisions of the Fundamental Law on asylum violate the relevant regulations of the European Union. The particular constitutional issue raised by the petitioner was the relation between the interpretation of the Fundamental Law by an organ of the European Union and the genuine interpretation provided by the Constitutional Court.The Constitutional Court pointed out: Hungary participates in the European Union in the interest of developing the European unity, for the purpose of expanding the freedom, prosperity and security of European nations. The Union law does not fit into the hierarchy of the domestic sources of law; it has been made part of the legal system by a constitutional order incorporated in the Fundamental Law. In most cases the parallel existence of Union law and domestic law does not cause any constitutional dilemma as the two normative systems are based on a common values. However, with regard to the assessment of certain national norms, the Constitutional Court and the European Union may reach different conclusions. Since the Fundamental Law requires compliance with the Union law, as a constitutional obligation, collisions may be resolved by paying respect to constitutional dialogue.However, the genuine interpretation of the Fundamental Law is the duty of the Constitutional Court and all organs or institutions shall respect it in their own procedures. The Constitutional Court has committed itself to constitutional dialogue: in the present case it interpreted the Fundamental Law in line with the so called Europe-friendliness by interpreting the content of the norm to also comply with the law of the European Union.Regarding asylum, the Constitutional Court underlined: the right to asylum is not the refugee’s individual subjective right and it stems from the international treaties undertaken by Hungary. A non-Hungarian national who arrived to the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution shall have a claim, protected as a fundamental right, to have his or her application assessed by the authority. It is the duty of the Parliament to determine and lay down in a cardinal Act the fundamental rules on granting asylum.Justices dr. Egon Dienes-Oehm, dr. István Stumpf, dr. Mária Szívós and dr. András Varga Zs. attached concurring reasonings, and Justices dr. Ágnes Czine, dr. Imre Juhász, dr. Béla Pokol and dr. László Salamon attached dissenting opinions to the decision.

more

Decision 3/2019 on the support of illegal immigration

7 March 2019

Constitutional complaint aimed at establishing the lack of conformity with the Fundamental Law and annulling Section 353/A of the Act C of 2012 on the Criminal Code (facilitation and support of illegal immigration)

more

Decision 3/2018 on the transparency of the foundations established by the Hungarian National Bank

20 April 2018

The Constitutional Court established: there is a lack of conformity with the Fundamental Law manifested in an omission, as the legislator failed to secure, by way of the Act CLXXXI of 2007 on the transparency of support provided from public funds, the transparency of the support provided to natural persons by the foundations established by the Hungarian National Bank and financed from public funds. In the first case serving as the basis of the constitutional complaint, the petitioner filed a request for data related to grant applications to one of the foundations of the National Bank of Hungary. Due to the refusal of the data request, the petitioner brought an action for the judicial review of the refusal. The Budapest-Capital Regional Court proceeding in the case on first instance obliged the defendant to perform the data request, but it rejected the claim aimed at obtaining the personal data of the natural person applicants. Then the Budapest-Capital Regional Court of Appeal, as the court of second instance, also refused to bind the foundation to disclose the names of the winner applicants, as it held that the data of the natural person applicants were neither data of public interest nor data public on grounds of public interest. The case underlying the second constitutional complaint had a similar course of events. The petitioner claimed in both constitutional complaints that the challenged judgements violate the right to have access to data of public interest. The Constitutional Court has not found the constitutional complaints well-founded. [It would fall into the competence of the Constitutional Court if the task to be completed was the interpretation of the concept of data relating to public funds and national assets, namely the types of data that the Fundamental Law qualifies as data of public interest in this scope. However, the question raised in the basic case was the accessibility of the personal data of natural persons who are winners of the applications for grants of the defendant organisations financed from public funds. Thus the only question the Constitutional Court could examine about the judicial decision was whether the judicial decision violated or not the scope of interpretation set by the Fundamental Law, this way restricting access to the data of public interest (data public on grounds of public interest). In the present case, the Constitutional Court could not verify the a breach of the Fundamental Law by the court. Still the legislator must adopt regulations securing the balanced enforcement of fundamental rights to the greatest possible extent. However, the the legislator failed to secure appropriately the transparency of the supports provided by the foundations established by the Hungarian National Bank and financed from public funds and the accessibility of the data related to the beneficiaries of this fund. The Constitutional Court – acting ex officio – verified the violation of the Fundamental Law, manifested in an omission, and called upon the Parliament to meet its legislative duty by 30 September 2018. Justices dr. Béla Pokol and dr. András Varga Zs. attached dissenting opinions to the decision.

more
ALL DECISIONS/SUMMARIES