News

THE ACT ON ADMINISTRATIVE COURTS IS IN LINE WITH THE FUNDAMENTAL LAW

21 June 2019

One quarter of the Members of Parliament initiated at the Constitutional Court the annulment of the Act on Administrative Courts. The petitioners alleged, on the one hand, the violation of the rules on the preparatory period, on the separation of powers on the other hand, and thirdly the violation of the requirement of the impartiality and the unbiased decision making of the adjudicating judges.

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THE PROHIBITION OF STAYING HABITUALLY ON PUBLIC GROUND IS NOT AGAINST THE FUNDAMENTAL LAW, HOWEVER, THE STATE SHOULD APPLY THE SANCTION WITH ENCANCED CIRCUMSPECTION

14 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.

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THE CONSTITUTIONAL COURT ORGANISED IN BUDAPEST A EUROPEAN LEVEL SUMMIT CONFERENCE ON CONSTITUTIONAL IDENTITY

9 March 2019

For the first time in the history of the institution, accepting the invitation of the President of the Constitutional Court, Koen Lenaerts, the President of the Court of Justice of the European Union and Andreas Voßkuhle, the President of the German Federal Constitutional Court arrived to Budapest and held keynote speeches at the conference “Constitutional EU-dentity 2019”. The constitutional courts of Austria, the Netherlands, the Czech Republic, Latvia, Luxembourg, Italy, Switzerland and Slovenia were represented by their presidents or vice-presidents. In addition to our foreign guests, the President of the Republic, the President of the Constitutional Court, the Minister of Justice, Hungarian dignitaries of public law, scholars of constitutional law, public administration professionals and representatives of the academic sphere also attended the conference. The matchless international professional event took place at the Hungarian Academy of Sciences. The conference offered an exceptional opportunity for the participants to facilitate the international dialogue of constitutional courts.

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THE CONSTITUTIONAL COURT’S INTERPRETATION OF THE FUNDAMENTAL LAW SHALL BE RESPECTED BY EVERYONE

5 March 2019

The Constitutional Court stated in its recent decision: the applicability of the European Union’s law in Hungary is based on the Fundamental Law. During the interpretation of the Fundamental Law, the Constitutional Court takes into account the obligations binding Hungary on the basis of its membership in the European Union and under international treaties, nevertheless, the interpretation provided by the Constitutional Court shall not be derogated by any interpretation provided by another organ. The Constitutional Court also established that granting asylum to 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 not be regarded as a constitutional obligation of the Hungarian State. This, however, shall not exclude that the Parliament may grant asylum to such persons under the substantive and procedural rules it may specify.

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THE CRIMINAL CODE’S NEW STATUTORY DEFINITION SANCTIONING THE FACILITATING OF ILLEGAL IMMIGRATION IS NOT IN CONFLICT WITH THE FUNDAMENTAL LAW

5 March 2019

According to the decision of the Constitutional Court, with appropriate judicial interpretation the criminal offence of facilitating illegal immigration shall not be considered realised if the aim of the activity is limited to the mitigation of the sufferings of those in need and to the humanitarian treatment of such persons. To reinforce this, the Constitutional Court laid down as a constitutional requirement that the new statutory definition shall not be applicable to the altruistic conducts that perform the obligation of helping the vulnerable and the poor.

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THE CONSTITUTIONAL COURT REJECTED THE INITIATIVE SUBMITTED BY THE PERSONS WHO VOLLEYED THE SOVIET MEMORIAL

4 March 2019

The Court examined the following: on what grounds may a physical act be regarded as an expression of opinion and whether in this context pouring paint on a monument is to be protected on the basis of the freedom of expression.

The petitioners of the constitutional complaint threw balloons filled with orange paint at the Soviet military memorial located on Szabadság Square in Budapest several times. According to their account, it was an act of raising attention to express their political opinion, namely their negative opinion about the Government’s policy of favouring Russia. The court of first instance established that the petitioners’ act classified as a minor offence of public nuisance. According to the reasoning, the apparently anti-social character of the petitioners’ act was at the same time suitable to incite indignation and alarm. The petitioners lodged an appeal to the Budapest-Capital Regional Court that maintained the force of the ruling of first instance. The court agreed that the political opinion can be expressed by means other than verbal ones, but at the same time the court also held it absolutely necessary that the target of the act should be clear for the  bystanders – an element missing in the present case.

The Constitutional Court reinforced: the citizens participate in public debates in many ways – not only in written or oral forms. The Fundamental Law protects the passing on of political opinions to others — disregarding the form of its manifestation. It is important to assess, however, whether or not a certain act falls into the scope of the freedom of expression. The Constitutional Court pointed out – taking also into account the case law of the Supreme Court of the United States and of the European Court of Human Rights – that in order to consider an act as an expression of opinion, the perpetrator’s intention of acting for the purpose of expressing his or her opinion is a necessary but not sufficient condition. The act under review should also be a communication, which is interpretable by the public.

It is a special feature of monuments that they express in physical form their message addressed to the community. Monuments can be covered, unveiled, enwreathed etc. Negative opinions, protests about a monument may also take a physical form. Blemishing a monument, e.g. pouring removable paint on it may, under certain circumstances, fall into the scope of expressing opinion in public affairs, but only if the act is a communication interpretable by the public in line with the subjective intention of the person “expressing his or her opinion” and also according to objective evaluation. Even in such a case it should be assessed in the concrete case whether the freedom of expression or the protection of public order should enjoy priority.

As underlined by the Constitutional Court in this case: the interpretation of the law provided by the court of second instance, i.e. that the aspects of the freedom of expression are only applicable under certain conditions to the case of pouring paint on a statue, is compatible with the Fundamental Law. The court did not violate the criteria of constitutionality when it failed to include the concrete act under the scope of the freedom of expression, therefore the Constitutional Court rejected the constitutional complaint.

 

Judges dr. Ágnes Czine, dr. Imre Juhász, dr. Béla Pokol, dr. Mária Szívós attached dissenting opinions, while Judges dr. Egon Dienes-Oehm,  dr. László Salamon, dr. István Stumpf, dr. Marcel Szabó  and dr. András Varga Zs. attached concurring opinions to the decision.

The full text can be accessed here and the data-sheet of the decision is available here.

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THE CONSTITUTIONAL COURT REJECTED THE INITIATIVE SUBMITTED BY THE MEMBERS OF PARLIAMENT CONCERNING THE REGULATION ON POSTERS

18 December 2018

Fifty-two Members of Parliament initiated the annulment by the Constitutional Court of the amendment of the Act on Townscape Protection. The Constitutional Court rejected the petition and it underlined in its decision, among others: the invalidity under public law of the challenged regulation may not be established, it is not within the scope that requires regulation in a cardinal Act, it is clearly interpretable by the market operators and neither does it violate the freedom of expression.

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CONSTITUTIONAL COURT: THE COURTS HAVE TO EXAMINE IN EACH CASE THE PURPOSE OF THE LAWS

18 December 2018

The Constitutional Court pointed out in its recent decision: the Fundamental Law sets forth as a constitutional obligation of the courts to interpret the laws primarily in accordance with  their purpose, however, the courts may also take into account other aspects. Nevertheless, any weighing by the court that completely excludes the assessment of the purpose of the statutory regulation is contrary to the Fundamental Law.

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CONSTITUTIONAL COURT: THE COURT MUST ASSESS ON A CASE-BY-CASE BASIS THE POSSIBILITY OF TAKING ACTION AS A SUPPLEMENTARY PRIVATE PROSECUTOR IN THE CASE OF FALSE ACCUSATION

18 December 2018

The Constitutional Court underlined: in the case of false accusation, the courts have to individually assess the facts of the case and all circumstances of the concrete case in order to reach a decision in compliance with the Fundamental Law about taking action as a supplementary private prosecutor.

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LATEST DECISIONS/SUMMARIES

Decision 21/2018 on disability benefits

21 June 2019

The lack of a regulation allowing for the appraisal of the actual condition of a person with a reduced ability to work violates Hungary’s international obligations.

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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)

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