News

International meetings with Constitutional Courts and other institutions

13 November 2018

The Hungarian Constitutional Court’s meetings with Constitutional Courts, other institutions and participation in international conferences 2015-2018

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Statistics of the third quarter of 2018

11 November 2018

The latest statistics on the activity of the Constitutional Court

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According to the provisions in force of the Fundamental Law, the agreement on the Unified Patent Court cannot be published in Hungary

9 July 2018

On behalf of the Government of Hungary, the minister of justice submitted a motion to the Constitutional Court requesting the interpretation of the relevant provisions of the Fundamental Law concerning the potential publication of the agreement on the Unified Patent Court.

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The protection of personality rights should be considered more severely in the case of the title of a press article than with regard to other parts of the article

9 July 2018

As established in the Constitutional Court’s recent decision: the title is not merely one of the thoughts presented in the press article, it is a highlighted element enjoying a central role in grasping the content of the article and it may have an intensified effect with respect to the injury of personality rights as well. The title should be examined autonomously, independently from other parts of the article, and it should not contain any material, misleading inaccuracy or false information that bears importance with respect to the totality of the article.

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The Constitutional Court made a decision in the case of a transsexual refugee

2 July 2018

The Court established: there is a lack of conformity with the Fundamental Law manifested in an omission, as the legislator failed to regulate the procedure of the change of surname in the case of lawfully settled non-Hungarian citizens resulting in a discriminative situation.

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In the spirit of the European constitutional dialogue the Constitutional Court suspended its procedures in the cases related to the Act on national higher education and the “Act on NGOs”.

12 June 2018

In both cases the European Commission launched infringement procedures against Hungary at the Court of Justice of the European Union. In the decision No. 22/2016. (XII. 5.) AB the Constitutional Court established that “the opportunity of review reserved for the Constitutional Court should be applied by taking into account the obligation of cooperation, in view of the potential enforcement of European law”. In the present cases the Constitutional Court concluded that with regard to the fundamental rights’ context and the obligation of cooperation within the European Union, it is necessary to wait for the closing of the procedures pending at the European Court of Justice.

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The Constitutional Court rejected the constitutional complaint challenging the referendum on the opening hours of the “party district”

19 February 2018

Persons or organisations may submit a constitutional complaint to the Constitutional Court against a judicial decision if they themselves are affected by the case and the decision violates their rights laid down in the Fundamental Law. The Constitutional Court’s decision pointed out: the regulation to restrict the opening hours in the party district, as challenged by the petitioner, has not yet been adopted, threfore the violation of the rights could not have taken place. Although the Constitutional Court rejected the constitutional complaint related to the referendum question, the petitioner shall be free to file – after exhausting the appropriate possibilities for legal remedy – a direct constitutional complaint to the Constitutional Court if, in the future, the local government adopts a decree considered by the petitioner to be contrary to the Fundamental Law.

 

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Violating human dignity during a public debate is not acceptable

22 January 2018

As emphasized by the Constitutional Court in its recent decision: the freedom of expression enjoys extraordinary protection in the scope of debating public affairs, as it is a requirement under the formation of democratic public opinion that all citizens of the society should be able to express their thoughts freely. Accordingly, the expression of opinions about public affairs can only be restricted in a limited scope when it violates the unrestrictable essence of human dignity that determines the human status, i.e. if it is aimed at humiliating the human core of the other person. The freedom of expression shall not be applicable to such communications.

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Deciding about acknowledging a church is not only within the National Assembly’s scope of competence, it is a duty of the National Assembly

22 January 2018

The National Assembly has 60 days to make a decision on acknowledging a church, but at present there are no legal sanctions whatsoever connected to the failure to do so, resulting in the absence of a legal remedy for the affected religious organisation, if no decision is adopted. On the other hand, the Constitutional Court specified as a requirement under the Fundamental Law that the rules of fair procedure should also be enforced during the procedure aimed at obtaining the status of “established church”. Therefore the Court established in its latest decision the existence of an omission resulting in the violation of the Fundamental Law and it called upon the National Assembly to adopt legislation.

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LATEST DECISIONS/SUMMARIES

Decision 12/2017. (VI. 19.) on annulling certain provisions of the Act on National Security Services

10 November 2018

The Constitutional Court established in its decision announced in its open session of 13 June 2017 that certain provisions of the Act on National Security Services violate the judicial independence enshrined by the Fundamental Law and the fundamental right to the respect of privacy, therefore it annulled these provisions. Although the protection of national security interests is a constitutional objective and at the same time the duty of the State, the challenged regulation may open the door to misuses that are incompatible with judicial independence. According to the Constitutional Court, the prominent role fulfilled by judicial independence in terms of the rule of law requires the rules pertaining to the judicial branch of power to be extremely clear.
The President of the Curia asked for the establishment of the lack of conformity with the Fundamental Law and the annulment of those provisions of the Act on National Security Services that deal with the national security vetting of judges and the reviewing of the national security vetting procedure. According to the petitioner, the Act exempts Members of the Parliament from the scope of persons affected by national security vetting, but judges are not exempted, thus opening the door to the arbitrary selection of the affected personal scope. According to the petitioner’s concerns, it is not possible to establish with certainty which judges are subject to the relevant regulation and which ones are not. As claimed in the petition, as the challenged statutory regulations violate – among others – legal certainty originating from the rule of law, the principle of division of powers, the right to lawful judge and the principle of judicial independence, they are in conflict with the Fundamental Law.
The Constitutional Court found that the petition was well-founded and it established that certain parts of the text of the Act on National Security Services are in conflict with the Fundamental Law therefore it annulled those provisions. In the case concerned, the Constitutional Court implemented the weighing between the alleged or real national security interest and the violation of the fundamental rights claimed by the petitioner. According to the Act, the unrestricted national security vetting of judges may become the general rule, however, in the opinion of the Constitutional Court, there is no national security interest resulting directly from the Fundamental Law that would justify its necessity.
The appropriate regulation of the termination of the service relationship is an essential element of judicial independence. The Constitutional Court established that “not maintaining” the judicial service relationship after the national security vetting may open the door to misuses which is incompatible with the requirement that judges – appointed by the President of the Republic – may only be removed from office on grounds and according to procedures specified in a cardinal Act.
The Constitutional Court also established a conflict with the Fundamental Law regarding certain elements of the new regulation dealing with the review procedure of national security vetting by claiming that the content of these provisions is not clearly defined.
Judge Dr. Ágnes Czine attached a concurring opinion and Judge Dr. Mária Szívós attached a dissenting opinion to the decision.

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Decision 20/2017. (VII. 18.) on annulling the judgement No. 21.Pf.20.741/2015/4. of the Balassagyarmat Regional Court

7 November 2018

In the underlying case of the decision, a hind dashed against a car and the driver sued the hunters’ society for damages. The court that delivered the final decision rejected the claim by stating that according to the case law applicable at the time of adjudicating the case the affected parties had to bear their own risks in the absence of culpability. However, the statutory regulation in force at the time of the collision regulated differently by allocating the liability for damages to the hunters’ society that had the right to hunt. Accordingly, the problem in the case concerned was that the statutory provisions in force when the damage was done were contrary to the case law referred to in the final decision.
The Constitutional Court holds that the court procedure neglecting, without reasoning, the legal regulation in force violated the fundamental right to fair court proceedings because the lack of reasoning came along with judicial “arbitrariness”. The court indeed acted arbitrarily when, instead of the applicable legal norms in force, it took into account a case law the underlying legal norms of which had already been annulled by the lawmaker earlier.
The Constitutional Court also established that a judicial judgement, which neglects the law in force without a due ground to do so, is arbitrary and it is incompatible with the principle of the rule of law. Based on the above, the Constitutional Court established that the judgement was contrary to the Fundamental Law and annulled it.
Judges Dr. Egon Dienes-Oehm, Dr. Ildikó Marosi and dr. László Salamon attached dissenting opinions to the decision.

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Decision 19/2017. (VII. 18.) on annulling the decision on the uniform application of the criminal law No. 2/2016

6 November 2018

In the case of a sexual act committed against a victim under the age of 12 years – if the victim is a family member of the perpetrator or the victim is in the care, custody or supervision of, or receives medical treatment from the perpetrator – the Criminal Code differentiates between the acts performed by coercion and the ones committed with the victim’s consent. In case of committing the crime with coercion, the penalty shall be imprisonment between five to fifteen years, while in the case of acting with the victim’s consent the penalty shall be imprisonment between five to ten years. On the other hand, the uniformity decision of the Curia ruled that irrespectively to committing the criminal offence with coercion or with the victim’s consent, the perpetrator shall be punishable with imprisonment between five to fifteen years.
According to the judges who turned to the Constitutional Court, the uniformity decision was in conflict with the Fundamental Law as it draws conclusions contrary to the provisions of the Criminal Code to the detriment of the perpetrator by setting the maximum duration of the imprisonment in fifteen years instead of ten years. The Constitutional Court found the judicial initiatives to be well-founded. The Court established that the Criminal Code cannot be interpreted in a way supporting the content of the uniformity decision. Therefore if the relevant act is committed with the consent of the victim, the punishment can only be imprisonment of five to ten years as laid down in the Criminal Code. The Constitutional Court pointed out in its decision that the only limitation on the judicial interpretation of the law is the subordination to the Acts of Parliament and this limit should never be crossed in the interpretations.
The Constitutional Court also mentioned in the reasoning of its decision that if the lawmaker holds the review of the Criminal Code to be justified, it is free to apply the solution chosen by the Curia, however, it takes a decision by the Parliament. Thus, according to the decision, the Parliament may remove the sexual acts against children from the present framework and regulate it in the form of an individual statutory definition.
Judge Dr. Béla Pokol attached a concurring opinion and Judges Dr. Ágnes Czine, Dr. Ildikó Hörcherné Dr. Marosi, Dr. László Salamon, Dr. István Stumpf, Dr. Marcell Szabó and Dr. Péter Szalay attached dissenting opinions to the decision.

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Decision 8/2018. (VII. 5.) on annulling Judgment Pfv.IV.20.773/2016/5 of the Kúria

6 November 2018

The defendant of the case behind the constitutional complaint was the publisher of a national daily newspaper. An article with the title “Investigation under way against bishop” – the person concretely identified by name – “due to coercion” was published in the paper. The diocesan mentioned in the title had been the plaintiff of first order and subsequently he became one of the petitioners of the constitutional complaint. Further in the article the newspaper presented the following: the prosecutor’s office ordered investigation due to the suspicion of the criminal offence of coercion, “related to the acts” of the diocesan and the commissary.
To protect their rights, the plaintiffs turned to the court. In their opinion, the newspaper falsely stated that an investigation had been started against them due to any criminal offence, as in fact they have not been suspected and the investigation took place against an unknown perpetrator. The title of the article was about an investigation against one of them, despite of the fact that they have not been incriminated. After court proceedings of multiple stages, the plaintiffs finally turned to the Constitutional Court with a constitutional complaint. According to the petitioners, the Curia acted contrary to the Fundamental Law when it held permissible for the title of a press article to contain a falsehood.
As underlined by the Constitutional Court: if the whole of the press article provides true information, then the smaller inaccuracies, falsehoods found in certain sentences or terms of the article do not form ground for legal accountability. However, the Constitutional Court holds at the same time that the criteria concerned should be considered differently when they are applied with regard to the title of an article. In the course of the assessment focusing on personality rights, the title of a press article does not form unity with other parts of the article.
Accordingly, the interpretation of the law provided by the Curia does not comply with the criteria of constitutionality in its part stating that the falsehood contained in the title of the article should be assessed in the light of the totality of the article. Therefore the Constitutional Court annulled the challenged judicial decision. There shall be a repeated procedure in the case, as it is still the duty of the court in charge to decide about the lawfulness of the concrete article concerned in the case.
Judges Dr. Attila Horváth, Dr. Béla Pokol, Dr. Mária Szívós and Dr. András Varga Zs. attached concurring opinions to the decision.

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Decision 9/2018 (VII. 9.) on the interpretation of Art E) para (2) and (4), Art Q) para (3) and Art 25 of the Fundamental Law

19 July 2018

The Unified Patent Court is a supranational judicial forum that shall act in the legal disputes relating to the infringement and validity of European patents. The relevant agreement has been signed by 25 Member States of the European Union, including Hungary.
The Government’s motion raises two abstract questions of constitutional law. The first question was whether the Constitutional Court handles the so-called enhanced cooperations similar to the present agreement as part of the EU-law, or treats them as agreements concluded on the basis of international law. In the framework of this review, the Constitutional Court recalled: as established in the Decision No. 22/2016. (XII. 5.) AB, by joining the European Union, Hungary has not given up its sovereignty but it only allowed for the joint exercising of certain powers, accordingly, the maintaining of Hungary’s sovereignty should be presumed in the course of assessing the joint exercising of powers additional to the rights and obligations specified in the founding treaties of the European Union (the so-called presumption of maintained sovereignty).
According to the Constitutional Court, the form of enhanced cooperation should enjoy special consideration under public law. Hungary is free to conclude an international treaty the only states parties of which are Member States of the European Union and which creates an institution that applies the law of the European Union, however, all this shall only become part of the EU-law if its legal basis can be found in the founding treaties. This should be examined by the Government in the case of the concrete cooperation. If in the present case the Government holds that the founding treaties of the European Union have already specified the power related to establishing the institution concerned, the legal basis of the publication of the implementing international treaty shall be Article E of the Fundamental Law, while in other cases the legal basis shall be Article Q of the Fundamental Law.
The other question to be answered concerned the conditions of validity necessary for the publication in case of an agreement under international law. In addressing this, the Constitutional Court first considered that the Unified Patent Court to be set up shall apply in its procedure not only the EU-law but also the national laws of the Member States. The Constitutional Court also recalled that the international agreements establishing judicial fora typically set up a forum with a special function of legal remedy. However, it is a peculiar feature of the international special court set up for specific case-groups that not only the appeal procedure but also the basic case shall be dealt with by the special court. Therefore the operation of such an international forum supplementing the national court structure would result in drawing the relevant legal disputes between private parties off the jurisdiction of the national courts, which would necessarily affect the Fundamental Law’s chapter dealing with the courts in Hungary. The Fundamental Law prescribes, by allowing no exceptions, that the national courts shall decide in all legal disputes of private law. The Constitutional Court concluded from the above that, according to the provisions of the Fundamental Law in force, the international agreement transferring to an international institution the jurisdiction of adjudicating a group of private law disputes may not be published.

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