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.

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.

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.

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.

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.

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.

According to Section 12 of the Rules of Procedure, there shall be a judicial vacation at the Constitutional Court from 21 December 2018 to 4 January 2019 (11+4 days).
According to Section 55 (4) of the Rules of Procedure, the period of the judicial vacation shall not be taken into account when counting the deadlines specified in the Rules of Procedure. At the same time, the judicial vacation shall have no effect on the deadlines laid down in the Act on the Constitutional Court, including the deadline of submitting a constitutional complaint.

The Constitutional Court pointed out in its recent decision: in a procedure related to the wrongful removal of a child, the court should, as far as possible, use all the tools of evidence offered by the parties in the interest of clearly verifying the interests of the minor. A procedure where the clarification of the child’s interests is rendered impossible does not comply with the requirement of fair trial enshrined in the Fundamental Law.

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.

The concrete case at the Constitutional Court was based on a constitutional complaint. The petitioner had a nasal septum operation in anaesthesia and after waking up he developed symptoms of aphasia (speech disorder) and limb paralysis on the right side of his body. The National Rehabilitation and Social Expert Institute established that the petitioner had a health damage of 80 percent due to cerebral haemorrhage, hypertonia, one-side paralysis and obesity, and it classified the petitioner into disablement category II. The petitioner brought an action against the medical institution where the operation had been made, requesting the payment of damages by the medical institution due to the failure of the clinics to perform expectable diligence. As a secondary claim for the case of the court establishing that the defendant clinics did indeed perform due diligence, the petitioner requested to establish that his right to proper information had been violated. As on the basis of the primary claim, the Budapest-Capital Regional Court had established the clinic’s liability for damages and the Budapest-Capital Regional Court of Appeal approved this judgement, neither of the fora had to decide about the secondary claim. Upon the defendant’s application for review, the Curia annulled the final judgement, changed the judgement of first instance and rejected the claim.

In the constitutional complaint the petitioner alleged, among others, the violation of the right to fair court procedure. According to the petitioner, the Curia rejected his claim without examining the merits of the secondary claim. The Constitutional Court underlined in its decision: the right to turn to court as a part of the right to a fair court proceedings means more than a simple right to start court proceedings – it also implies the right to have the legal debate adjudicated by the court on the merits of the case. The obligation to have the claim exhausted raises a requirement concerning the judicial decision that the courts should decide about all elements of the claim and the counterclaim in the holdings of the judgement as the result of the examination on the merits. The Curia rejected the petitioner’s claim with final force, but one of the elements of his claim has not been examined on the merits by any of the judicial fora. The Curia laid down in its judgement, in accordance with the rules of the old Act on civil proceedings in force at the time of the procedure, that it had no possibility in the review procedure to examine the merits of a secondary claim formulated as a contingency.  However, the Curia undoubtedly had the possibility to deliver a judgement in the review procedure that allows the lower courts to examine the merits of the secondary claim. Indeed, it follows from the right to turn to court, as a partial entitlement of the right to fair trial, that when the Curia changes the final judgement and rejects the claim in the framework of the review procedure, this decision should not result in a situation – notwithstanding an apparent accumulation of claims – where one of the elements of the contingent claims is not examined on the merits by any of the judicial fora.

Accordingly the Constitutional Court established that the judicial decision challenged by the constitutional complaint was contrary to the Fundamental Law, therefore the Court annulled it. Judge László Salamon attached a concurring opinion to the decision.

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.