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.

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.

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.

Lack of provision for a name-changing process for lawfully settled non-Hungarian citizens violated the right to human dignity and the prohibition of discrimination.

Publishing a true report on a press conference about issues of public events should not render the press liable for denigration.

Requiring those taking part in a public employment programme to keep their living space tidy as a condition of participation constitutes an indirect violation of the principle of general equality and discrimination relating to the right to private life.

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.

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.

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.

The faces of police officers while on active duty need not be covered in the newspapers, news sites, and in the media in general, as their role as agents of public power outweighs their right to privacy.

The Constitutional Court may examine the merits of a parliamentary resolution ordering a referendum if, between the authentication of the question and the ordering of the referendum, circumstances had changed in a way that might significantly affect the decision. It cannot examine the content of the referendum question itself.

The constitutional right to freedom of assembly is not violated by a police ban on staging demonstrations in front of the Prime Minister’s house and the Supreme Court headquarters, but the existence of contradictory laws on the subject is unconstitutional.

The Hungarian National Bank exercises public functions and exclusively manages public funds. Therefore, it is accountable to the public in the spirit of transparency and the virtue of public life. The Hungarian National Bank may set up companies or foundations only in harmony with its tasks and primary objectives.

Changes made to legislation on postal services affecting the scope of public disclosure at the state-owned Hungarian Post are compliant with the Constitution.

The legislator is not entitled to put an undue, unpredictable burden on the investment companies financing the compensation of the Investor Protection Fund.

Women have the right to preferential treatment, especially in the field of the right to a pension, and this right follows from the Fundamental Law.

The power of agricultural-land committees to prevent land sale agreements is not contrary to the right to property. However, the agricultural-land committees should provide reasoning in their decisions.

The Act on Managing State Land, which would have transferred management rights for state-owned land to the National Land Management Fund, is unconstitutional The transfer of competences would have affected regulations reserved to cardinal Acts, meaning that a two-third majority in parliament would have been necessary to approve these parts of the Act. The transfer of property management to the National Land Management Fund would reduce the level of environmental protection, as the Fund prioritises mainly economic aspects of managing the land as opposed to ensuring they remain protected nature reserves.

Article VI.2 of the Fundamental Law requires a new legal framework, which will make the operations of the state bureaucracy more transparent by guaranteeing a proceeding in which the court can review the merits of an administrative decision declaring certain public information or personnel information, that should be available for public inspection, as classified.

Legislation on retail loan contracts that allows banks to unilaterally raise interests on foreign currency-denominated loans, laid the groundwork for requiring lenders to compensate retail borrowers for making unilateral changes to contracts and for using exchange rate margins when calculating repayments for foreign currency-denominated loans.

The publication of photographs of police at work in the press without the pixelation of the policemen’s faces is in line with the Fundamental Law.

The Settlement Act, which describes the consequences of the application of the unfair clauses amending bank FX loan agreements unilaterally, is in harmony with the Fundamental Law.

The provision on the size of personal living space in prison cells where more detainees are accommodated together, conflicts with international treaties and is unconstitutional.

The lawmaker is allowed to create an election system whereby the voters directly elect one candidate for two positions if based on appropriate reasons. However, provisions that give extra compensation to losing candidates on the basis of a special quota related to the size of the population of each district is contrary to the equality of the right to vote.

The Criminal Code provision that imposes the stricter conviction on three-time offenders found guilty of violent crimes against persons at different times is not in line with the rule of legal certainty and the Fundamental Law.

Internet content providers are responsible for abusive comments by third parties posted on their websites, regardless of whether they moderated the comments, or actively removed the harmful content on request.

The provisions of the Act on the Elections of Parliament Members concerning the winner compensation do not violate the constitutional requirements of the equality of the right to vote.

Certain amendments to the legislation on national security which allowed continuous national security control and covert information-gathering for thirty days twice a year on somebody under national security control exceeded the extent of the necessary and proportional restrictions of the right to respect for private life in such circumstances and were unconstitutional.

A legal regulation may, in exceptional cases, where there have been significant and unanticipated changes to the circumstances that surrounded the conclusion of the contracts amend the content of contracts that had been concluded before it came into force.

The provision of the new Civil Code which allows wider criticism of public figures only if it is justified by «acknowledgeable public interest» violates the freedom of speech and press.

A regulation, previously in force, which had allowed the transfer of judicial cases, was contrary to the right to a fair trial under both the Fundamental Law and the European Convention on Human Rights; in particular, the principle of the lawful judge and the right to an impartial court. The regulation failed to fully define instances in which case transfer was permissible, authorised the President of the National Office for the Judiciary to appoint the acting court at his or her discretion, and did not provide any remedy for the concerned person against the decision of the President of the National Office for the Judiciary concerning the case transfer.

An Act which invalidates convictions for vandalism, use of force and hooliganism related to the 2006 riots based solely on police reports is not unconstitutional.

The right to access and disseminate data of public interest is violated when access is refused on the basis that the public data requested was to form the basis of a later decision and the examination of its content was not taken into consideration.

Parts of an amended Act on the rules of national security surveillance which introduced continuous surveillance were likely to be in breach of the Fundamental Law and were suspended on a temporary basis due to insufficient time for thorough constitutional review prior to their scheduled entry into force.

In terms of the Fourth Amendment to the Fundamental Law, the Court, as the principal organ for the protection of the Fundamental Law, will continue to interpret and apply the Fundamental Law as a coherent system and will consider and measure all provisions of relevance to the decision in a given matter.

Allowing Parliament to decide on the status of churches could result in political decisions. Decisions in such cases should be taken by independent courts. The State must ensure that religious communities receive special status as «religion» based upon objective and reasonable criteria, and in compliance with the right to freedom of religion and the requirement of fair procedure. Legal remedy against such decisions must be guaranteed.

A provision of the Criminal Code prohibiting the use of symbols of totalitarian regimes violates the requirement of legal certainty, and in this context, the freedom of expression.

The Constitutional Court for the first time exercised its competence to overturn a court decision which was found contrary to Fundamental Law. The ordinary court had failed to review the merits of a decision declaring lack of competence on the part of the police because of an agreement on the use of public area with the Municipality of Budapest.

Mandatory «early voter registration» restricts the right to vote without constitutional justification. Limitations on the publication of political advertisements and public opinion polls violate freedom of expression.

Transitional Provisions adopted under the Fundamental Law are not valid where they do not comply with the requirements for the adoption of such provisions under the Fundamental Law. Parliament, acting as a constitution-amending power, must comply with the constitutional requirements of law-making. The Fundamental Law may only be amended directly, through the appropriate constitutional procedure. Indirect amendment of the Fundamental Law, through the addition of general normative rules contained within transitional provisions, which purport to become an integral part of the constitutional text, is not permitted.

Provisions on legal aid should be available also for proceedings before the Constitutional Court. There should be no exclusion of persons with reduced financial resources from access to legal aid financed from the state budget, necessary for the effective enforcement of their rights in the course of constitutional complaint proceedings.

The Act on Protection of Families had an excessively restrictive interpretation of the notion of family when it stated that the family is defined as marriage between a man and a woman plus their direct descendants or adopted children. In addition, excluding registered partners from inheritance was in breach of the Civil Code to an extent that could not have been resolved through interpretation.

See also Decision 31/2012.

The basic requirements of legal certainty and equal opportunity shall prevail during the transformation of the rehabilitation system.

Legislative provisions which rendered permanent living in the public space a regulatory offence, which accorded unduly wide legislative powers to local governments to impose fines or even detention on homeless persons, and to define punishable anti-social behaviour, and which empowered local governments to confiscate the property of homeless people, violate the rights and human dignity of the affected persons, as well as the prohibition of discrimination and the principle of legal certainty.

New provisions on the compulsory retirement age of judges cannot have retroactive effect.

The terms of contracts for students receiving state scholarships contained in a governmental decree should have been incorporated into an Act.

A provision on inheritance in the Act on the Protection of Families was not entered into force because it did not conform to the Civil Code.

See also Decision 43/2012

The authorisation for expressing consent to be bound by every international treaty that results in further sovereignty-transfer to the European Union requires the votes of two-thirds of all Members of Parliament.

Due to express limits, provided by law, on the scope of the Constitutional Court’s jurisdiction to conduct abstract review of constitutional norms, the Court rejected the petition of the Government requesting abstract interpretation of two free press provisions of the Fundamental Law.

Amendments made to the Criminal Procedure Code introduced a rule that certain cases are heard at the Court where the prosecutor presses charges and the manner in which witness data is handled limits the freedom of information and the introduction of a 120-hour detention rule, resulting in the defendant having no access to an attorney for the first 48 hours have raised concern on whether they respected the Constitution and international treaty obligations.

It is against the principle of free press to limit the protection of journalists’sources to stories serving the public interest. Editors must, moreover, not be obliged to supply data in the absence of pending proceedings. The institution of the ‘Media Commissioner’constitutes an unnecessary restriction on the freedom of press.

Where legislators have rewritten key parts of legislation which is about to be submitted to the final parliamentary vote, this leaves no time for proper parliamentary debate and is therefore unconstitutional.

On the basis of its competence to protect human dignity, the Constitutional Court reviewed the constitutionality of a tax provision. The Court argued that the retroactive effect of the 98 per cent tax was an affront to human dignity.

Civil servants (those working for state institutions and local government authorities) cannot be dismissed from office without a reason being provided.

A law that allowed employers in the public administration to dismiss government officials without providing a reason for the dismissal was unconstitutional.

The formation of constituencies is closely linked to the realisation of the right to vote. Therefore statutory regulation is necessary to demarcate the specific voting districts and define the authoritative standpoints relating to changes to constituency boundaries.

An act providing for the introduction of a special retroactive 98% tax, if the income was given contrary to good morals by organisations managing state property or by state owned or governed organisations, was considered to be a “confiscatory” tax.

The Law on the Introduction and Operation of the Single Payment Scheme to Agriculture has a disadvantageous effect on agricultural growers who entered the market after 2006 or acquired new cultivation areas.

The reforms brought about by the Lisbon Treaty are of paramount importance, but do not change the fact that Hungary retains its independence, and its status with respect to the rule of law.

The first two books of the new Civil Code did not come into force on 1 May 2010, after the Constitutional Court declared the Act on the entry into force unconstitutional. The reason for this was that the sixty-day deadline by which the authorities and all interested parties should have examined the new provisions that were to take effect in the first stage was “excessively tight”. Moreover, the Court held that the new Civil Code’s “two-stage entry into force” would have required the relevant authorities to accommodate a multitude of legislative changes twice within a short period of time. This would have run counter to the principle of legal certainty.

Granting legislative powers to the President of the Hungarian Financial Supervisory Authority would have required constitutional amendment.

The Registered Partnership Act, under which the institution of registered partnership is only available to same sex couples, is not contrary to the Constitution.

The freedom of expression guaranteed by the Constitution does not exclude limitations on business advertising activity. Tobacco corporations are not citizens; they do not have ideas of their own and are not therefore given the fundamental right to free speech in the same way as real people. Consequently, the state can impose limits on tobacco advertising.

A wealth tax was to provide the tax authority with a nearly unlimited right of appraisal and exemptions were to be solely based on the value of property, not taking into account the number of its owners.

The written form of the oath taken by public servants must not contain data regarding their faith or beliefs; otherwise it would contravene the constitutional guarantees of protection of personal data and freedom of conscience.

The Registered Partnership Act, which accords recognition to unmarried and same-sex partnerships, is unconstitutional, as it downgrades marriage. However, a partnership scheme for homosexual couples only would be constitutional.

Only natural persons are entitled to protection of their dignity by legislation. Such protection does not extend to broader communities or groups. However, the Court did not preclude the possibility of legal protection for the dignity of the individual, in view of their relationship with a particular community.

The right of assembly is enshrined within the Hungarian Constitution. It includes the right to hold assemblies organised in advance, and peaceful demonstrations organised for valid reasons at short notice. It also includes the right to hold spontaneous gatherings.

Some provisions of the Act transposing into Hungarian law the EU treaty on the Surrender Procedure between EU member states, Iceland and Norway contravene the prohibition of double jeopardy. The Treaty cannot be ratified until either Parliament eliminates the unconstitutionality or Article 57.4 of the Constitution comes into force.