The MP candidate's immunity is not a fundamental right, it is not against the Fundamental Law to regulate the suspension of this right6 April 2018
The petitioner was registered as an independent candidate at the parliamentary elections and accordingly he was entitled to immunity. However, on the basis of a pending criminal proceeding against him due to committing the criminal offence of budget fraud committed in a criminal organisation on commercial scale, causing a particularly considerable financial loss and for committing other crimes, the National Election Committee has suspended the petitioner’s immunity. As established in the Constitutional Court’s recent decision: the National Election Committee’s decision on suspending the immunity shall not qualify as a decision against which legal remedy has to be offered.
The petitioner filed at the Curia an application for review agains the National Election Committee’s decision on suspending his immunity. The Curia rejected the application for judicial review without examining it on the merits, arguing that there is no place for judicial review against the decision of the National Election Committee. The petitioner filed a constitutional complaint at the Constitutional Court. In the complaint he referred to being excluded from exercising his right to vote due to taking him to detention after the suspension of his immunity. This way, although he may take part in the campaign, but as a detained person he is prevented from physically contacting the voters. He holds this to be a violation of his passive right to vote, and if it is indeed verified that the Curia has no competence to review the decisions of the National Election Committee, his right to legal remedy has also been violated.
The Constitutional Court pointed out in its decision: while the right to vote is a fundamental civil right, the MP’s immunity is not a fundamental right but a guarantee linked to the undisturbed exercising of the office. With regard to candidates, immunity should be interpreted as one serving the purpose of the undisturbed expression of the voters’ will at the parliamentary elections, to secure the fairness of the elections. The legislator intended to make this protection more effective by allocating the adjudication of the immunity cases of candidates to the National Election Committee instead of the Parliament as an institution operating on the basis of the political balance of power preceding the elections. The Constitutional Court established that the applicable regulations provided appropriate guarantees for adopting the decision. The Curia’s decision presented these aspects. Accordingly, the petitioner’s passive right to vote has not been violated.
The decision also pointed out: in respect of candidate MPs, immunity is a guarantee of exercising the right to vote and of the undisturbed process of the elections, and it is not a question influencing the affected person’s own right. Therefore the decision on suspending immunity shall not be regarded as a decision where the lack of legal remedy as such would result in a situation conflicting with the Fundamental Law.
Based on the above arguments, the Constitutional Court established that the Curia’s ruling challenged with the petition was not in conflict with the Fundamental Law, therefore it has rejected the constitutional complaint without any dissenting opinions. Concurring opinions have been attached to the decision by judges dr. Ágnes Czine, dr. Ildikó Hörcherné dr. Marosi, dr. László Salamon, dr. Balázs Schanda, dr. István Stumpf, dr. Tamás Sulyok, dr. Péter Szalay and dr. András Varga Zs.