recent translations summaries

2022. January 13.

Decision 3002/2022 (I. 13.) AB

Decision number: IV/4723/2021.
Subject of the case:

Constitutional complaint against the ruling No. 104.Kpk.750.204/2021/5 of the Budapest-Capital Regional Court (nationality election case)

The Constitutional Court declared the contested ruling of the Budapest-Capital Regional Court and the contested decisions of the General Assembly of the National Roma Self-Government (ORÖ) to be contrary to the Fundamental Law and annulled them. The petitioner is a member of the General Assembly of the ORÖ, a representative of the nationality self-government, and the applicant of the non-contentious proceedings that preceded the constitutional complaint. In his petition, he submitted a request for review to the Budapest-Capital Regional Court, due to the violations of law he had experienced at the General Assembly of the ORÖ held on 9 November 2021, against the decisions of the ORÖ adopted at the General Assembly in question on the establishment of the national election list of nationality, the number of candidates, as well as the persons and the order of candidates. The Regional Court upheld the revised decisions. In the challenged ruling, the court justified the rejection of the petitioner’s application partly on the basis of the fact that the petitioner failed to substantiate with evidence the allegations concerning the violation of the internal rules of procedure for setting up the nationality election list, thus the violation of the secrecy of the voting and the lack of influence on the decision. In this connection, the petitioner claimed that, in view of the closed session ordered under the special rules of the procedure for setting up the nationality election list, the interested parties have no real opportunity to prove the unlawfulness of the events that took place there, while the court in charge of the case could have examined ex officio the truth behind the allegations. According to the petitioner, the court failed to properly conduct the evidentiary procedure, which violated the petitioner’s right to a fair trial. In its decision, the Constitutional Court found that the fact that the General Assembly of the ORÖ had substantially amended the annex to the Rules of Organisation and Operation, which directly affected the election procedure, and then immediately applied it (without providing a preparation period), was a circumstance that substantially affected the voting and thus the nomination of candidates, making it essentially impossible to adapt to the amended rules. Neither the members of the ORÖ present nor the members not present but with active voting rights had the opportunity to participate directly in the vote on the basis of their position formed in the context of the amendment. In addition, voters belonging to the national Roma community were not given the opportunity to express their views on the amendment by informing their representatives of their position on the nomination of candidates, who could then vote on the order of candidates based on their own convictions. The Constitutional Court explained that this violated the requirement of legal certainty to such an extent that the decisions of the General Assembly ordering the establishment of the list and declaring the act of voting, as well as the court decision reviewing their legality, were therefore also contrary to the Fundamental Law, and therefore annulled them. In the context of the case, the Constitutional Court therefore established that in electoral matters of national significance affecting fundamental rights, a sufficient period of time must elapse between the substantive amendment of the Rules of Organisation and Operation of the self-government affecting the electoral procedure and the vote held on the basis of the amended rules, which satisfies the requirement under the Fundamental Law for a sufficient preparation time in such a way that the representatives of the self-government can prepare for it.