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2023. April 6.

Decision 3161/2023 (IV. 6.) AB on establishing the violation of the Fundamental Law

Decision number: III/02831/2022
Subject of the case:

Judicial initiative aimed at establishing a conflict with the Fundamental Law and the annulling section the second sentence of 34 (2) of the Act LIII of 1994 on the Enforcement of Court Decisions (advance of costs in enforcement procedure)

The Constitutional Court declared the second sentence of section 34 (2) of the Act LIII of 1994 on Judicial Enforcement (Enforcement Act) in force until 1 December 2022 to be contrary to the Fundamental Law, and ordered the prohibition of the application of this provision in the case pending before the Pest Central District Court and the Budapest-Capital Regional Court. In the case underlying the procedure, during the enforcement proceedings, the bailiff seized the real property owned by the debtor. The debtor lodged an objection to enforcement, disagreeing with the value fixed in the bailiff’s notice of valuation, and an application for legal aid. The court of second instance initiated proceedings before the Constitutional Court because, in its view, the contested provision discriminates between the beneficiaries, according to their financial situation, who intend to take advantage of the legal remedies provided for by the Enforcement Act against the value estimated by the bailiff in enforcement proceedings, by excluding the possibility of requesting the mitigation of costs. According to the petitioning judge, the contested provision thus leads to a violation of equality before the law, the guaranteeing of fundamental rights for all without discrimination, and of the right to legal remedy. The Constitutional Court found in its decision that the law-maker designed the system of legal aid with a view to opening up access to justice and various forms of legal redress for those who are otherwise in a financially more difficult situation. The purpose of legal aid as an instrument of the law promoting the realisation of equal opportunities is to ensure that an unfavourable financial situation does not become an obstacle to the enforcement of rights and that those in a socially disadvantaged situation are not prevented from pursuing their claims through the courts. According to the Constitutional Court, the contested provision does not seem to exclude the possibility for the parties to lodge an enforcement objection, but without the advance payment of costs or proof of payment into an escrow account, the objection is rejected without any examination of the merits, which is essentially a complete obstacle to a real and effective remedy. In the Constitutional Court’s view, the necessity of such an exclusion of the right to legal aid and the prenotation of costs in the present case cannot be justified under Article I (3) of the Fundamental Law, on the contrary, it is an obstacle to the exercise of the right to legal remedy. In view of the above, the Constitutional Court held that the second sentence of section 34 (2) of the Enforcement Act in force between 1 January 2018 and 1 December 2022, was contrary to the Fundamental Law.