Decision 2/2021 on the use of mother tongue
7 January 2021
Decision number: III/742/2019.
Subject of the case:
Judicial initiative aimed at establishing the incompatibility with the Fundamental Law and annulling Section 113 (2) of the Act CXXX of 2016 on the Code of Civil Procedure and Section 20 (3) of the Act CXXX of 2016 on the Code of General Administrative Procedure (use of mother tongue)
|The Constitutional Court, acting ex officio, found that it is a constitutional requirement arising from the fundamental right to use one’s own language in civil proceedings that all parties who must appear in person before the court and who are members of a nationality recognized in the Act on the Rights of Nationalities in Hungary shall be entitled under the same conditions to use the nationality language orally. In the underlying case the referring judge asked the Constitutional Court to declare a conflict with the Fundamental Law and to exclude the application in the pending lawsuit of specific provisions of the Act on the Civil Procedure (ACP) and the Act on the General Administrative Procedure (AGAP) relating to the use of one’s mother tongue. In the opinion of the referring judge, they violate the fundamental right of the nationalities living in Hungary to use their languages and violate the prohibition of discrimination. According to the challenged section of the ACP, unless otherwise provided by law, a binding act of the European Union or an international convention, submissions addressed to the courts shall be submitted in Hungarian language and the court shall also send its decision in Hungarian. Under the provisions of the Act on the Rights of Nationalities and the Fundamental Law, all nationalities listed in the annex to the Act on the Rights of Nationalities should be entitled to the right to use their mother tongue under the same conditions. However, this is not the case because, in connection with the European Charter for Regional or Minority Languages, Hungary has made commitments in respect of only a few languages in the field of civil justice, not including, for example, the Ukrainian and Ruthenian languages at issue in the main proceedings. The challenged provision of the AGAP allows the use of the nationality language by a person covered by the Act on the Rights of Nationalities, and at the same time it stipulates that on the request of the party the authority shall translate the decision – issued in the Hungarian language – made in the subject-matter of the application submitted in a nationality language into the language used in the application. In its decision, the Constitutional Court found that the referring judge had in fact submitted a motion to establish the existence of a conflict with the Fundamental Law caused by omission, which the petitioner was not entitled to do, therefore the Constitutional Court did not examine the merits of these elements of the motion, thus it did not annul the challenged provisions of the ACP and the AGAP, nor did it impose a ban on their application. However, in the course of the proceedings the Constitutional Court held that by formulating a constitutional requirement and at the same time saving the law in force, it has the possibility to remedy an arbitrary interpretation – leading to a result contrary to the fundamental right to use one’s own language as enshrined in the Fundamental Law – derivable from the wording of the challenged provisions. This arbitrary interpretation seems to find differences between the regulations applicable to the oral communication in civil proceedings by the members of certain nationalities. The Constitutional Court thus found that it is a constitutional requirement arising from the fundamental right to use one’s own language in civil proceedings that all parties who must appear in person before the court and who are members of a nationality recognized in the Act on the Rights of Nationalities in Hungary shall be entitled under the same conditions to use the nationality language orally. The Constitutional Court also ruled that if a party is a member of a nationality recognized in the Act on the Rights of Nationalities living in Hungary and wishes to use his or her nationality language orally during his or her personal appearance, he or she may do so without incurring any additional costs to him or her.|