14 February 2022
The petitioning Members of the National Assembly requested the Constitutional Court to find that Section 5 (2) of the Act, which entered into force on 1 January 2022, as amended by Act CXIX of 2021, was unconstitutional by non-conformity with the Fundamental Law and to annul this provision retroactively to its entry into force. Under the definition prior to the amendment, the conceptual element of the place of residence of a citizen was habitual residence. Accordingly, the citizen’s place of residence was the residential address of the dwelling in which the citizen lived. By contrast, the amendment removes the requirement of habitual residence, since, pursuant to the amended wording of the Act, the place of residence of a citizen is the residential address of the dwelling or accommodation which serves as the basis for the citizen’s official relations with the State and with natural and legal persons and organisations without legal personality, as well as for his rights and obligations linked to the place of residence.
The petitioning Members of the National Assembly consider that, as a result of the amendment, the register of residential addresses is no longer able to provide proof of actual presence of a person in the place of residence. Since that register forms the basis for the electoral roll, the requirement of a closer link with the place of residence, which is of decisive importance in the mixed electoral system for the general election of Members of the National Assembly and in the referendum, is no longer applicable. The contested provision therefore infringes the requirement of the rule of law laid down in Article B (1) of the Fundamental Law and restricts the right to vote and to hold a referendum without a legitimate aim.
In its decision, the panel of the Constitutional Court explained that the amendment to the concept of the permanent place of residence was necessary for legislative reasons, because the register of personal data and residential addresses of citizens, as established by the Central Statistical Office, did not reflect the reality in a significant number of cases, and the new definition of the concept of permanent place of residence chosen by the legislator seemed suitable to resolve the difference between the data content of the publicly authentic register and the actual factual situation.
Apart from the amendment of the concept of the permanent place of residence, the legislator did not change either the mixed electoral system or the rules on the right to vote in local and European Parliament elections and local referendums and in single-member constituencies, which are closely related to the permanent place of residence. Nor does the change in the concept of the permanent place of residence in itself affect the conditions for political participation. Apart from the right to participate in local and European Parliament elections and local referendums, the change in the concept of the permanent place of residence can only affect the place where the right to vote in a single-member constituency is exercised, that is, the single-member constituency in which a voter entitled to vote in a single-member constituency can vote.
In the light of the above considerations, the Constitutional Court dismissed the petition for a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of with retroactive effect to the date of its entry into force of the impugned provision.
The text of the decision is available on the website of the Constitutional Court at this link>>