THE CURIA’S DECISION ADOPTED IN AN ELECTION CASE IS CONTRARY TO THE FUNDAMENTAL LAW

14 May 2019

In the case reviewed by the Constitutional Court, the Curia condemned FIDESZ-KDNP because of its signature collecting activity held by the Curia to be contrary to the principle of exercising rights in good faith and in the proper manner.

Based on the video recording attached by Momentum Movement, the Curia verified that on 8 April 2019, at 18 hours 38 minutes the activists of FIDESZ-KDNP had collected signatures in the Kálvin Square underpass.  The desk bearing the logo of the party union had the inscription “For us Hungary is the first, even in Brussels! 26 May” and the signature sheets placed on the desk had the heading “I support the programme of Viktor Orbán, let’s stop immigration!” and the activists stated several times that they collect signatures for the European Parliament elections. The signature sheets were not the official candidate-proposing sheets, they were in fact sheets to collect signatures supporting the programme of Viktor Orbán, and the activists could not present any data processing information note. The Curia concluded in its decision that the collection of signatures expressing support for the candidate-setting organisations is not unlawful if the constituent is clearly aware of the purpose his signature is to serve and the purpose of using his data. If, however, the constituent is not aware of these circumstances due to the misleading conduct of the candidate-setting organisation, it shall result in an unlawful situation, therefore, the Curia condemned the candidate-setting organisations.

FIDESZ-KDNP turned to the Constitutional Court to challenge the decision, complaining about the fact that the Curia had made a decision without allowing them to make a statement, and the decision had not taken into account the freedom of expression the candidate-setting organisations are also entitled to, and it arbitrarily restricted the exercising of this right by arbitrarily interpreting the principle of exercising rights in good faith and in the proper manner.

The Constitutional Court stated in its decision that the Curia completely failed to assess the fundamental rights aspects of the petitioner’s conduct. It follows from the Constitutional Court’s earlier decisions that in the election campaign, but also independently from that, the communication between a political organisation and its supporters is protected by the freedom of expression, therefore, the decision of the Curia is contrary to the Fundamental Law due to the mere fact that it had not detected the fundamental rights aspects of the case. Furthermore, the Constitutional Court has already established with regard to the regulation of the elections that the interpretation of any prohibition under the Act on the election procedure shall be in line with the freedom of expression provided that it holds the statutory regulation to be a closed one, without adding anything to the Act, and indeed the Act does not have any rule prohibiting the candidate-setting organisations to collect signatures in the election campaign for any other purpose in addition to proposing candidates, and such a conclusion cannot be drawn by reasonable interpretation from any provision of the Act. The Curia, by neglecting a former decision of the Constitutional Court, arbitrarily held that the Act on elections contained a prohibition, which was not contained in the Act.

 

Moreover, the Constitutional Court also laid down as a constitutional requirement resulting from the fundamental right to a fair court trial that the adverse party should be given an opportunity to make a statement in the review case before the Curia. Indeed, in the case under review, the petitioner was not given an opportunity to make a statement on explaining its standpoint or to otherwise take part in the procedure that resulted in declaring the unlawfulness of its conduct. The Constitutional Court, therefore, stated that, on the basis of the right to fair trial, the principle of equal arms should be taken into account also in the course of the election procedure, and the affected parties’ opportunity to participate in the procedure that changes the election committee’s decision shall be unavoidable.

Justices Ágnes Czine, Ildikó Hörcherné Marosi, Imre Juhász, Béla Pokol, István Stumpf and Mária Szívós attached concurring reasoning to the decision.