The Hungarian legislature in July 1993 passed a law on the lease and the alienation of living accommodation (flats) and other premises. These premises became the property of the local governments by force of law (ex lege) in 1990, in the process of the transformation of the former state property. The most questioned part of the new law was the entire chapter on the option to purchase the flats and other premises by the tenants. Under the law local governments are obliged to sell the flats to the tenants at a reduced price specified by the law.
This option to purchase is valid for five years. The option is obviously a serious restriction on the right to property. The Court declared in several decisions that the right to property is a fundamental right, but it can be restricted for necessary public goals. These restrictions must meet a strict constitutional scrutiny. The five year term open to the tenants for the option to purchase the flats is disproportionately long, creating a deeply uncertain situation for the local governments. The other source of unconstitutionality is the lack of guarantee for maintaining the value of the wealth given to the local governments. If they are obliged to sell the flats and other premises for a special reduced price, the value of their property will be significantly diminished. Local governments should be compensated for the losses suffered because of the option.In the case of other premises that are not used as living accommodation (but as shops, e.g.) there is no social reason to put burdens on the property of the local governments.
Therefore the Court declared the rules related to the option to purchase flats and other premises unconstitutional.
Under Hungarian civil procedural law, courts could reject a complaint without issuing a summons if the claim was evidently unfounded or impossible. This general clause had been introduced to the Civil Procedural Code in 1952, and it was abolished in 1957. Legislature re-established the clause in 1972 in order to speed up procedures. According to the Constitutional Court, this provision violated the citizens’ rights to a fair trial by an independent court as provided by the Constitution. The Court emphasised that citizens had a right to have their claim judged by a court, and access to the courts could not be rejected by a simple reference to practical needs. It annulled the related provision of the Civil Procedural Code.
The Hungarian Parliament in February 1993 passed a law on «Procedures Concerning Certain Crimes Committed During the 1956 Revolution». This law tried to make possible some form of «historical justice» in order to prosecute Communist offenders. Three previous attempts could not pass the scrutiny of judicial review. This time again the President of the Republic did not promulgate the act, but turned to the Constitutional Court for «preventive norm control».
The President asked the Court to review the law for its conformity with both the Constitution and two international agreements – Article 7.1 ECHR and Article 15 of the International Covenant on Civil and Political Rights. As for the second claim, the Court had to interpret its jurisdiction to consider questions of international law when ruling on the constitutionality of a not yet promulgated law. The Court claimed the right to judge the law’s conformity with international law, because the Court is required under Article 7.1 of the Constitution to ensure harmony between domestic law and obligations assumed under international law when evaluating a law’s constitutionality.
As to the merits of the case, the Court restated its former stand-point that the retroactive amendment of the statute of limitations in criminal cases is unconstitutional. The Court has found two exceptions to this principle: a) if Hungarian law in force at the time when the crime was committed provided no statute of limitations, b) if the crime is a crime against humanity or a war crime, and the non-application of a statute of limitations is an obligation undertaken by Hungary in an international agreement.
The Court declared the first article of the law under review unconstitutional, because it referred exclusively to crimes defined by domestic law, and extended the statute of limitation retroactively for crimes committed during the revolution of 1956.
The constitutionality of the second article, referring to war crimes and crimes against humanity as defined by the Geneva Conventions of 1949 for the Protection of War Victims, was upheld. The Court referred also to the New York Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968, signed and ratified by Hungary. The New York Convention declares that «no statutory limitation shall apply to several categories of war crimes and crimes against humanity irrespective of the date of their commission». By signing this convention, Hungary undertook an obligation not to apply its own statute of limitations in cases involving war crimes and crimes against humanity.
A bill regulating the distribution of radio and television broadcasting frequencies was sent to the Constitutional Court by the President of the Republic for preliminary review. The Court upheld most of the bill’s provisions. It declared, however, that the Government had not fulfilled its duty to regulate the rules for the distribution of licences for local radio and TV studios.
Parliament enacted a bill in February 1993 amending the Criminal Procedure Act of 1973 making it obligatory for public prosecutors to level accusations in certain cases even if they had become statute-barred. The President of the Republic did not sign the bill but turned to the Constitutional Court for prior control of constitutionality. The Court turned down the bill by the same arguments that are set forth in decision no. 11 of March 5, 1992. The bill violates the principle of the rule of law, legality and legal certainty.
After the Constitutional Court turned down in March 1992 a bill that aimed to lift the statute of limitations for political crimes, the Parliament voted an authoritative resolution on the interpretation of the statute of limitations. The scope of the resolution was to exempt the period between 1944 and 1989 from the term of limitation. The Court declared the regulation unconstitutional both for formal and substantive reasons. An authoritative resolution of Parliament does not meet the requirements set for a legislative act. It cannot regulate questions concerned with the basic rights of citizens, and violates the principles of legality and legal certainty. Substantively the resolution was found to be unconstitutional too because it is ex post facto legislation, making retroactive criminal prosecution possible.
Under Hungarian law, the Minister of Justice has several powers in appointing the presidents of the courts at different levels. The amendment to the Judiciary Act in 1991 introduced new self-governing institutions (judicial councils), but did not abrogate the Minister’s powers. Therefore claimants challenged the constitutionality of the Act. The Constitutional Court upheld the validity of the law, but defined the constitutional requirements of the appointments. The appointment of judges by another branch (e.g. the executive) must be counterbalanced by the judiciary or by another branch. In the case of participation by the judiciary, their opinion should substantially determine the appointment.
The Court declared unconstitutional and abolished Government and ministerial decrees issued in 1984 regulating the distribution of office spaces and other premises. This system was leftover from the socialist economy of shortage characterised by aggressive State intervention into property relations. The Court protects the right to property as a fundamental right.D
The laws regulating the police service are published in Hungary as a supplement to a ministerial decree. The service rules require policemen to request permission from the commander before marriage. The Court declared that the right to marriage is protected by the Constitution as a part of the general right to personality. The protection of marriage provided by the Constitution comprises the freedom of marriage too. This right can be restricted, especially under the special conditions of military service, but only by the legislature. The supplement of a ministerial decree is not a constitutional way to limit a basic right, therefore the Court abolished the challenged provisions.
The Parliament decided to increase the amount of old-age pensions and other allowances, but fixed the maximum of the increase both in percent and in nominal sum. The petitioners claimed that this violated their right to social assistance provided by the Constitution. The Constitutional Court’s ruling pointed out that the social insurance – in part inherited from socialism – still has a mixed nature: partly it is an insurance, partly a social benefit. No one has a constitutional right to the protection of the same living standard.
The Constitutional Court had previously declared a Government decree on the control over public radio and television to be unconstitutional. The Court set a deadline for the legislature to enact a law on mass media. The deadline expired without success. Now the Court ruled that the unconstitutional decree will be abrogated only on the very day when the newly enacted law on radio and television enters into force.
The ruling concerns Jewish property (jewels and gold) confiscated under Nazi rule. International agreements (namely the Paris peace treaties) oblige Hungary to give «adequate compensation» to injured Jewish citizens. The Court ruled that the partial compensation offered to all injured people fulfils this requirement. But the Court found an unconstitutionality in that the legislation failed to provide for the compensation of those who died without successor. The compensation sum in such cases should be attributed to a special fund.
The constant jurisprudence of the Court concerning compensation for expropriations during the Communist regime was summed up for the fifth time in this decision. It summarised the theoretical arguments justifying the partial character of the compensation (there is no reprivatisation, the injured persons receive bonds as compensation, etc.). The ruling upheld the constitutionality of the Compensation Law with the exception of one provision that discriminated in favour of a group of former land-owners, making it possible for them to get five times more compensation than other former owners.
The most important holidays of the Christian religions nowadays have a secularised and general social character. They are special days not because of their religious content but because of economic considerations and because they comply with the expectations of society.
The requirement under the Freedom of Conscience, Freedom of Religion and Churches Act of at least 100 members to found a church is not unconstitutional because the distinction has no influence on the most important functions of the churches, such as worship, education and social charity. Moreover, the state cannot interfere with the affairs of religious communities, even if they are not established as church.
The state must remain neutral in religious matters. Schools operated by the state must not be committed to any denomination. Where the state gives back school buildings to the church as part of the process of restitution, it has to make it possible for children to attend non-religious schools. This conclusion cannot mean that a disproportionate burden is placed on those who wish to attend such non-denominational schools.
Even if in some cases the Constitution requires a two-thirds majority vote for the enactment of a legislative act on a fundamental right, the same requirement does not apply in respect of all laws touching upon that specific right.
The Court declared that representation is the primary form of the exercise of sovereignty. The Parliament cannot be dissolved by popular referendum (there had been a popular initiative to hold a referendum on the possible dissolution of the existing Parliament). The Constitution defines the circumstances in which Parliament can be dissolved and a popular referendum is not mentioned among them. The result of a popular referendum cannot result in an implied amendment of the Constitution.