The Constitutional Court established that Section 77 para. (2) of Act LXXXIII of 1997 on the Benefits of Compulsory Social Security was unconstitutional and, therefore, annulled it. Section 77 para. (2) of Act LXXXIII of 1997 on the Benefits of Compulsory Social Security shall not be applicable in the cases No. 11.K.27.109/2018 before the Szombathely Administrative and Labour Court and No. 2.K.27.519/2018 before the Debrecen Administrative and Labour Court as well as in any other case pending. In the case underlying the judicial initiative the plaintiff had submitted to the Price Subsidy Department of the National Health Insurance Fund an application for support based on equity concerning the price of a medicine not available under social security support, and the plaintiff’s application was rejected. The plaintiff brought an action against the defendant by arguing that it was the only chance for him to stay alive. The judge initiating the judicial initiative referred, among others, to the following: the right to legal remedy would require that a possibility to turn to another organ or to a higher forum of the same organ should be offered for the purpose of reviewing all decisions that substantially influence the right or the lawful interest of the affected person. As argued by the petitioning judge, the challenged provision of the law “provided a rather narrow” scope of right to appeal, indeed, in the case of persons who do not have the financial means to buy the medicine – unavailable under social security support –indispensable for their treatment. The Constitutional Court found the judicial initiative to be well-founded. The peculiar character of the administrative decisions based on exercising equity may justify in such cases a regulation that excludes the possibility of the judicial review of the administrative decision, however, it should not necessary mean the exclusion of the possibility of a substantial review. In the present case, a formalized legal remedy cannot be justified with this peculiar character due to the real risk of breaches of the law, taking into account in particular the exhaustive listing of the conditions of receiving support to the price of medicine based on equity, and also taking into account the need for the complex examination of eventually complicated questions of medical and economic nature. On the basis of the foregoing, the Constitutional Court established that the challenged regulation unnecessarily restricted the right to legal remedy and the right to a fair procedure at court.
The concrete case at the Constitutional Court was based on a constitutional complaint. The petitioner had a nasal septum operation in anaesthesia and after waking up he developed symptoms of aphasia (speech disorder) and limb paralysis on the right side of his body. The National Rehabilitation and Social Expert Institute established that the petitioner had a health damage of 80 percent due to cerebral haemorrhage, hypertonia, one-side paralysis and obesity, and it classified the petitioner into disablement category II. The petitioner brought an action against the medical institution where the operation had been made, requesting the payment of damages by the medical institution due to the failure of the clinics to perform expectable diligence. As a secondary claim for the case of the court establishing that the defendant clinics did indeed perform due diligence, the petitioner requested to establish that his right to proper information had been violated. As on the basis of the primary claim, the Budapest-Capital Regional Court had established the clinic’s liability for damages and the Budapest-Capital Regional Court of Appeal approved this judgement, neither of the fora had to decide about the secondary claim. Upon the defendant’s application for review, the Curia annulled the final judgement, changed the judgement of first instance and rejected the claim.
In the constitutional complaint the petitioner alleged, among others, the violation of the right to fair court procedure. According to the petitioner, the Curia rejected his claim without examining the merits of the secondary claim. The Constitutional Court underlined in its decision: the right to turn to court as a part of the right to a fair court proceedings means more than a simple right to start court proceedings – it also implies the right to have the legal debate adjudicated by the court on the merits of the case. The obligation to have the claim exhausted raises a requirement concerning the judicial decision that the courts should decide about all elements of the claim and the counterclaim in the holdings of the judgement as the result of the examination on the merits. The Curia rejected the petitioner’s claim with final force, but one of the elements of his claim has not been examined on the merits by any of the judicial fora. The Curia laid down in its judgement, in accordance with the rules of the old Act on civil proceedings in force at the time of the procedure, that it had no possibility in the review procedure to examine the merits of a secondary claim formulated as a contingency. However, the Curia undoubtedly had the possibility to deliver a judgement in the review procedure that allows the lower courts to examine the merits of the secondary claim. Indeed, it follows from the right to turn to court, as a partial entitlement of the right to fair trial, that when the Curia changes the final judgement and rejects the claim in the framework of the review procedure, this decision should not result in a situation – notwithstanding an apparent accumulation of claims – where one of the lements of the contingent claims is not examined on the merits by any of the judicial fora.
Accordingly the Constitutional Court established that the judicial decision challenged by the constitutional complaint was contrary to the Fundamental Law, therefore the Court annulled it. Judge László Salamon attached a concurring opinion to the decision.
The lack of a regulation allowing for the appraisal of the actual condition of a person with a reduced ability to work violates Hungary’s international obligations.
The Constitutional Court adopted a decision in the case of the noise protection of race courses with international licence. Due to the violation of the right to a healthy environment, the Court annulled with future effect certain provisions of the decree on noise protection. Of course the affected race courses may also be operated in the future in the framework of the currently applicable legal regulations, as the decision of the Constitutional Court does not result in losing their functionality.
The procedure of the Constitutional Court was based on a judicial initiative Due to the excessive noise pollution the plaintiffs of the basic case had started an action against a company in exclusive State ownership that operates a race course with international licence in Mogyoród. The court’s initiative was aimed – among others – to the examination of the constitutionality of the noise protection decree amended in the period under litigation. The amendment resulted in significantly increasing the noise pollution breakpoint and according to the initiative this would result in the decrease of the achieved level of protection and violates the right to a healthy environment. Accordingly, the Constitutional Court, acting in its power of norm control, examined the constitutionality of the noise protection regulations.
The right to a healthy environment, enshrined in the Fundamental Law, has a substantial element, namely that a specific level of protecting the environment, once achieved, should not be decreased. The prohibition of stepping back is not automatic, it shall be enforced in accordance with its function during the protection of fundamental rights. The Constitutional Court also established on the basis of the complex examination that noise emission is covered by the scope of the right to a healthy environment and the challenged regulation – despite of the more severe provisions applicable to the noise emitting party – as a whole resulted in stepping back from the previous level of protection as it fails to apply an appropriate counterweight regarding the possibility of a significantly higher noise level over the impact area. In particular, it fails to provide a counterweight regarding the increased levels applicable to the days subject to an exemption, although these levels are well above the levels according to the general rules and they may be used during as much as 40 days without interruption.
The Constitutional Court pointed out that the operation of the race course with an international licence has beneficial effects on tourism, on the motorsport, on the domestic and the international image of Hungary and it also has positive effects on the national economy, such as the increase of tax revenues. All these factors support the position that it is of public interest to operate in Hungary a race course with an international licence. However, no public interest may justify stepping back, namely a situation where the population of the neighbouring settlements should tolerate – without protective measures – a noise level higher than in the past.
The Constitutional Court also assessed whether decreasing the level of protection could be justified by the fundamental right to enterprise. The operation of the race course qualifies as an enterprise and pursuing this activity results in the noise pollution of the environment. The Constitutional Court established that although a step-back might be necessary in this context, as the races usually come along with high noise emission, but this would not be proportionate. The lawmaker has not selected one of the most moderate means suitable for achieving the purpose, but it institutionalized a solution disproportionately expanding over these. The functional operation of the race course with an international licence does not require to have a noise emission higher by 5 dB on each day of the year, or to have, in the exemption system, a significantly higher noise emission (65 and 70 dB) even during a continuous period of as much as 40 days. Based on the above, the Constitutional Court annulled as of 31 December 2018 the special rules applicable to the noise originating from race courses with international licence. Judge dr. Imre Juhász attached a dissenting opinion to the decision and Judges dr. Mária Szívós, dr. Egon Dienes-Oehm and dr. András Varga Zs. joined to it.
With regard to the amendment of the Act on water management, the President of the Republic submitted to the Constitutional Court an initiative on preliminary norm control. According to him, the provision allowing the construction of water projects without permission and reporting until the depth of 80 meters is in conflict with the Fundamental Law. As recalled by the President of the Republic in his petition, the prohibition of stepping back from the achieved level of protection is an obligation of the State, laid down in the Fundamental Law, for the purpose of protecting the environment. Earlier the deputy commissioner for the interests of future generations and eleven professional organisations also argued against the challenged provision. Before adopting its decision, the Constitutional Court had requested the minister for the interior, the minister of justice, the deputy commissioner for the interests of future generations and the Hungarian Academy of Sciences. The Court underlined in the decision: in every case when the regulations on protecting the environment are modified, the precautionary principle and the principle of prevention should be taken into account as the failure to protect the nature and the environment may induce irreversible processes. Sub-surface water reserves are finite i terms of their quantity and quality, and they are renewable only to a limited extent. In Hungary, the construction of driven wells has been subject to a permission since 1960. This offers a possibility for the authority to track the volume of water use that can be authorised without endangering the water reserves. Sub-surface waters may only be used to the extent not resulting in the excessive use of the reserves. Among others, also Hungary’s revised watershed management plan for the year 2015 established that more than half of the sub-surface water bases are vulnerable. The authorities may specify by way of the permissions to be issued in advance the technologies to be applied and the depths of the new wells to be established in a safe manner. Uncontrollable water abstractions without State control may ultimately lead to damaging the ecosystems. The Constitutional Court noted that in addition to deteriorating the quality of waters, putting the Act into force may also imply risks concerning the public health.
As recalled by the Constitutional Court, only 4% of the surface water reserve of Hungary is generated within the borders of the country, at the same time, Hungary is located in an area significantly subject to the consequences of climate change, therefore the responsible management of sub-surface water reserves is of primary importance. According to the decision, the regulation that plans to use posterior control by the authority instead of the process of issuing preliminary permissions in the interest of preserving sub-surface waters is a step-back compared to the level of protection already achieved, therefore it is contrary to the Fundamental Law. The risk of the deterioration of quality caused by the wells constructed without permission, thus by neglecting professional and quality requirements, may directly influence the living conditions of the present generations as well. The permissions to be obtained in advance not only provide the authorities with information on the volume of waters, but they may also motivate economizing water, for example due to the obligation of paying a water reserve contribution. Justices dr. Ágnes Czine, dr. Balázs Schanda and dr. István Stumpf attached concurring reasonings, while Justices dr. Egon Dienes-Oehm, dr. Imre Juhász, dr. Béla Pokol, dr. Mária Szívós and dr. András Varga Zs. attached dissenting opinions to the decision.
The defendant of the case behind the constitutional complaint was the publisher of a national daily newspaper. An article with the title “Investigation under way against bishop” – the person concretely identified by name – “due to coercion” was published in the paper. The diocesan mentioned in the title had been the plaintiff of first order and subsequently he became one of the petitioners of the constitutional complaint. Further in the article the newspaper presented the following: the prosecutor’s office ordered investigation due to the suspicion of the criminal offence of coercion, “related to the acts” of the diocesan and the commissary.
To protect their rights, the plaintiffs turned to the court. In their opinion, the newspaper falsely stated that an investigation had been started against them due to any criminal offence, as in fact they have not been suspected and the investigation took place against an unknown perpetrator. The title of the article was about an investigation against one of them, despite of the fact that they have not been incriminated. After court proceedings of multiple stages, the plaintiffs finally turned to the Constitutional Court with a constitutional complaint. According to the petitioners, the Curia acted contrary to the Fundamental Law when it held permissible for the title of a press article to contain a falsehood.
As underlined by the Constitutional Court: if the whole of the press article provides true information, then the smaller inaccuracies, falsehoods found in certain sentences or terms of the article do not form ground for legal accountability. However, the Constitutional Court holds at the same time that the criteria concerned should be considered differently when they are applied with regard to the title of an article. In the course of the assessment focusing on personality rights, the title of a press article does not form unity with other parts of the article.
Accordingly, the interpretation of the law provided by the Curia does not comply with the criteria of constitutionality in its part stating that the falsehood contained in the title of the article should be assessed in the light of the totality of the article. Therefore the Constitutional Court annulled the challenged judicial decision. There shall be a repeated procedure in the case, as it is still the duty of the court in charge to decide about the lawfulness of the concrete article concerned in the case.
Judges Dr. Attila Horváth, Dr. Béla Pokol, Dr. Mária Szívós and Dr. András Varga Zs. attached concurring opinions to the decision.
Lack of provision for a name-changing process for lawfully settled non-Hungarian citizens violated the right to human dignity and the prohibition of discrimination.
The Constitutional Court established: there is a lack of conformity with the Fundamental Law manifested in an omission, as the legislator failed to secure, by way of the Act CLXXXI of 2007 on the transparency of support provided from public funds, the transparency of the support provided to natural persons by the foundations established by the Hungarian National Bank and financed from public funds. In the first case serving as the basis of the constitutional complaint, the petitioner filed a request for data related to grant applications to one of the foundations of the National Bank of Hungary. Due to the refusal of the data request, the petitioner brought an action for the judicial review of the refusal. The Budapest-Capital Regional Court proceeding in the case on first instance obliged the defendant to perform the data request, but it rejected the claim aimed at obtaining the personal data of the natural person applicants. Then the Budapest-Capital Regional Court of Appeal, as the court of second instance, also refused to bind the foundation to disclose the names of the winner applicants, as it held that the data of the natural person applicants were neither data of public interest nor data public on grounds of public interest. The case underlying the second constitutional complaint had a similar course of events. The petitioner claimed in both constitutional complaints that the challenged judgements violate the right to have access to data of public interest. The Constitutional Court has not found the constitutional complaints well-founded. [It would fall into the competence of the Constitutional Court if the task to be completed was the interpretation of the concept of data relating to public funds and national assets, namely the types of data that the Fundamental Law qualifies as data of public interest in this scope. However, the question raised in the basic case was the accessibility of the personal data of natural persons who are winners of the applications for grants of the defendant organisations financed from public funds. Thus the only question the Constitutional Court could examine about the judicial decision was whether the judicial decision violated or not the scope of interpretation set by the Fundamental Law, this way restricting access to the data of public interest (data public on grounds of public interest). In the present case, the Constitutional Court could not verify the a breach of the Fundamental Law by the court. Still the legislator must adopt regulations securing the balanced enforcement of fundamental rights to the greatest possible extent. However, the the legislator failed to secure appropriately the transparency of the supports provided by the foundations established by the Hungarian National Bank and financed from public funds and the accessibility of the data related to the beneficiaries of this fund. The Constitutional Court – acting ex officio – verified the violation of the Fundamental Law, manifested in an omission, and called upon the Parliament to meet its legislative duty by 30 September 2018. Justices dr. Béla Pokol and dr. András Varga Zs. attached dissenting opinions to the decision.