The Constitutional Court, in connection with the judgment of the Court of Justice of the European Union on the status of foreigners unlawfully residing in the territory of the Hungarian State, has ruled, on the basis of the interpretation of the Fundamental Law, that where the joint exercise of competences is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. However, the Constitutional Court did not assess whether the incomplete effectiveness of the joint exercise of competences was realised in the specific case. The Constitutional Court also emphasised in its decision that the abstract interpretation of the Fundamental Law cannot be the subject of a review of the CJEU judgment, nor does the procedure in the present case extend to the examination of the primacy of EU law. On behalf and under the authorisation of the Government, the Minister of Justice submitted a petition to the Constitutional Court seeking an interpretation of Article E (2) and Article XIV (4) of the Fundamental Law, because the implementation of the judgement of the CJEU delivered on 17 December 2020 in Case C-808/18 raises a constitutional problem that warrants an interpretation of the Fundamental Law. The Constitutional Court, interpreting the ‘Europe Clause’ of the Fundamental Law, held that where the exercise of joint competences with the Union is incomplete, Hungary shall be entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The Constitutional Court further held that where the incomplete effectiveness of the joint exercise of competences results in consequences that raise the issue of the violation of the right to identity of persons living in the territory of Hungary, the Hungarian State shall be obliged to ensure the protection of this right in the context of its obligation of institutional protection. Finally, the Constitutional Court held that the protection of the inalienable right of Hungary to determine its territorial unity, population, form of government and State structure shall be part of its constitutional identity. The Government sought an interpretation of the Fundamental Law from the Constitutional Court. The petitioner submits that the implementation of the judgement of the Court of Justice of the European Union in case C-808/18 raises the constitutional problem at issue if Hungary allows the implementation of an EU legal obligation which may lead to a foreign national illegally staying in Hungary remaining in the territory of a Member State for an indefinite period of time and thus becoming part of the population of that State. In its decision, the Constitutional Court observed that the abstract constitutional interpretation cannot be converted into a position applicable to the specific case giving rise to the petition, and therefore the Constitutional Court only addressed the genuine problems of constitutional interpretation directly derivable from the issue. The Constitutional Court thus interpreted Article E (2) of the Fundamental Law. The Constitutional Court was not in a position to assess whether the incomplete effectiveness of the joint exercise of competences had been resolved in the specific case. Nor was the Constitutional Court able to take a position on the question whether the petitioner’s argument that the CJEU judgement could lead to foreign nationals becoming part of the population of Hungary was correct. The Constitutional Court found that the above was a matter to be judged by the body applying the law and not by the Constitutional Court. However, the Constitutional Court stressed that the abstract interpretation of the Fundamental Law cannot be aimed at reviewing the judgement of the CJEU, nor does the Constitutional Court’s procedure in the present case, by its very nature, extend to the review of the primacy of EU law. The Constitutional Court had to assess whether the incomplete effectiveness of the joint exercise of competences could lead to a violation of Hungary’s sovereignty, constitutional identity or fundamental rights and freedoms (including, in particular, human dignity) enshrined in the Fundamental Law. The Constitutional Court first considered the possible violation of the fundamental rights and freedoms guaranteed by the Fundamental Law. The Constitutional Court pointed out that Man, as the most elementary constituent of all social communities, especially the State, is born into a given social environment, which can be defined as the traditional social environment of man, especially through its ethnic, linguistic, cultural and religious determinants. These circumstances create natural ties, determined by birth, which shape the identity of community members. These natural ties or qualities, which are determined by birth, are seen as circumstances that influence a person’s self-determination, which, on the one hand, are created by birth and, on the other hand, are qualities that are difficult to change. Protection under constitutional law should not be an abstract, static protection of the individual detached from his or her historical and social reality: It must take into account the dynamic changes in contemporary life. In the Constitutional Court’s view, since the State cannot make unreasonable distinctions regarding fundamental rights on the basis of these characteristics, it must also ensure, in the light of its obligation of institutional protection, that changes to the traditional social environment of the individual can only take place without significant harm to these determining elements of identity. The Constitutional Court stated, that the joint exercise of the competences through the institutions of the European Union may not lead to a lower level of protection of fundamental rights than that required by the Fundamental Law. In the same vein, the fact that an EU legal norm binding on the Member States meets the requirements of the Constitution but is not properly implemented, that is, the result of the binding norm is not or only partially enforced, cannot lead to a lower level of protection of fundamental rights than required by the Constitution. In that context, the Constitutional Court has held that if the joint exercise of the competences through the institutions of the European Union is incomplete, Hungary is entitled, in accordance with the presumption of reserved sovereignty, to exercise the relevant non-exclusive field of competence of the EU, until such time as the institutions of the European Union take the measures necessary to ensure the effectiveness of the joint exercise of competences. The decision was accompanied by a concurring reasoning by justice dr. Czine Ágnes, dr. Dienes-Oehm Egon, dr. Horváth Attila, dr. Hörcherné dr. Marosi Ildikó, dr. Márki Zoltán, dr. Salamon László, dr. Schanda Balázs, dr. Szabó Marcel and dr. Szívós Mária and a dissenting opinion by justice dr. Hörcherné dr. Marosi Ildikó and dr. Pokol Béla.

The Constitutional Court rejected the constitutional complaints for the declaration of a conflict with te Fundamental Law and annulment of the Government Decree No. 27/2021 (I.29.) on the declaration of a state of danger and the entry into force of emergency measures, and the Government Decree No. 449/2021 (VII.29.) on the compulsory use of the coronavirus vaccination. According to the provisions challenged in a large number of petitions, in order to protect the health and life of citizens, employees of health care providers are obliged to take up the vaccination by 1 September 2021 (15 September 2021 after the amendment of the decree) in the case of single-dose vaccines, or the first dose of the vaccination in the case of double-dose vaccines, and the second dose of the vaccination by the date set by the vaccinating physician. The government decree that entered into force on 19 November 2021 also required taking a third vaccination. Failure to take up the vaccinations shall result in immediate termination of the employment of the employee by way of dismissal or termination and the employee shall not be entitled to any notice period of dismissal or termination to any severance pay. However, the employee is exempted from the obligation if he/she is contra-indicated for medical reasons to take up the vaccination and this is supported by a medical opinion. The Constitutional Court has received a large number of constitutional complaints (almost 300), drafted on the basis of different model motions, but with essentially the same wording, concerning the mandatory vaccination against COVID-19 for health workers. The Constitutional Court merged these model motions in the present case, and admitted the constitutional complaint on 5 October 2021, and subsequently, in the course of the substantive examination, ruled on the case with urgency. The petitioners are health care workers subject to the government regulations. In their view, the contested provisions infringe the right to human dignity, the right to working conditions which respect health, safety and dignity, and the fundamental right to physical and mental health. As explained in the petitions, the government decrees on the mandatory use of the coronavirus vaccination, going beyond the mandate of the Fundamental Law, impose a disproportionate legal burden on the non-use of the vaccination and are unreasonable in relation to the objective pursued. In its decision, the Constitutional Court stated that the contested regulation serves the continuous operation of the health care system and the safety of patient care, and within the framework of these state objectives, the enforcement of the right to life and health of the members of society, the patients. The Constitutional Court recognised the enforcement of the right to life and health guaranteed by the Fundamental Law, the protection of institutions, the reduction of the health, social and economic impact of the coronavirus epidemic, and, in particular, the continuous functioning of the health care system and the safety of patient care as legitimate objectives of the mandatory vaccination of health care workers. In its decision, the Constitutional Court, also referring to the position taken by the World Health Organization (WHO), stressed that the achievement of public health objectives – in particular the containment of a serious epidemic and the mitigation of its consequences – may justify the use of coercive legal instruments as a last resort. In the present case, although the law-maker did not use direct coercion to require vaccination, it undoubtedly exerted strong pressure on health professionals (i.e. those who come into direct contact with patients) by imposing adverse legal consequences for failure to taking up the vaccine. The aim is to increase vaccination coverage in the health sector, which is the most critical sector for tackling the epidemic. In the Constitutional Court’s view, the actual obligation to taking up vaccination constitutes a proportionate restriction of the right to health self-determination, therefore the creation of the sanction under the contested legislation did not result in a disproportionate interference with the petitioners’ right to health self-determination and the essential content of that right. On the basis of the above, the Constitutional Court considered that the restriction of fundamental rights provided for was necessary and proportionate, and therefore rejected the petitions for a declaration that the contested provisions of the government decrees were contrary to the Fundamental Law and for their annulment.

The Constitutional Court ruled on the motion of the President of the Republic that the provisions of the Act adopted by the Parliament but not yet promulgated, which would have granted buying option right to the tenants who have rented a state-owned or municipally-owned apartment in a national heritage building for not more than 25 years, are contrary to the Fundamental Law. In its decision, the Constitutional Court also ruled as a constitutional requirement that in the case of the exercise of the right of option granted to the tenants of flats in a national heritage building, the heritage protection authority must give its consent to the sale by taking into account the aspects of national heritage protection. The procedure of the Constitutional Court was based on a motion by the President of the Republic, in which he requested an examination of the conformity with the Fundamental Law of Sections 1 to 3 of the Act amending the Act LXXVIII of 1993 on certain rules related to the Rent and the Sale of Flats and Premises and the Act CXCVI of 2011 on National Assets. The purpose of the provisions of the Act affected by the motion is to enable the tenants to acquire ownership of the flats they rent, provided that these flats are located in national heritage buildings previously excluded from the right of option applicable to state and municipal flats in the context of the privatisation of exclusive state property prior to the change of the regime. In the view of the President of the Republic, the legislative objective and the right of option established in the contested draft amendment to the Act are incompatible with the constitutional requirement to protect and preserve the built environment as part of the cultural heritage, in particular the buildings under national heritage protection. While under the current legislation, a flat in a national heritage building can only be sold with the consent of the heritage protection authority, in accordance with the provisions of a specific law, the new provisions laid down in the proposed Act would establish a right of option to the entire range of state- and municipality-owned national heritage properties in the World Heritage Area and its protection zone. According to the President of the Republic, this is contrary to non-derogation, which guarantees the protection and preservation of cultural values, and the need for such a restriction municipality ownership is unjustified and disproportionate. In relation to the restriction of the right to property, the Constitutional Court explained that the right of option may result in the termination of the right to property, which is a heavy burden and requires compensation. The municipality must receive a consideration for the flats lost due to the right of option that keeps in its assets a value commensurate with the value of the flats it owned. The method of securing the proportionality of values must be formed by the legislature. Any variation or amendment to the existing provisions satisfying the constitutional condition that the principle of proportionality is respected is possible. The Act has defined three categories of persons entitled to the right of option: those who have been renting the flat for between 5 and 15 years, those who have been renting it for between 15 and 25 years and those who have been renting it for more than 25 years. According to the reasoning, the law-maker considered the conditions under which tenants – who had previously acquired a right of option – in a similar situation to the tenants concerned now, could exercise it under the statutory and municipal rules established in the 1990s, to be the relevant conditions. However, in the Constitutional Court’s view, the provisions of the Act are only consistent with the law-maker’s objective in the case of tenants whose tenancy exceeds 25 years. However, the exceptional nature – as required by the Fundamental Law – of the regulatory solution concerning the other two categories of subjects has not been justified by the law-maker. The Constitutional Court has therefore declared the provisions of the Act relating to the right of option of the tenants who have been in a tenancy for less than 25 years to be contrary to the Fundamental Law. The Constitutional Court further explained in its decision that the requirement of non-derogation previously established in relation to the right to a healthy environment is constitutionally applicable to the obligation undertaken by the State in the context of the protection of national heritage buildings. Its essential aim is to ensure that the level of protection once achieved is not lowered. It is a constitutional requirement that, in the case of the sale of national heritage buildings, the State should provide appropriate guarantees to ensure that the relevant building is managed after the change of ownership in accordance with its level of national heritage protection. This is a particularly important guarantee in the case of the flats covered by the Act under review, most of which are being taken out of state or municipal ownership for the first time. The Constitutional Court has therefore stressed that the State has a duty to incorporate into its legislation guarantees that contribute to maintaining the level of protection, even in the case of legal transactions concerning national heritage buildings. Therefore, the Constitutional Court established as a constitutional requirement under Article P (1) of the Fundamental Law that the agency exercising the regulatory right to protect national heritage buildings should not subordinate the interests of the protection of heritage buildings to other aspects in its decision-making, and thus it should give consent to the sale, as a precondition of exercising the right of option, by taking into account the aspects of the protection of national heritage buildings.

The Constitutional Court established as a constitutional requirement that the law-maker may only suspend the exercise of the right of assembly in times of a state of danger for a period of time and within the scope of what is indispensably necessary, and only in such a way that it must examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right or its restriction exceeding the requirement of proportionality under the Fundamental Law. In the case at issue, the petitioner sought the declaration that certain provisions of the Government Decree on the second phase of protective measures applicable during the period of state of danger were contrary to the Fundamental Law and the annulment of those provisions. According to the contested provisions, it is prohibited to assemble or gather in public ground or public places, or to organise, hold or be present at the place of an event or gathering during the time of the state of danger. In the petitioner’s view, the contested provisions unnecessarily and disproportionately restrict, in fact, empty out the right to assembly, and by excluding the consideration of the circumstances and by laying down the general prohibition in the law, deprive the petitioner of the possibility of effective judicial remedy. In its decision, the Constitutional Court stated that the right to assembly is one of the most important fundamental political rights, which is the cornerstone of any democratic society, but the protection against the coronavirus epidemic, the minimisation of risks as far as possible, is also a prominent, constitutionally justified objective of the state. Although it would be an exaggeration to state that all fundamental rights must be fully respected in order to protect against an epidemic, in the present case, the temporary exclusion of the freedom of assembly, one of the riskiest fundamental rights for the spread of the epidemic, can be considered a necessary restriction. In its decision, the Constitutional Court stressed, however, that the proportionality of the rules is particularly important in terms of the time: the longer the period of suspension of the exercise of a fundamental right, the stronger justification is needed for maintaining the restriction. The complete exclusion of the exercise of a fundamental right cannot be justified on the basis of the danger alone, but it must be decided on a recurring basis whether the circumstances actually justify the suspension of the fundamental right. Therefore, the Constitutional Court, in addition to rejecting the constitutional complaint, attached a constitutional requirement to the challenged legislation, according to which the legislator may suspend the exercise of the right of assembly only for the time and within the scope strictly necessary even in times of a state of danger, and is obliged to examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right.

The Constitutional Court rejected the judicial initiative against the Act on the University of Theatre and Film Arts and certain provisions of the Higher Education Act, but established as a constitutional requirement that the maintaining authority must provide sufficient time for the exercise of the right of the senate of the higher education institution to express its opinion and the opportunity to formulate a substantive proposal, which it must take into account in a traceable manner in its decision-making. In the case underlying the procedure, the Student Self-Government of the University of Theatre and Film Arts (SZFE) brought an action against the defendant SZFE maintaining foundation, which, following the amendment of the Higher Education Act and the transfer of the university to the foundation, adopted a new university charter and new organisational and operational regulations in August 2020. In connection with the amendment of the Higher Education Act, the petitioning judge explained that, in his opinion, the provision of the Act, according to which the defendant foundation exercising the right to maintain the university was established by the Government, the minister of innovation and technology exercises the rights of founder over it, and appoints the board of trustees of the defendant, while the Government provides its assets, is contrary to the provision of the Fundamental Law guaranteeing the freedom of Hungarian scientific and artistic life. According to the motion, it is essential for the realisation of university autonomy that the institution of higher education has autonomy vis-ŕ-vis the executive power in matters directly related to academic activity. In its decision, the Constitutional Court stated that the legislative environment giving rise to the constitutional problem raised by the petitioner has been changed by the law-maker in the meantime, regulating that the senate, the custodian of higher education autonomy, exercises the right to give an opinion or to give its consent regarding the powers previously allocated solely in the remit of the board of trustees. According to the Constitutional Court, the challenged provision does not violate the Fundamental Law due to the regulation giving the senate substantive influence, and therefore the Court rejected the judicial initiative to annul the relevant provision of the Higher Education Act. At the same time, the Constitutional Court explained that the operation of higher education institutions is the responsibility of the maintainer, who may not exercise this right by making the organisational framework ensuring the autonomy of the higher education impossible or inoperable. The board of trustees and the senate have a common interest in the successful and efficient operation of the higher education institution, and this necessarily implies that conflicts along the common interest must be resolved through mutual cooperation between the two bodies in order to ensure the operability of the institution. According to the Constitutional Court’s decision, it is a constitutional requirement following from ensuring the sustainability of the higher education system and guaranteeing the autonomy of higher education institutions that if the maintaining body adopts the budget, annual report, organisational and operational rules and asset management plan of the higher education institution, decides on the establishment of or the acquisition of shares in a business organisation, or calls for applications for the post of the rector, it must give the senate of the higher education institution sufficient time to exercise its right to express its opinion, provide it with the opportunity to make substantive proposals, and take these into account in a transparent manner in its decision-making.

The Constitutional Court declared to be in conflict with the Fundamental Law and annulled the rulings of the Szekszárd Regional Court and the Paks District Court in the subject-matter of keeping contacts. In the case underlying the proceedings, the petitioner was a father living separately from his child, and the child was not handed over by the mother to the father with reference to the emergency situation ordered due to the coronavirus epidemic. The petitioner asked the court to order the enforcement of contacting, however his request had been rejected by the court at first instance, upheld by the court of second instance. According to the petitioner, his right to a fair trial and his right to family life and contacting have been violated due to the grossly contra legem application of the law in the rulings and the lack of adequate reasoning. In its decision, the Constitutional Court found that the proceeding court had failed to comply with the requirement of the gentle equalization and fair balancing of fundamental rights’ positions based on the principle of proportionality, because it had decided to restrict contacting rights solely on the basis of the general epidemic risk as a remote, abstract health risk. The judicial decisions could therefore lead to the emptying of this right, therefore the Constitutional Court annulled the challenged judicial decisions.

The Constitutional Court found that the judgements delivered by the Curia and the Budapest-Capital Regional Court in the subject-matter of offending the Catholic community were in conflict with the Fundamental Law and, therefore, annulled them. In the case underlying the procedure, the petitioners, as the members of the Catholic community, brought an action as plaintiffs with the Budapest-Capital Regional Court because of a performance performed at a demonstration against the position taken by the Polish Catholic Church in support of the prohibition of abortion. In their action, the plaintiffs asked the court to declare that through their affiliation with the Catholic religious community, which was an essential feature of their personality, the defendants violated their human dignity and their right to practice their religion freely by presenting a performance – subsequently uploaded to the internet – imitating the Eucharist, in which one protester placed a white pill from a bag labelled “abortion pill” on the tongue of the other two defendants, accompanied by making the statement “Body of Christ”. The Budapest-Capital Regional Court acting on first instance dismissed the action and the Curia, in its judgement closing the review proceedings, upheld the judgement of first instance. According to the petitioners, the judgements of the regional court and the Curia are contrary to the provisions of the Fundamental Law granting that the exercise of the freedom of expression may not be aimed at violating the human dignity of others or religious communities. In its decision, the Constitutional Court found that the challenged judgements acknowledged that the petitioners had been offended through their religious community, at the same time, they accepted the offensive communication as a constitutionally protected expression of opinion, without examining the content of the opinion of the specific conduct actually complained about or its contribution to the discussion of a public affair; consequently, the courts hearing the case (could) not have examined with due diligence whether or not the communication at issue was intended to offend the community concerned. With regard to offensive communication, the courts stated that members of the religious community were subject to a broad tolerance obligation similar to that of public figures, as a result, the protection of the dignity of the petitioners’ religious community was undermined by the exercise of the freedom of expression. The Constitutional Court found that the challenged decisions were in conflict with the Fundamental Law and therefore annulled them. However, the Constitutional Court stressed that due to the limitations of its competence, the Constitutional Court did not establish in its decision whether or not the specific act complained of in the case seriously harmed or unjustifiably offended the Catholic religious community and, through it, the human dignity of the petitioners, as it will be up to the courts proceeding repeatedly to judge upon these issues.
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In the course of the proceedings initiated by the motion of the President of the Republic, the Constitutional Court found that Section 49 (1) of the Act on Amendments to Certain Energy and Waste Management Acts, passed by the National Assembly on 15 December 2020, was contrary to the Fundamental Law. Under the challenged paragraph of the Act, the possessor of waste may dispose of it only by transferring it to the State, the concessionaire or the concessionaire’s subcontractor, which waste thus becomes the property of the State, the concessionaire or the concessionaire’s subcontractor; according to this, the ownership of production and industrial waste is taken away by law. However, as explained in the petition, these wastes represent value, but the law does not provide for the related compensation in any way, and it even foresees the obligation of the original waste holder to pay for these wastes, which causes double damage to the producer with respect to commercially tradeable wastes. In the opinion of the President of the Republic, the amendment violates the provision of the Fundamental Law guaranteeing the protection of the right to property by ordering the withdrawal of the property of production and industrial waste without full, unconditional and immediate compensation. In its decision, the Constitutional Court found that the challenged provision does in certain cases indeed restrict the ownership of waste by the possessor of waste who is also the owner of waste in such a way as to cause to it real and pecuniary disadvantage without providing for an obligation of compensation to secure proportionality. The Constitutional Court emphasized that it is the task of the law-maker to create a sufficiently differentiated system that simultaneously creates compensation for waste owners and takes into account the full enforcement of mandatory public service, environmental and public health aspects in such a manner to make them comply with our regulatory obligations under EU regulations. The President of the Republic also initiated to declare that Section 38 (2) and Section 62 of the Act are contrary to the Fundamental Law, but the Constitutional Court rejected the motion to that effect.

In addition to rejecting the motion for posterior norm control, the Constitutional Court established as a constitutional requirement that Section 5 of the Act on the investment project in relation to the capacity conservation of the Nuclear Energy Plant of Paks and modifying certain related Acts is applicable to the subcontractors of the Russian party and the subcontractors of the Hungarian party only if they are considered to be organisations performing a public duty. Section 5 of the Act excludes, for a period of thirty years from the date of its creation, the disclosure of all “business data”, “technical data” and “data on which a decision is based” as data of public interest related to the implementation of the expansion of the Paks Nuclear Power Plant. The petitioning MPs asked the Constitutional Court to declare this provision to be contrary to the Fundamental Law and to annul it with retroactive effect to its promulgation. According to the petitioners, this is contrary to the fundamental right to have access to and disseminate data of public interest and to the provision of the Fundamental Law stating that all organisations managing public funds must give public account of their management of public funds. In its decision, the Constitutional Court established that the disclosure of the data for the purpose of substantiating the decision may be restricted by a specific Act of Parliament in accordance with the Act on the Right to Informational Self-Determination and Freedom of Information. The protection of national security interest and intellectual property rights indicated by the challenged Act may justify a restriction on the disclosure of the data for the purpose of substantiating the decision. The Constitutional Court further held that, contrary to the petitioners’ claim, the text of the Act prescribing thirty years for the closure of the data concerned cannot be considered a disproportionate restriction, as it cannot be held an ex lege restriction; it is only a statutory presumption assuming that within this period the publicity of the data could damage the values to be protected. However, as the Act itself requires a “public interest test” to be performed, the restriction can only be applied if there is a greater public interest in it than in the disclosure of the data concerned. In view of all this, the Constitutional Court found that the challenged provision of the Act did not cause any unnecessary or disproportionate restriction of the referred to provisions of the Fundamental Law, therefore it rejected the petitioners’ motion for posterior norm control. However, in order to facilitate the application of the law, the Constitutional Court considered it necessary to establish as a constitutional requirement: the challenged provision of the Act is applicable to the subcontractors of the Russian and Hungarian parties only if they are to be regarded as organizations performing a public duty.

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.
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