Year One for Hungary’s Basic Law: A View From the Court

by Sandor Udvary, On January 28, 2013

2012 was an exciting year for the Hungarian Constitutional Court due mainly to the establishment of the new Basic Law of Hungary (Constitution) and Parliament’s new Act on the Constitutional Court. Great expectations surrounded the new fundamental regulations, and there were many questions about the new competences of the Court. Specifically, observers wondered about the effect of the “real constitutional complaint,” according to which plaintiffs could challenge judicial decisions themselves as applied in their case. The legislature received serious criticism for narrowing the competence of the Court concerning financial matters – these remain reviewable only on grounds of “human dignity” or other fundamental rights until such time when state debt drops below fifty per cent of annual Hungarian GDP. The former actio popularis nature of constitutional review also ceased; only several high officials of the state – including the commissioner for fundamental rights or ombudsman – may commence the review without having to prove personal interest in the procedure. At the same time, the “direct complaint” (for violations of constitutional rights without judicial procedure) was introduced; direct complaints require the challenger to prove standing, however, and the Court may reject those complaints that do not raise “constitutional law issues of fundamental importance.” Furthermore, mandatory legal representation was prescribed for the constitutional complaint procedure.

The first half of 2012 mainly allowed for processing of the heavy backlog of cases that had accumulated under the former rules of constitutional review. During this time the Court had also sought to find a new approach that allowed for adjudication of those complaints that could have been solved with simple interpretation of laws, without the need to interpret the constitution. Regarding the direct complaint, the Court confirmed that this tool is not a substitute for the former constitutional review; hence the strict interpretation of the standing requirement and the need for exhaustion of alternative remedies. With a very important decision [22/2012. (V. 11.) AB dec.], the Court also ruled that despite the fundamental changes in both the constitutional regulations and the Court’s status and competences, the twenty-two year-long case law accumulated under the former constitution shall be binding on the interpretation of the new Basic Law as well since human rights, the underlying values of the constitutional rights, largely remained intact (only if, however, the constitutional context is the same or identical, as it is in most cases regarding human rights). Thus, a departure from the former precedent must be adequately reasoned. This decision closed a heated debate over the binding force of the former precedent.

The spring-summer session of the Court ended with several key decisions, most importantly a decision annulling the law that required the mandatory retirement of those judges who reach the general retirement age. (This age is 62 in Hungary as of 2012, but shall rise to 65 until 2022). According to the former rules, the retirement age was 70. Hence, the legislative act meant the mandatory retirement of nearly 300 active judges.) The Court found a right to a lawfully created tribunal which found that the removal of these judges from their cases with anything less than a cardinal act (two-thirds majority act of the Parliament) would violate the Fundamental Law. Since the law defining the general retirement age is not a cardinal act, and was not passed with the required two-thirds majority, the law was annulled. It is worth mentioning that this ruling was a closely divided eight-to-seven decision. Later in the year the European Court of Justice also found violations of several European laws in this matter, and the reinstatement of the judges affected is still pending.

During the autumn-winter session of the Constitutional Court the five-justice panels delivered hundreds of decisions, mainly regarding ineligible constitutional complaints. However, upon the petition of the ombudsman, several very important decisions were delivered. In October, Parliament’s laws penalizing continuous residence in public areas – the criminalization of homelessness – were annulled. Though this decision was widely criticized by the authorities responsible for homeless care, the Court saw that the interests of public order – without any actual disturbing or threatening action on the part of the homeless – do not justify the criminalization of living on the streets. Four justices dissented in this decision.

In December, again at the petition of the ombudsman, the Court also annulled a portion of the laws regarding handicapped citizens which held that those with disability pensions would lose their state support if they receive any wage from their personal labor, even for public work. It was a regulation contrary to the original legislative purpose since it hinders rather than promotes the return of these disabled people to the labor market. On December 17, the Court publicly announced the decision regarding the law on the protection of families. The definition of the family was annulled as unduly narrow since same-sex civil unions were excluded from the protective measures of the act. On the same account, the regulation prohibiting inheritance after the intestate death of one same sex partner was also annulled, since it provided less legal protection than the former rules of inheritance.

And on the 28th of December – during an extremely rare holiday sitting – the unexpected happened. The Constitutional court – which is bound only by the Basic Law – annulled most of the Transitory Regulations of the Basic Law. These were supposed to have the same legal status as the Basic Law, and were therefore supposed by Parliament to be unreviewable by the Court. With daring but sound reasoning, however, the Court established that the legislation exceeded its own powers when it enacted substantive and permanent constitutional regulations under supposedly temporary authority.

In short, after the highly public loss of several key competences, the Constitutional Court spent the rest of the year 2012 staking out powers of review on some of the most controversial public policies. The Court proved its will to go beyond formal inquiry or superficial rubberstamping. Even under the new Basic Law, the essence of the former twenty-two years of constitutional case law has been continually applied and the Court carved out its own constitutional sphere of competence within the Basic Law. Most recently, after receiving a petition from Hungary’s President, the Court rendered a decision about the proposed changes to the electoral system, a historic decision with important lessons for the legislature. With this momentous start to 2013, the Court is expected to render several more important decisions in coming months as Hungary’s institutions of government continue to sort out the legal realities of Hungary’s constitutional order under the one-year old Basic Law.

–Sandor Udvary, Ph.D., is an associate professor of Károli University, School of Law and a counselor to the Constitutional Court of Hungary. 



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This blog is provided by the Common Sense Society of Budapest as an online, English-language platform for the publication and exchange of diverse and differing perspectives about Hungarian politics, economy, and culture. The views represented here are those of the authors and do not necessarily reflect the opinions of CSS. The Common Sense Society does not receive funding from any government entity or political party.