1.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 2/2019 (III. 5.) of the Constitutional Court of Hungary / 2/2019. (III. 5.) AB határozat |
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Date of Text (Adopted) |
25 February 2019 |
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Type of text |
Decision of the Constitutional Court of Hungary / AB határozat |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
Article E) (2) (Europe clause) Article R) (4) (rule of constitutional interpretation, protection of constitutional identity and Christian culture) Article XIV (4) (right to asylum) Article 24 (1) (Constitutional Court) The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf |
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Subject area |
transfer of competence to the European Union, collective expulsion |
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Comment |
This is the second decision of the Constitutional Court interpreting constitutional identity. The first one was Decision no. 22/2016. (XII. 5.) (the so-called constitutional identity decision). Criticism has been raised as to the Constitutional Court’s interpretation of constitutional identity, judicial dialogue and the relationship between EU law and domestic law (see articles below). The summary by the Constitutional Court: „On behalf of the Government of Hungary, the minister of justice submitted a motion to the Constitutional Court requesting the interpretation of the Fundamental Law concerning the relation between the Fundamental Law and the law of the European Union. The background of the case is that the European Commission sent an official notice to Hungary – in the framework of an infringement proceeding – in which it explained that according to the Commission’s interpretation the provisions of the Fundamental Law on asylum violate the relevant regulations of the European Union. The particular constitutional issue raised by the petitioner was the relation between the interpretation of the Fundamental Law by an organ of the European Union and the genuine interpretation provided by the Constitutional Court. The Constitutional Court pointed out: Hungary participates in the European Union in the interest of developing the European unity, for the purpose of expanding the freedom, prosperity and security of European nations. The Union law does not fit into the hierarchy of the domestic sources of law; it has been made part of the legal system by a constitutional order incorporated in the Fundamental Law. In most cases the parallel existence of Union law and domestic law does not cause any constitutional dilemma as the two normative systems are based on a common values. However, with regard to the assessment of certain national norms, the Constitutional Court and the European Union may reach different conclusions. Since the Fundamental Law requires compliance with the Union law, as a constitutional obligation, collisions may be resolved by paying respect to constitutional dialogue. However, the genuine interpretation of the Fundamental Law is the duty of the Constitutional Court and all organs or institutions shall respect it in their own procedures. The Constitutional Court has committed itself to constitutional dialogue: in the present case it interpreted the Fundamental Law in line with the so called Europe-friendliness by interpreting the content of the norm to also comply with the law of the European Union. Regarding asylum, the Constitutional Court underlined: the right to asylum is not the refugee’s individual subjective right and it stems from the international treaties undertaken by Hungary. A non-Hungarian national who arrived to the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution shall have a claim, protected as a fundamental right, to have his or her application assessed by the authority. It is the duty of the Parliament to determine and lay down in a cardinal Act the fundamental rules on granting asylum.” |
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Secondary sources/ doctrinal works (if any) |
Körtvélyesi, Zsolt and Majtényi, Balázs: sid=8c73dcaf-d777-42ee-9ac7-ee57f95dbb3f@pdc-v-sessmgr02">Game of Values: The Threat of Exclusive Constitutional Identity, the EU and Hungary, German Law Journal, Vol. 18, Issue 7 (2017), pp. 1721-1744 Halmai, Gábor: sid=8c73dcaf-d777-42ee-9ac7-ee57f95dbb3f@pdc-v-sessmgr02">Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law, Review of Central & East European Law, Vol. 43 Issue 1 (2018), pp. 23-42 |
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Available Text |
in Hungarian: http://public.mkab.hu/dev/dontesek.nsf/0/A69AEC612BA90BAEC125830C005216DB?OpenDocument in English: https://hunconcourt.hu/uploads/sites/3/2019/03/2_2019_en_final.pdf |
2.
|
2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 3/2019 (III. 7.) of the Constitutional Court of Hungary / 3/2019. (III. 7.) AB határozat |
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Date of Text (Adopted) |
25 February 2019 |
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Type of text |
Decision of the Constitutional Court of Hungary / AB határozat |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
Article B (1) (Rule of Law principle) Article I (3) (fundamental rights limitation test) Article VIII (2) (right to association) Article IX (1) (freedom of expression) Article XXVIII (4) (presumption of innocence) The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf |
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Subject area |
criminal law, immigration, human rights |
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Comment |
This decision was rendered in a constitutional complaint procedure challenging the constitutionality of Article 353/A of Act C of 2012 on the Criminal Code (facilitation and support of illegal immigration) Shortly after the entry into office of the Fidesz-KDNP majority in the spring of 2018 after a third consecutive land-slide victory, the National Assembly adopted the Seventh Amendment to the Fundamental Law which inserted – inter alia – certain provisions in the constitutional text on the protection of national identity and the prevention of illegal immigration. What followed was the introduction of the so-called “Stop Soros” legislative package (a clear reference to the Hungarian born American billionaire and philanthrope, George Soros). One of the elements of the package was the criminalization of “facilitating illegal immigration”, which extended the already existing prohibitions of the Criminal Code to all types of organizational activities not directly related to illegal immigration. The Venice Commission and the Office for Democratic Institutions and Human Rights (ODIHR) expressed serious concerns regarding this piece of legislation for its incompatibility with the freedoms of expression: - Joint Opinion on the Provisions of the so-called “Stop Soros” draft Legislative Package which directly affect NGOs (in particular Draft Article 353A of the Criminal Code on Facilitating Illegal Migration), CDL-AD(2018)013-e The European Commission initiated an infringement procedure against Hungary which entered in its second phase in January 2019. It is in this context that the Hungarian Constitutional Court ruled that the criminalization of “facilitating illegal immigration” – introduced by the so-called Stop Soros legislative package targeting human rights NGOs – does not violate the Fundamental Law. However, the judges gave a restrictive interpretation to the law. |
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Secondary sources/ doctrinal works (if any) |
Kazai, Viktor Zoltán: Stop Soros Law Left on the Books – The Return of the “Red Tail”?, VerfBlog, 2019/3/05, https://verfassungsblog.de/stop-soros-law-left-on-the-books-the-return-of-the-red-tail/ |
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Available Text |
In Hungarian : http://public.mkab.hu/dev/dontesek.nsf/0/DB659534A12560D4C12583300058B33D?OpenDocument In English : http://public.mkab.hu/dev/dontesek.nsf/0/DB659534A12560D4C12583300058B33D?OpenDocument&english |
3.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 15/2019. (IV. 17.) of the Constitutional Court of Hungary / 15/2019. (IV. 17.) AB határozat |
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Date of Text (Adopted) |
9 April 2019 |
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Type of text |
Decision of the Constitutional Court of Hungary / AB határozat |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
Article B (1) (Rule of Law principle) Article 4 (1) (free mandate) Article 5 (2), (5) and (7) (rules of parliamentary procedure) The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf |
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Subject area |
Administrative judiciary, labour law, parliamentary legislative process |
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Comment |
In autumn 2018, upon the initiative of the Hungarian government, the National Assembly adopted three controversial laws. The primary purpose of the Act no. CXVI of 2018 on temporary agency work (also called in the media as “Slavery Act”) was to make it possible for multinational companies to compel their employees to work hundreds of hours of overtime without full or immediate compensation. The other two laws (Act no. CXXX of 2018 on the administrative judiciary and Act no. CXXXI of 2018 on the entry into force of the act on administrative courts and certain transitional rules) aimed at the complete reorganization of the administrative judicial system. The introduction of these legislative measures in parliament sparked strong social disapproval, and thousands of anti-government demonstrators took to the streets. On the day of the final vote, opposition MPs physically blocked the Speaker’s podium inside the chamber and blew whistles for more than two hours in order to prevent the National Assembly from enacting the laws. Despite the chaotic circumstances created in the hemicycle, the governing majority proceeded to the final vote. Opposition parties filed a petition with the Constitutional Court, challenging the laws on both procedural and substantive grounds. The Court separated the two types of issues and delivered its Decision no. 15/2019 (IV. 17) on the constitutionality of the parliamentary enactment. The petitioners based their request on three grounds. Firstly, they submitted that the President of the chamber (one of the deputy Speakers) acted unconstitutionally when he decided to chair the Parliamentary session from the benches instead of the Speaker’s podium. Secondly, the petitioners argued that the chamber president had been assisted by two notaries from the parties of the governing majority, contrary to the Act on the National Assembly stipulating that one of them shall be selected from an opposition PPG. Finally, the laws were challenged on the ground that the MPs had been able to cast a vote without inserting their card into the voting machine, which had potentially led to the manipulation of the results. Eventually, the petitioners’ arguments were rejected on every ground. The Constitutional Court found that the parliamentary legislative process was in accordance with the Fundamental Law of Hungary. |
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Secondary sources/ doctrinal works (if any) |
Kazai, Viktor Z.: Administrative Judicial Reform in Hungary: Who Gives a Fig about Parliamentary Process?, VerfBlog, 2019/5/01, https://verfassungsblog.de/administrative-judicial-reform-in-hungary-who-gives-a-fig-about-parliamentary-process/ |
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Available Text |
http://public.mkab.hu/dev/dontesek.nsf/0/889BBCD5E0948C29C1258399005F8CC1?OpenDocument |
4.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 18/2019 (VI. 12.) of the Constitutional Court of Hungary / 18/2019 (VI. 12.) AB határozat |
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Date of Text (Adopted) |
28 May 2019 |
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Type of text |
Decision of the Constitutional Court of Hungary / AB határozat |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
Article XXVIII (1) (right to a fair trial) The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf |
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Subject area |
Political campaign, electoral procedure, right to a fair trial |
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Comment |
Activists of the opposition party, Momentum Movement (hereinafter: Momentum) filed a complaint with the National Election Committee alleging the violation of electoral rules committed by activists of the Fidesz-KDNP coalition parties (parties in government, hereinafter: Fidesz-KDNP). Based on a video recording, Momentum argued that Fidesz-KDNP activists provided false information to voters by creating the impression that they were collecting signatures for the European parliamentary elections, while in fact the sheet that people were actually asked to sign was meant to seek support for PM Viktor Orbán’s political program. Both the National Election Committee and the Budapest-Capital Election Committee (as appellate organ) rejected the complaint. The Supreme Court (Kúria), upon the petition of Momentum, found a violation of the electoral rules in its decision Kvk.II.37.515/2019/2. The Fidesz-KDNP initiated a constitutional complaint procedure. In its Decision no. 16/2019. (V. 14.) Constitutional Court annulled the judgment of the Supreme Court. The Constitutional Court was of the opinion that the Supreme Court adopted an unreasonably broad and therefore arbitrary interpretation of the electoral rules. The justices stated that electoral rules did not prohibit the collection of signatures in the campaign period for purposes other than seeking support for candidates. After the repeated procedure, the Supreme Court modified the holding of its original judgment and – in line with the Constitutional Court’s decision – found no violation of the electoral rules in its decision Kvk.II.37.628/2019/4. However, the Supreme Court noted that the reasoning of its original judgment was misinterpreted by the Constitutional Court, therefore that part of its decision was left mainly untouched. Consequently, a contradiction arose between the holding and the reasoning of the Supreme Court’s second judgment. This time it was Momentum who initiated a constitutional complaint procedure before the Constitutional Court. In its Decision no. 18/2019. (VI. 12.), the Constitutional Court annulled the judgment of the Supreme Court. The justices argued that the Supreme Court failed to comply with its obligation to provide an adequate reasoning when it created a contradiction between the holding and the reasoning of its judgment and thus violated the right to a fair trial. The justices added that the Supreme Court did not have the right to criticize the decisions of the Constitutional Court. The unfair campaign practices of the Fidesz-KDNP governing coalition have been the subject of criticism and debate ever since the entry into force of the new electoral regulation in 2012. The 2018 parliamentary elections were monitored by the OSCE-ODIHR. |
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Secondary sources/ doctrinal works (if any) |
Szilágyi, Emese: Public Money in Political Campaigns. An Analysis on Hungarian State Propaganda, jtiblog, 2018/11/19, https://jog.tk.mta.hu/blog/2018/11/public-money-in-political-campaigns |
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Available Text |
http://public.mkab.hu/dev/dontesek.nsf/0/9B9111DF6CF63839C125840000505FAC?OpenDocument |
5.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 19/2019. (VI. 18.) of the Constitutional Court of Hungary / 19/2019. (VI. 18.) AB határozat |
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Date of Text (Adopted) |
4 June 2019 |
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Type of text |
Decision of the Constitutional Court of Hungary / AB határozat |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
National Avowal (preamble) Article B (1) (Rule of Law principle) Article Q (2) (obligation to guarantee the harmony between domestic law and international law) Article R (3) (rules of constitutional interpretation) Article I (general fundamental rights protection clause) Article II (human dignity) Article II (prohibition of torture and inhuman or degrading treatment) Article IV (right to liberty and security) Article XV (prohibition of discrimination) Article XIX (principle of social security) Article XXII (state obligation to provide adequate housing, prohibition of living in public spaces as habitual dwelling) Article XXVIII (1) (right to free movement) Article XXVIII (1) (right to a fair trial) Article XXVIII (7) (right to an effective remedy) The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf |
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Subject area |
Homelessness, positive obligation of the state, social security |
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Comment |
In the summer of 2018, the Fidesz-KDNP governing majority amended the Fundamental Law of Hungary. Article XXII – as modified by the Seventh Amendment – provides that living in public places on a permanent basis is prohibited, thereby providing a clear constitutional basis for the criminalization of homelessness. Shortly after that the National Assembly inserted a new 178/B section in the Act on Misdemeanors making the act of “residing in public spaces as habitual dwelling” a petty offence punishable by community service work or confinement. This legislative measure was fiercely criticized by Hungarian NGOs (such as the Hungarian Civil Liberties Union, the Hungarian Helsinki Committee or the City is for All), and by international organizations as well. For example, Ms. Leilani Farha, the UN Special Rapporteur on adequate housing, called the amendment “absolutely unacceptable”. When the first proceedings were initiated against homeless people in autumn 2018, several ordinary courts suspended their proceedings and requested the Constitutional Court to annul the legislation. Amici curiae were submitted to the Constitutional Court by the UN Special Rapporteur on adequate housing, two former justices of the Constitutional Court (Miklós Lévay and László Kiss), and three human rights NGOs, namely the Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Streetlawyers’ Association. In its Decision no. 19/2019. (VI. 18.), Constitutional Court rejected all the petitions submitted by the ordinary courts on every single ground and thus concluded that section 178/B of the Act on Misdemeanors was in conformity with the Fundamental Law. |
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Secondary sources/ doctrinal works (if any) |
Kazai, Viktor Z.: Guilty of Homelessness – The Resurgence of Penal Populism in Hungary, VerfBlog, 2018/10/31, https://verfassungsblog.de/guilty-of-homelessness-the-resurgence-of-penal-populism-in-hungary/ Chronowski, Nóra; Halmai, Gábor: Human Dignity for Good Hungarians Only: The Constitutional Court’s Decision on the Criminalization of Homelessness, VerfBlog, 2019/6/11, https://verfassungsblog.de/human-dignity-for-good-hungarians-only/ Kazai, Viktor Z.: „No one has the right to be homeless…”, VerfBlog, 2019/6/13, https://verfassungsblog.de/no-one-has-the-right-to-be-homeless/ |
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Available Text |
http://public.mkab.hu/dev/dontesek.nsf/0/2BA8668E09472DB8C1258337004BC40A?OpenDocument |
6.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision no. 22/2019. (VII. 5.) of the Constitutional Court of Hungary / 22/2019. (VII. 5.) AB határozat |
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Date of Text (Adopted) |
18 June 2019 |
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Type of text |
Decision of the Constitutional Court of Hungary / AB határozat |
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Enacted by |
Constitutional Court of Hungary |
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Reference to the Constitution (art) |
Article B (1) (Rule of Law principle) Article C (1) (Separation of Powers principle) Article N (principle of balanced, transparent and sustainable budget) Article T (supremacy of the Fundamental Law) Article XXVIII (1) (right to a fair trial) Article 15 (1) and (2) (constitutional mandate of the government) Article 25 (5) (role and competence of the National Office for the Judiciary) Article 26 (1) (judicial autonomy and independence) The English version of the Fundamental Law is available at: https://hunconcourt.hu/uploads/sites/3/2018/11/thefundamentallawofhungary_20181015_fin.pdf |
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Subject area |
organization of the judiciary, administrative court system, judicial independence |
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Comment |
In late autumn 2018, upon the legislative initiative of the Hungarian government, the National Assembly adopted two laws aiming at the radical reorganization of the administrative judiciary, namely the Act no. CXXX of 2018 on the administrative judiciary and the Act no. CXXXI of 2018 on the entry into force of the act on administrative courts and certain transitional rules. The reform plans sparked strong criticism by scholars, human rights NGOs and international monitoring bodies as reported in a previous contribution related to Act no XXIV of 2019 on additional guarantees of the independence of administrative courts. Opposition parties filed a petition with the Constitutional Court, challenging the laws on both procedural and substantive grounds. The Court separated the two types of issues and in its Decision no. 15/2019 (IV. 17) it found the parliamentary legislative process in conformity with the Fundamental Law. Decision no. 22/2019. (VII. 5.) was about the substantive constitutional issues. The unconstitutionality of the challenged laws was based on three grounds, but all of them were rejected by the Court. Firstly, the justices concluded that the constitutional requirement to provide enough time to get prepared for the application of the new legislation was not violated. Secondly, the Court was of the opinion that the judicial reform was not in conflict with the Separation of Powers principle. Finally, the justices found the allegation of unconstitutionality on the basis of violation of the principle of judicial independence unfounded. The essence of the allegations of unconstitutionality concerned the increased influence of the minister of justice over the recruitment of administrative judges and the lack of sufficient autonomy of the judiciary to protect itself from undue political pressure. The Constitutional Court, however, did not find any reason to strike the laws down. It needs to be noted that early July the Fidesz-KDNP governing coalition, due to strong pressure exerted by European monitoring bodies, repealed Act no. CXXXI of 2018. In practical terms, it means that the entry into force of the administrative court reform laws was postponed for an indefinite period of time. For further information, see the contribution related to Act no. LXI of 2019 on the postponement of the entry into force of the Act on administrative courts. |
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Available Text |
http://public.mkab.hu/dev/dontesek.nsf/0/1FFF3A097A029452C1258398005F4EA2?OpenDocument |
7.
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2019 |
Osservatorio sulle fonti / Observatory on Sources of Law ---------------------------------------------------------------------------- Section: Sources of Law in the EU member States HUNGARY By Viktor Zoltán Kazai, Central European University, Budapest |
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Name of the Act/s |
Decision of the European Court of Human Rights in the case of Szalontay v. Hungary, Appl. no. 71327/13 |
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Date of Text (Adopted) |
12 March 2019 |
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Type of text |
Decision of the European Court of Human Rights |
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Enacted by |
European Court of Human Rights |
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Subject area |
constitutional complaint, effective remedy, European Convention on Human Rights |
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Comment |
The European Court of Human Rights (ECtHR) unanimously declared the application of Mr. Szalontay inadmissible on the basis that a successful constitutional complaint under sections 26(1) and 27 of the Constitutional Court Act, or under section 27 alone, would have been capable of righting the alleged grievance. Therefore, the applicant did not exhaust all the domestic remedies. The Court’s decision is a development of its case-law on the effectiveness of constitutional complaints in Hungary after the enactment of the Fundamental Law and the Constitutional Court Act in 2012. That the constitutional complaint could be considered as an effective remedy remains controversial among academics and practicing lawyers. |
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Secondary sources/ doctrinal works (if any) |
Karsai, Dániel: Extremist view on subsidiarity and on exhaustion of domestic remedies? Criticism of the decision Szalontay v. Hungary, Strasbourgobservers, 2019/5/22, https://strasbourgobservers.com/2019/05/22/extremist-view-on-subsidiarity-and-on-exhaustion-of-domestic-remedies-criticism-of-the-decision-szalontay-v-hungary/#more-4351 |
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Available Text |