Statistical data

Number of decisions:

I.

Identification: a) Hungary / b) Constitutional Court / с) / d) / e) Decision No. 1 /1994. (I. 7.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 2 /1994.

Keywords of the systematic thesaurus:

Institutions - Courts - Ordinary courts - Public prosecutor.

Keywords of the alphabetical index: Public prosecutor.

Summary:

Act No. 3 of 1952 on Civil Procedure, as well as Act No. 5 of 1972, contained a regulation under which a public prosecutor could institute proceedings if the person entitled to do so (obligee) was not able to defend his rights or in order to defend important government or social interests. The public prosecutor could also intervene at any stage of the process in the interest of legality. The public prosecutor had rights identical with those of the parties.

The basic role of a public prosecutor in the Hungarian legal system is the prosecution of conduct which violates or endangers the constitutional order and the security and sovereignty of the country. The Constitution also entitles the Prosecutor's Office to take measures for the protection of legality. The intervention of a public prosecutor in civil proceedings is not unknown in Hungarian legal history, though limited to a few cases. It was socialist civil procedural law that entrusted public prosecutors with the function of a "general safeguard of legality".

The Constitutional Court found that the general and unlimited right of the public prosecutor to institute civil proceedings violates the autonomy and the right of the parties to self-determination. It belongs to the individual's autonomy to decide whether to initiate civil proceedings or not. Thus the general right of the public prosecutor to intervene in civil proceedings violates the principle of the rule of law, the right to human dignity, and, indirectly, the constitutional provisions regarding judicial procedure. Therefore, the Court declared the respective regulations to be unconstitutional.

II

Identification: a) Hungary / b) Constitutional Court / с) / d) / e) Decision No. 2 /1994. (I. 14.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 4 /1994.

Keywords of the systematic thesaurus:

Constitutional Justice - Constitutional proceedings -Types of claim - Claim by a public body - Legislative bodies.
Constitutional Justice - Constitutional proceedings -Decisions - Effects - Temporal effect - Limit on retrospective effect.
Fundamental Rights - Civil and political rights - Non-retrospective effect of law - Non-retrospective effect of criminal law.
Sources of constitutional law - Categories - Written rules - Other international sources.

Keywords of the alphabetical index: Non-retroactivity of criminal laws / War crimes / Crimes against humanity.

Summary:

The legal regulation subject to judicial review in this case forms a peculiar part of the Hungarian legal system. The armistice agreement between Hungary and the allied powers was signed in Moscow on 20 January 1945. On 25 January 1945, the Provisional Hungarian Government issued a decree on the establishment of the so-called People's Courts. The decree, and its subsequent amendment, was promulgated as a Law on 16 September 1945 by Act No. 7 of 1945. The task of the People's Courts was to adjudicate upon war crimes. They were abolished in 1950, but several provisions of the relevant regulation remained in force. After the transition, a Standing Committee of the Hungarian Parliament and a Member of Parliament challenged the constitutionality of the regulations still in force.

The Constitutional Court, in the above-mentioned decision, declared several provisions of the Law on People's Courts to be unconstitutional (namely Section 11, points 1-4, б, and Section 13, points 1,3-7). According to the Court, these provisions constitute retroactive criminal legislation, violating the principle of nullum crimen sine lege and nulla poena sine lege. The prohibition of retroactive penal legislation had already been emphasised in a former decision of the Constitutional Court (No. 11/1992. (III.5.) AB) which stressed that conviction and punishment can only proceed pursuant to a law that was in effect at the time when the offence was committed. The reasoning underlines that the remaining provisions of the Law on People's Courts constitute criminal legislation with retroactive effect. The Court also emphasised that, following the Second World War, Hungary entered into international obligations to prosecute war criminals and that the realisation of this obligation by retroactive punishment was the sovereign decision of the Hungarian State. The behaviour now considered criminal under the invalidated provisions of the Law on People’s Courts does not constitute war crimes or crimes against humanity according to international law (as defined in the Statute of the Nurnberg International Military Tribunal).

The decision of the Constitutional Court does not affect sentences delivered with final effect before 23 October 1989. In a former decision (No. 10/ 1992. (II.25.) AB) the Court had elaborated its philosophy on the effects of its decisions on particular penal sentences. The Court emphasised the importance of the certainty and predictability of the law. The consequences of the unconstitutionality of a law must primarily be evaluated by reference to its impact on legal certainty. This became the guiding principle for determining the temporal effects of a decision declaring a law unconstitutional, and especially its repercussions on particular legal relationships and sentences arising from it. The Constitutional Court cannot declare a law to be materially unconstitutional during the period before the promulgation of the new Constitution. Similarly, the Constitutional Court concluded that it is not reasonable to annul sentences delivered before the enactment of the new Constitution. Since the classic principles of criminal law became part of the Hungarian Constitution on 23 October 1989, the provisions of the Law on People's Courts became unconstitutional only on that day. The Constitutional Court, taking into consideration the fundamental principle of legal certainty, ordered the review only of sentences delivered subsequent to the promugation of the new Constitution. The Constitutional Court's judgment does not examine the merits of other sentences based on the unconstitutional provisions of the Law on People's Courts.

III.

Identification: a) Hungary / b) Constitutional Court / с) / d) / e) Decision No. 16/1994. (III. 25.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 32/1994.

Keywords of the systematic thesaurus:

Fundamental Rights - Civil and political rights - Electoral rights.

Keywords of the alphabetical index: Elections / Eligibility.

Summary:

Act. №3 of 1994 amended Act.№34 of 1989 on the election of parliamentary representatives, adding a provision to the law providing that elected representatives of self-governing social security bodies cannot be candidates in parliamentary elections. (In the so-called self-governing social security bodies, representatives elected by the people in national elections control the work of the social security administration). The Constitution states that all adult Hungarian citizens having their regular domicile in Hungary shall have the right to be elected in elections for Parliament. The right to vote and the right to be elected are fundamental rights guaranteed by the Constitution.

The Constitution regulates the incompatibility of parliamentary representatives. Ordinary laws determine other cases of incompatibility. Thus the law on self-governing social security bodies lists further cases of incompatibility, among them that members of self-governing social security bodies cannot be parliamentary representatives. These rules of incompatibility do not constitute a restriction on the eligibility of social security representatives. An elected member of Parliament has the possibility to discontinue the cause of incompatibility within thirty days. Any prohibition on the right to be elected which is not enumerated in the Constitution is unconstitutional.

IV.

Identification: a) Hungary / b) Constitutional Court / с) / d) / e) Decision No. 17/1994. (III.29.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 33/1994.

Keywords of the systematic thesaurus:

Institutions - Principles of State organisation - Separation of powers.
Institutions - Courts - Procedural safeguards - Other.

Keywords of the alphabetical index: Ombudsman / Judiciary / Separation of powers.

Summary:

The statutory provisions regulating the jurisdiction of the Ombudsman do not allow the investigation by him of the functioning of the courts. The Constitutional Court has already emphasized several times the importance of judicial independence, especially the stability and neutrality of the judiciary. The role of the Ombudsman is to guarantee, through the control of the administration, the realisation of rule of law and the protection of individual rights. There is only a limited possibility of abusing judicial power in civil law countries. The independent judiciary is constitutionally protected against external influence. Therefore the regulation, declining to confer on the Ombudsman any power of control over the judiciary, is in conformity with the principles of the separation of powers and judicial independence. Although in Sweden, and in a few countries following the Swedish model, the Ombudsman has certain powers to control the judiciary, most countries rejected the original Swedish solution, and have implemented regulations similar to those existing in Hungarian law.

V.

Identification: a) Hungary / b) Constitutional Court / c) / d) / e) Decision No. 18/1994. (III. 31.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 34/1994.

Keywords of the systematic thesaurus:

Institutions - Principles of State organisation - Relations between the State and bodies of a religious or ideological nature.
Fundamental Rights - Economic, social and cultural rights - Freedom to teach.
Fundamental Rights - Economic, social and cultural rights - Right to be taught.

Keywords of the alphabetical index: Public and denominational schools / Educational system / Freedom of conscience and creed / Neutrality of the State.

Summary:

The new Law on public education (enacted in 1993) pursues the objective of institutionally separating State-run public schools and denominational schools. Public schools shall not be committed to any denomination. The State and local governments may only establish neutral schools. However, during a transition period of five years the State or the local government may maintain already functioning religious classes or schools. These regulations are in conformity with the Constitution which provides for a separation between the State and the church.

Supplementary information:

The decision was based on the reasoning contained in a former case (Decision No. 4/1993.).
One judge wrote a concurring opinion.

VI.

Identification: a) Hungary / b) Constitutional Court / c) / d) / e) Decision No. 20/1994. (III. 31.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 40/1994.

Keywords of the systematic thesaurus:

Fundamental Rights - Civil and political rights - Right to respect for one's honour and reputation.
Fundamental Rights - Civil and political rights - Right to private life.

Keywords of the alphabetical index: Privacy / Execution of judicial decisions.

Summary:

Under the Hungarian Law on the Execution of Judicial Decisions, courts, on a claim by a judgment creditor, may issue an order obliging an employer to withdraw from the salary of a judgment debtor the sum corresponding to the allowance for the maintenance of children. A split court with a majority of 5 judges against 4 decided that the provision does not violate the right to respect for one's honour and human dignity, but serves the constitutionally guaranteed protection of children.

Supplementary information: One judge wrote a separate opinion, joined by three other judges.

VII.

Identification: a) Hungary / b) Constitutional Court / с) / d) / e) ; Decision No. 21/1994. (IV. 16.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 40/1994.

Keywords of the systematic thesaurus:

Fundamental Rights - Economic, social and cultural rights - Commercial and industrial freedom.
Fundamental Rights - Economic, social and cultural rights - Freedom to choose one's profession.

Keywords of the alphabetical index: Freedom of competition / Market economy.

Summary

A provision of the Act on Public Road Traffic enables local governments to limit the number of taxi-cabs. This “numerus clausus” of taxi-cab licences was challenger as unconstitutional. The consistent interpretation of the Constitutional Court is that the etablishment of a market economy is a goal set by the Constitution. A free market can only be limited by State intervention for the sake of the protection of fundamental rights. On the other hand, the limitetion of market freedoms may be unconstitutional if it violates fundamental rights. The right of free enterprise is a fundamental right under the Hungarian Constitution. The regulation enabling the limitation of the number of taxi-cabs is unconstitutional because it constitutes an unnecessary and disproportionate limitation of the right to choose one's profession. State intervention aiming at regulating competition and elevating the quality of services does not constitute a constitutionally proper limitation of the right of free enterprise. Local governments may not limit fundamental rights in order to simplify their administrative tasks. Furthermore, the unconditional power of local governments to regulate the number of taxicabs is unconstitutional because substantial limitations of fundamental rights may only be authorised by parliamentary statute.

In the same decision, the Constitutional Court approved the constitutionality of provisions regulating the conditions necessary to attain a cab license.

Supplementary information : One judge, joined by another, wrote a concurring opinion.

VIII.

Identification: a) Hungary / b) Constitutional Court / c) / d) / e) Decision No. 22/1994. (IV. 16.) AB hatarozat / f) / g) Magyar Kozlony (Official Gazette) No. 40/1994.

Keywords of the systematic thesaurus:

Fundamental Rights - Civil and political rights - Freedom of association.

Keywords of tile alphabetical index: Equality / Public body.

Summary:

Obligatory membership of a professional association (in this case the bar association) violates neither freedom of association, nor the principle of equality. The bar is a public body under Hungarian law which guarantees the professionalism and independence of private attorneys. The ruling of the Court is in accordance with the judgment of the European Court of Human Rights (Le Compte, Van Leuven and De Meyere case, judgment of 23 June 1981).