Reference period: 1 January 1995 - 30 April 1995

Statistical data: Number of decisions
• Decisions by the plenary published in the Official Gazette:10
• Decisions by chambers published in the Official Gazette:14
• Number of other decisions by the plenary: 15
• Number of other decisions by chambers: 15
• Number of other (procedural) orders: 32
• Total number of decisions: 86

Important decisions

Identification: HUN-95-1-001
a) Hungary / b) Constitutional Court / с) / d) 08.02.1995 / e) 1/1995.(I1.8.) AB hatarozat/ f) / g) Magyar Kozlony (Official Gazette) no. 10/1995 / h).

Keywords of the systematic thesaurus:
Constitutional justice - Effects - Temporal effect -Postponement of temporal effect.
Fundamental rights - Civil and political rights -Equality.

Keywords of the alphabetical index: Compensation for past injustices / Dignity.

Headnotes:
The Constitution requires that, when regulating the question of compensation for those wrongfully deprived of their life and liberty for political reasons, the law should specify the group of persons entitled to such compensation, respecting the equal dignity of each person.

Summary:
Act 32 of 1992 regulated the question of compensation for those wrongfully deprived of their life and liberty due to political reasons. Several petitioners challenged the law, especially because they claimed that the law specified in an arbitrary and discriminatory way those who were entitled to compensation.
The present case differed from all previous compensation cases introduced before the Court because it did not concern compensation for property losses or material damage, but compensation for personal injury. The issue was complicated further because the violations in question occurred under different political regimes. On a very broad generalisation, one previous regime perpetrated these violations on the ground of racism and nationalism, while the next regime followed mostly ideological and political motives. A further difficulty lies in the question how deprivation of life and liberty could be measured in money.
The Constitutional Court declared that this type of compensation is not based on a legal obligation emanating from the time before the transition; the Government compensates according to equity, thus nobody has a subjective right to compensation. Therefore, the Constitutional Court upheld the constitutionality of the general principles of the compensation process, including the fact that the legislature passes different compensation laws periodically. However, the Court revealed an omission on the part of the government and the legislature. The law provided for an additional legislative act that would cover those persons who did not fall under the previous law, and this obliged the government to present the draft as early as in 1992. The government did not comply with this obligation, thus creating an unconstitutional discrimination to the detriment of those who did not fall within the compensation law. The main concern of the petitioners was that the law restricted the possibility of compensation to those whose rights were arbitrarily violated in connection with a formal criminal procedure. Such a provision excluded from compensation those who were killed by Hungarian authorities without any formal judicial procedure (e.g. shot, or killed in forced labour camps). In order to redress this omission, the Court obliged the legislature to pass a further compensation law before the end of September 1995.
The Constitutional Court declared unconstitutional and annulled some specific provisions of the law. The law originally considered deportation as a mere form of deprivation of liberty. According to the Court, deportation during the Second World War meant far more, being an expulsion from the country by force, when Hungarian authorities, on racial, religious or political grounds, handed their own citizens to foreign authorities, who carried them off to concentration camps. Leaving these historical circumstances out of consideration violates the constitutional requirement of treating everybody with equal dignity. Deported people form a clearly defined specific group that the legislature has to respect. Therefore, the provisions whereby deportation to Germany and to the Soviet Union were regarded as mere deprivation of liberty were declared unconstitutional.
Another provision of the law differentiated between people compelled to undergo forced labour service -a form of unarmed military service for those pursued by the regime during the Second World War. The criterion for the difference in treatment was whether the forced labour camps belonged to combat force units or not. The Constitutional Court held arbitrary, and thus unconstitutional, the discrimination between those who had served in combat and in non-combat forces, because those belonging to non-combat forces were compelled to live in closed camps and were deprived of their liberty.
The remaining provisions challenged by the petitioners were upheld by the Court.
Supplementary information:
The Constitutional Court had previously examined various questions on compensation for past injustices in six cases. In the present case, despite the abovementioned differences, the Court confirmed the principles laid down in its earlier judgments, e.g. the treatment of persons with equal dignity.

 Languages: Hungarian.

Identification: HUN-95-1-002
a) Hungary / b) Constitutional Court / с) / d) 13.03.1995 / e) 14/1995.(lll.13.) AB hatarozat I f) / g) Magyar Kozlony (Official Gazette) no. 20/1995 / h).

Keywords of the systematic thesaurus:
Constitutional justice - Decisions - Types -Suspension.
Fundamental rights - Civil and political rights -Equality - Criteria of distinction - Gender.
Fundamental rights - Civil and political rights – Right to family life.

Keywords of the alphabetical index: Homosexual partnership / Marriage.

 Headnotes:
Not allowing marriage between persons of the same sex does not amount to negative discrimination on the basis of sex. However, the enduring union of two persons may realise such values that it can claim legal acknowledgement irrespective of the sex of those living together. Therefore, the fact that respective legal regulations acknowledge only those partnerships outside marriage where a man and a woman live together in the same household and form an emotional and economic union, is contrary to the Constitution.

Summary:
The petitioner requested the constitutional review of Article 10.1 of Law IV of 1952 on Marriage, Family and Guardianship, according to which "men and women of legal age may get married". The petitioner also requested the review of Article 578/G of Law IV of 1959 on the Civil Code regulating the financial relations of those living in the same household and defining the notion of partners in a domestic partnership as "a woman and a man living together in the same household who form an emotional and economic community outside a marriage". In the petitioner's opinion, the two legal regulations in question negatively discriminate on the basis of sex by making it impossible for persons of the same sex to get married and by not acknowledging their domestic partnership.
In its proceedings, the Constitutional Court began with the idea that both in Hungarian culture and law, the institution of marriage is traditionally the union of a man and a woman. The ability to procreate and give birth to children is neither the defining element nor the condition of the notion of marriage, but the idea that marriage requires the partners to be of different sexes is a condition that derives from the original and typical designation of marriage. The institution of marriage is constitutionally protected by the State with respect also to the fact that it promotes the establishment of families with common children. This is the reason why Article 15 of the Constitution mentions the two subjects of protection together: "The Hungarian Republic protects the institutions of marriage and the family."
Equality between man and woman has a meaning if we acknowledge the natural differences between man and woman, and equality is realised with respect to this. The Constitution only poses the requirement of equal regulation of the conditions of marriage between persons of different sexes, which excludes the legal possibility of marriage between persons of the same sex. On the basis of the above, the Constitutional Court has reached the conclusion that the challenged regulation does not discriminate either in terms of sex or in terms of other conditions, and thus does not violate Article 70/A of the Constitution.
The challenged regulation cannot be related to Article 66.1 of the Constitution, since the regulation has no reference to the equality of men and women. The regulation in the law on family rights denying marriage to persons of the same sex prohibits men and women equally from marrying persons of their own sex.
As regards partnerships outside marriage, the sole legal definition of domestic partnership can be found in Article 578/G.1 of the Civil Code. According to this definition, "the partners in a domestic partnership are a man and a woman living together in a common household and in an emotional and economic community, outside a marriage". It is a fact that domestic partnership exists typically between men and women and this is also what public opinion understands by this notion. But the legal acknowledgement of domestic partnership has an incomparably shorter history than that of marriage. Judicial practice began to ack-nowledge domestic partnerships in the 1950s and such partnerships were incorporated into important regula-tions only between 1961 and 1977. The cohabitation of persons of the same sex, which in all respects is very similar to the cohabitation of partners in a domestic partnership - involving a common household, as well as an emotional, economic and sexual relation-ship, and taking on all aspects of the relationship against third persons - brings up today, albeit to a lesser extent, the same necessity for legal ack-nowledgement just as in the fifties for those in a domestic partnership.
The sex of partners and relatives can, of course, be significant when the regulation concerns a common child or concerns a marriage with another person. However, where these considerations do not apply, the exclusion from domestic partnerships of persons of the same sex living in a common household and in an emotional and economic union, is arbitrary and thus violates human dignity.
The legally effective notion of partners in a domestic partnership is defined by the Civil Code. The con-stitutionality of this cannot be determined on its own, but depends on whether the distribution of rights and duties among those who are in the same situation is done in a manner that respects the right to equal human dignity, that is, permitting equal treatment of persons and evaluating their points of view with like circumspection, attention, impartiality and fairness. The legislator can create a situation that is in harmony with the Constitution while leaving untouched the legal notion of domestic partnership that is in effect now. Thus the Constitutional Court did not decide on the constitutionality of the definition in Article 578/G.1 of the Civil Code, but instead suspended its proceedings until 1 March 1996.

Languages: Hungarian.