Constitutional Court
Statistical data: 1 May 1996 - 31 August 1996
Number of decisions taken:
• Decisions by the plenary Court published in the Official Gazette:
5
• Decisions by chambers published in the Official Gazette: 11
• Number of other decisions by the plenary Court: 10
• Number of other decisions by chambers: 5
• Number of other (procedural) orders: 11
• Total number of decisions: 42
Note:
The Constitutional Court of the Republic of Hungary hosted the 10th
Conference of the European Constitution-al Courts between 6 and 9 May 1996.
The opening speech of Laszlo Solyom, President of the Hungarian Constitutional
Court, on the subject of cooperation between constitutional courts, was
published in the previous issue of the Bulletin. At the conference two
topics were discussed. On the first day, the general report on "Freedom
of expression in the jurisprudence of constitutional courts with special
regard to regulations on the electronic media" was presented and discussed
(the general report was prepared by Antal Adam, Judge of the Constitutional
Court, and Gabor Halmai, Chief Counsellor to the Court). On the second
day, the general report on "Separation of powers regarding the constitutional
court's jurisdiction" was discussed (prepared by Peter Paczolay, chief
counsellor of the Constitutional Court).
Important decisions
Identification: HUN-96-2-005
a) Hungary / b) Constitutional Court / ñ) / d) 17.05.1996 / e) 21 /1996
/ f) / g) Magyar Kozlony (Official Gazette), no. 39/1996/h).
Keywords of the systematic thesaurus:
Sources of Constitutional Law - Categories – Written rules -
Convention on the rights of the Child.
General Principles - Proportionality.
Fundamental Rights - General questions – Entitlement to rights
- Natural persons - Minors.
Fundamental Rights - Civil and political rights -torn of association.
Fundamental Rights - Civil and political rights - Rights of
the child.
Keywords of the alphabetical index:
Child, right to protection / Homosexual associations, participation
of minors.
Headnotes:
The right of the child to be provided by the State with such protection
and care as is necessary for one's proper physical, mental and moral development
(Article 67.1 of the Constitution) establishes the constitutional duty
on the State to protect the development of the child. This duty of the
State serves as a constitutional basis for the legislature or for the courts
to restrict - primarily in the public sphere - the child in the exercise
of his/her fundamental rights, including the right of association guaranteed
in Article 63 of the Constitution.
On the basis of the above, the child's membership in associations "related
to homosexuality" can be excluded or restricted by law or in court decisions.
The actual restriction on the child's exercise of his/her right of association
must correspond to the concrete risk of endangering the development of
the child. In the course of considering whether the right of the child
to protection for his/her development may lead to a restriction on his/her
right of association, the age of the child and the nature of the association
has to be evaluated together. It is also important to note whether the
child is able to know and evaluate the choices in connection with his/her
relationship to homosexuality and the consequences of his/her choice for
his/her own personality, later life and social adaptation.
Summary:
President of the Supreme Court petitioned the Constitutional Court,
in the framework of abstract connstitutional interpretation, to examine
the fundamental rights worded in Article 67 and Article 63.1 of the Constitution.
The petitioner found it to be a "concrete constitutional problem" that
"the right of the child to be provided by the State with such protection
and care as is necessary for one's proper physical, mental and moral development
(Article 67 of the Constitution) conflicts with his/her right of association
(Article 63.1 of the Constitu-tion) if the question arises about the child's
membership in an association which presents itself as an association for
the defence of rights of homosexual persons as a social group".
From the point of view of the right of association guaranteed in Article
63 of the Constitution, it had to be made clear that the question in this
case was not about the constitutionality of an associative aim but about
the restriction on the right of association in the interests of the child
(Article 67 of the Constitution). That is, the present case was not concerned
with the matter of constitutionally qualifying associations of homosexual
persons.
Judges are required to refuse to register social associations if their
aims do not comply with conditions set forth in the Act on Associations.
Among other prohibitions, they cannot result in the violation of the rights
and liberties of others. This latter condition is included in Article 15
of the New York Treaty on the Rights of Children -promulgated in Act 64
of 1991 - which declares that the signatory States recognise the child's
right of association.
Restricting the right of association in the interests of protecting
against the violation "others' rights and liberties" is constitutional
if this restriction is necessary to protect the other right and if the
extent of restriction is proportionate to the desired aim. This other right
has to be a constitutional right or has to be capable of being deduced
from such a right. The right of the child to protection and care necessary
for development excludes the child's membership in certain associations.
If, according to its statutes, children can be members in such an association
then the association must be held not to comply with Article 2 of the Act
on Associations since this would violate the right of children guaranteed
in Article 67 of the Constitution. The task of the Constitutional Court
in the present decision was to determine those features of homosexual associations
in respect of which the child's right to protection and care necessary
for development makes the restriction on the exercise of the right of association
necessary and proportionate.
Article 67 of the Constitution, which compels the State to provide
protection and care necessary for the personal development of the child,
requires on the one hand the prevention of clearly harmful effects and
on the other hand requires the avoidance of serious risks to the child's
personality and thus the whole of his/her future life.
The State has to protect the child from taking risks in respect of
which, because of his/her age (presumed to correlate with physical, mental,
moral and social maturity), he/she is not able to know and evaluate either
the possibilities or the consequences of his/her choices for his/her own
personality, later life and social adaptation. The State is thus bound
as part of its duty to avert risks and to prohibit the child - at least
in the public sphere - from pursuing activities or taking a stand in matters
in connection with which the child is not mature enough in the above sense
to develop a responsible position, since taking up a public position can
prove to be decisive for the child's physical, mental and moral development
and his/her later life. The risks involved are particularly increased if
such a public position is related to a question which has a controversial
standing in society.
The relationship between persons of the same sex -in its durable and
publicly assumed form and confined to certain aspects of life - was previously
recognised by the Constitutional Court, but not because the relationship
was homosexual, but because the relationship was such that similar cases
were elsewhere recognised by the law and the differentiation had no basis.
In the course of its only judgment on homosexuality to date, the Constitutional
Court remained on a neutral path, disregarding the evaluation of public
morals. This neutrality was possible also in the course of interpreting
the present case - in spite of the fact that the Constitution explicitly
gives a right to protect the proper physical, mental and moral development
of the child. There was no reason in the present case for the Constitutional
Court to focus on certain questions of sexual morals instead of the protection
of the child's personal development as a whole. What is more, in the present
case the Constitu-tional Court did not even consider the problem of homosexuality
to be a question of sexual morals -although it is generally regarded as
such in public opinion.
The Constitution protects primarily not that decision of the child
to become or not to become a homosexual, but rather assures that he/she
can decide with full knowledge on the possibilities and the consequences
and on how to relate to his/her discovered affections and on which role
to choose from among the many social possibilities. This interpretation
is in harmony with the meaning of Article 67 of the Constitution.
The Constitutional Court thus does not interpret the Constitution to
say that the possibility of becoming homosexual would endanger the "moral
development" of the child, because the Court cannot form a moral judgement
about homosexuality on the basis of the Constitution. But it is harmful
for the development of the whole personality (physical, mental, moral)
and decisively affects the future of the child if he/she starts on a certain
path because of the lack of maturity necessary for a decision about such
vital questions.
The Constitutional Court does not qualify homosexuality from a moral
point of view. In the present case, however, it cannot disregard either
the peculiarities of homosexuality or the current social situation of homosexuals.
Publicly assuming homosexuality, of any kind, is an existentially decisive
decision because of the current reception of homosexuality by society;
socially, much is assumed, and later any change is difficult. The Constitutional
Court does not qualify the problems of homosexuals in terms of social adaptation,
acceptance and discrimination - which homosexuals themselves feel and experience
to be more weighty than the objectively measurable social judgment - but
takes them into consideration as facts to be weighed in the decision of
the child.
It might prove helpful for a minor under 18 years of age struggling
with homosexuality if he/she can find company in a regular framework where
there are people of similar disposition and where he/she can receive psychological,
medical or legal counselling if need be.
But an association of adult, practising homosexuals, one which is a
part of the homosexual subculture, is different. In this context - completely
excluding the criminal law aspect - there is an increased possibility that
a minor whose homosexuality has not yet been fixed and who has not chosen
a role, excludes his/her possibilities by a premature decision.
An association fighting actively for the rights of homosexuals does
not allow for the possibility that a person might not differ completely
with the heterosexual world, that a person might choose to conceal his
or her sexuality or to live a "double" life as a bisexual. Membership of
children in such associations is the most problematic, since this constitutes
the most public commitment and thus provides hardly any possibility for
different roles.
Thus, such associations have to go along with the age limit in the
interest of minors of the age-group to be protected. Setting an age limit
for membership primarily protects the responsible and mature decision of
those who must accept the consequences of their decision for their entire
life.
Languages: Hungarian.
Identification: HUN-96-2-006
a) Hungary / b) Constitutional Court / ñ) / d) 25.06.1996 / e) 22/1996
/ f) / g) Magyar Kozlony (Official Gazette), no. 51/1996/h).
Keywords of the systematic thesaurus:
Constitutional Justice - Types of claim - Claim by a public
body - Legislative bodies.
Constitutional Justice - Types of claim - Type of review - Preliminary
review.
Fundamental Rights - Civil and political rights – Right to life.
Fundamental Rights - Civil and political rights - Equality.
Keywords of the alphabetical index: Compensation for past injustices / Dignity.
Headnotes:
It is unconstitutional if the amount of compensation for those deprived
of their life is substantially unequal for different groups of people.
In respect of compensation for similar grievances - in the present case
for the loss of life - equal standards should apply. However, slight differences
due to the historical shaping of the regulation can be accepted.
Summary:
The Constitutional Court adjudicated upon the constitutionality of
Act 32 of 1992 regulating the question of compensation for those wrongfully
deprived of their life and liberty due to political reasons in its decision
no. 1/1995. In that ruling, among other matters the Court had obliged the
legislature to add further provisions to the compensation law, mainly on
the grounds that the previous law restricted the possibility of compensation
to those whose rights were arbitrarily violated in connection with a formal
criminal procedure. In addition, the legislature had been obliged to replace
some other unconstitutional provisions in the law.
The legislature finalised the text of the bill amending the compensation
law, and before the final vote the Human Rights Standing Committee submitted
it to the Constitutional Court for preliminary review.
The Court, in an earlier decision (no. 16/1991), had defined the prerequisites
of a preliminary review. The preliminary review of any contestable provision
of a bill can be initiated by Parliament, by any one of its standing committees,
or by fifty Members of Parliament. The Court in 1991 declared that adjudicating
upon the con-stitutionality of provisions in a pending bill, the text of
which is not definitive, would mean the possibility of involving the Constitutional
Court in the every-day legislative process, which would be incompatible
with the principle of separation of powers.
In the present case, the legislature finalised the text of the bill
and excluded the possibility of any further changes. Thus the Court accepted
the demand for the preliminary review.
As to the merits of the case, the Court acknowledged that the legislature
redressed its former mistake by creating a new group of persons entitled
to compensation, specifically those persons deported either to Nazi Germany
or the Soviet Union, because deportation, as explained already in decision
no. 1/1995, is not merely a form of deprivation of liberty.
The Court, however, found it to be unconstitutional for the bill to
establish substantially different standards for similar grievances, namely
for the loss of life. Loss of life is so serious a grievance that it "absorbs"
all previous injustices. It would be arbitrary and at the same time would
violate human dignity to differentiate among the diverse ways of losing
life.
The Constitutional Court added that if as a result of this change the
legislature had to enlarge the range of persons entitled to compensation
(because of the above constitutional requirements), it would not be unconstitutional
to redistribute the overall budget allowed for such compensation, thus
reducing the amount of the original compensation for each individual.
Cross-references:
A previous decision on the constitutionality of the same Act was decision
1/1995 of 08.02.1995, Bulletin 95/1 [HUN-95-1-001].
Languages: Hungarian.