Statistical data: 1 January 1997 - 30 April 1997

Number of decisions:
• Decisions by the plenary Court published in the Official Gazette: 13
• Decisions by chambers published in the Official Gazette:17
• Number of other decisions by the plenary Court: 17
• Number of other decisions by chambers: 19
• Number of other (procedural) orders: 15
• Total number of decisions: 81

Note:
The plenary Court elected a new Secretary-General to the Constitutional Court on 18 November 1996. The new Secretary-General of the Court is Dr. Peter Paczolay, former Chief Counsellor to the Constitutional Court.

Important decisions

Identification: HUN-1997-1-001
a) Hungary / b) Constitutional Court / c) / d) 22.01.1997 / e) 4/1997 / f) / g) Magyar Kozlony (Official Gazette), no. 7/1997 / h).

Keywords of the systematic thesaurus:
Constitutional Justice - Types of claim - Type of review - Preliminary review.
Constitutional Justice - Types of claim - Type of review - Ex post facto review.
Constitutional Justice - The subject of review - International treaties.

Keywords of the alphabetical index:
International treaty, control by Constitutional Court / Ex post facto review / Constitutional Court, powers.

Headnotes:
According to Article 1 .b of the Act on the Constitutional Court, the Constitutional Court shall examine the constitutionality of the law promulgating an international treaty. The constitutional review shall cover the examina-tion of unconstitutionality of the international treaty promulgated by law. If the Constitutional Court holds that the international treaty or any provision of it is unconstitutional, it declares the unconstitutionality of the law promulgating the international treaty. The decision of the Constitutional Court in which the Court declares unconstitutional the whole international treaty or any provision thereof has no effect on the obligations assumed by the Republic of Hungary under international law.

Summary:
According to the petitioner, those provisions of the Act on the Constitutional Court (hereinafter "the Act) according to which the jurisdiction of the Court includes only the preliminary examination of the constitutionality of international treaties and does not make it possible for citizens to exercise their rights deriving from the Constitution concerning the provisions of international treaties within the framework of an ex post facto review are unconstitutional. It is also unconstitutional that the Constitutional Court is not entitled to proceed ex officio in case of such kind of ex post facto review.
In the petitioner's opinion, this inadequate regulation is contrary to the constitutional principle of a constitutional state as declared in Article 2 of the Constitution, since citizens cannot initiate the constitutional review of an international treaty prior to its ratification and because the Constitutional Court does not have any competence - within the framework of an ex officio procedure - to institute such proceedings.
According to the petitioner, it also derives from Article 7.1 of the Constitution that the Constitution stands above the provision of an international treaty promulgated by law.
The Constitutional Court found the petition unfounded and at the same time interpreted its jurisdiction regarding the examination of the unconstitutionality of international treaties based on the Constitution and the Act.
Infringing the right to conclude a treaty is a formal way of violating the Constitution which may be examined in all proceedings for which the Constitutional Court has the competence even after concluding the treaty, namely both during preliminary and ex post facto review of constitutionality. According to Article 32.A.3 of the Constitution, in certain cases determined by law anyone may initiate proceedings at the Constitutional Court. By historical interpretation of Article 32.A of the Constitution, it is clear that the legislator's intention was that the jurisdiction of the Constitutional Court should include actio popularis regarding ex post facto review of the constitutionality.
The argument of the petitioner is not adequate in relation to his claim that restricting the exercise of the right to initiate preliminary review of the unconstitutionality of international treaties is contrary to Article 8 of the Constitution. The right to initiate Constitutional Court proceedings is a basic constitutional right according to Article 32.A of the Constitution, and this Article does not include preliminary review. Neither does it derive from the principle of people's sovereignty and a constitutional state that the realisation of these would be the precondition - concerning preliminary review of the unconstitutionality of international treaties - for ensuring the right to initiate Constitutional Court proceedings for every citizen.
According to Article 20 of the Act, the Constitutional Court shall proceed based on the motion submitted by the party entitled to submit such a motion. The procedure instituted ex officio is a special jurisdiction of the Constitutional Court and according to Article 21 of the Act it is related to the procedure provided in Article 1 .c and e. According to this, the procedure of the examination of the conformity of legal rules as well as other legal means of state control with international treaties and the procedure during which the Constitutional Court shall eliminate the uncon-stitutionality manifesting itself in omission are instituted ex officio. However, the obligation for an ex officio procedure is not derived either from Articles 2,7 or 32.A of the Constitution concerning Constitutional Court proceedings. Thus, that part of the petition asserting the absence of the ex officio procedure is also unfounded.
There is no constitutional basis dealing with the law promulgating an international treaty different from any other legal rule concerning constitutional examination. Since it derives from the Constitution that ex post facto review shall cover all kinds of legal rule, this universality may not be restricted even by a law.
Article 1 .a of the Act therefore does not mean that the Constitutional Court may examine only preliminarily the unconstitutionality of certain provisions of an international treaty, but it means that besides the ex post facto review which derives from the Constitution, the unconstitutionality of an international treaty may also be examined preliminarily under the Act and upon certain conditions set out therein. From the fact that Article 1 .a specifies the preliminary examination of international treaties, it does not follow that in paragraph b the legislator should have had to mention the law promulgating a treaty, as a special type of law.
In order to confirm the foregoing, the Constitutional Court refers to the fact that concerning the relationship between domestic and international law, in the development of European law there is a tendency that the dualist-transformation system is replaced by the monist system. According to the monist-adoption concept, the concluded international treaty constitutes a component of national law without further transformation, that is it is applicable directly and enjoys supremacy over domestic law. This system is required by European integration, and for this reason, even those members of the EU which still follow the transformation system (e.g. Germany and Italy, founding members, and the Scandinavian countries which subsequently joined to the European Union) apply the law of the European Union directly, without transformation, and they ensure superiority over national law with the exception of the Constitution. As a result of this, the constitutional courts exercise their rights regarding constitutional examination concerning international treaties (international law) and the decisions of international organisations - due to the adoption system - automatical-ly become the part of the domestic law.
The examination of international treaties - after they become part of domestic law - fits into the logic of constitutional review. Therefore, in those countries where there is no specific regulation concerning this - due to the universality of constitutional review-the constitutional courts examine the constitutionality of them in exactly the same way as in the case of domestic law.
One of the Constitutional Court Justices wrote a dissenting opinion, according to which the Constitutional Court does not have the competence for the ex post facto review of an international treaty. The Act on the Constitutional Court entitles the Constitutional Court to examine the unconstitutionality of international treaties exclusively prior to their ratification, but there is no possibility for an ex post facto review. By incorporating the international treaty into the domestic law, the treaty does not lose its specific characteristic that it was concluded as an international treaty by the agreement of two or more parties of international law, and it was not passed by the Hungarian legislation.

Languages: Hungarian.

Identification: HUN-1997-1 -002
a) Hungary / b) Constitutional Court / c) / d) 19.03.1996 / e) 20/1997 / f) / g) Magyar Kozlony (Official Gazette), no. 24/1997 / h).

Keywords of the systematic thesaurus:
Sources of Constitutional Law - Categories – Written rules - European Convention on Human Rights.
Sources of Constitutional Law - Categories – Written rules - International Covenant on Civil and Political Rights.
General Principles - Proportionality.
Institutions - Courts - Organisation - Prosecutors  State counsel.
Fundamental Rights - Civil and political rights - Freedom of the written press.

Keywords of the alphabetical index: Prior restraint / Media, censorship.

Headnotes:
It is unconstitutional that on the prosecutor's proposal the court is entitled to prohibit publication of any printed matter which contravenes the provisions of Articles 3.1 and 12.2 of the Law on the Press, and that the prosecutor has the right to suspend publication of such printed matter immediately.

Summary:
According to Article 3.1 of the Law on the Press, information published by the press may not be aimed at committing crimes or subordinated to the commission of crimes, and may not damage others' personal rights and public morals. The provision of Article 12.2 provides that before starting a periodical it is necessary to register the intention of establishing and publishing it. Prior to registration, the periodical should riot be distributed.
In the petitioner's view, all forms of censorship, including the prior restraints under Article 15.3 of the Law on the Press, are against the constitutional requirement of a free press (Article 61.2 of the Constitution). Instead of suspending or prohibiting publication of press products in the abovementioned cases, the acceptable and proportional remedy could be the press correction in the frame of due process. Since personal rights may be typically enforced personally, the prosecutor's right to propose the prohibition of publication of printed matter which contravenes Articles 3.1 and 12.2 of the Law on the Press, infringes the right to self-determination.
According to the petitioner, the Law, by authorising the court to exercise the right to prohibit publication of the printed matter, damages public morals and is also against the freedom of the press.
The provision according to which the prosecutor has the right to suspend publication of printed matter immediately is clearly unconstitutional according to the petitioner, since the court can not reverse the act of the prosecutor even with its interim decision.
The Court found only one part of the petition justified.
In Decision 1 of 1994 (1.17), Bulletin 1994/1 [HUN-1994-1-001] the Constitutional Court declared that the right to personal dignity includes the right to self-determination, specifically the person's right to enforce or not to enforce his or her rights either before the court or the state bodies. In the present case the Court held that the provision authorises the prosecutor to propose the prohibition of publication of printed matter if it injures others' personal rights, and the Article according to which the prosecutor has the right to suspend this kind of printed matter, infringes the abovementioned provisions of the Civil Code which limit the right to self-determination without it being in fact necessary for the validation of any other constitutional right without, that is, the limitation meeting the obligation for proportionality under Article 8.2 of the Constitution.
The Constitutional Court held that Article 3.1 of the Law on the Press is in accordance with the restrictions worded by Article 19 of the International Covenant on Civil and Political Rights, and Article 10 ECHR. Under these provisions the exercise of freedom of expression can be restricted by law if it is necessary in a democratic society for the prevention of disorder or crime. Despite that, the Court declared that it is unnecessary and against the injured party's right to self-determination that the prosecutor could propose and on the prosecutor's proposal the court could prohibit publication of a newspaper or a periodical if it aimed at committing a crime or the aim was an incitement to commit a crime and the crime punishable upon private motion.
According to the Covenant and the European Convention of the Human Rights public morals may also be subject to certain restriction, hence the Article 3.1 of the Law on the Press is not unconstitutional. Neither did the Constitutional Court hold unconstitutional Article 12.2 of the Law on the Press. According to the Court's opinion the registration of press products is traditional and crucial with regards to press policing, therefore it is not contrary to the freedom of press.
Three judges wrote dissenting opinions, and one of these opinions was concurred by another judge.
In two judges' opinions - including the opinion of the President of the Court - the prosecutor's right to suspend the printed matter at once if according to the prosecutor it damages public morals, is unconstitutional. Public morality is an abstract value, therefore in the interests of this the exercise of free expression could not be restricted. The Constitutional Court, in an earlier decision, had held that the laws restricting the freedom of expression are to be assigned greater weight if they directly serve the realisation or protection of another basic right, a lesser weight if they protect such rights only indirectly through the mediation of some institution, and the least weight if they merely serve some abstract value as an end in itself (public order) (decision 30/1992 of 26.05.1992).
According to the two judges the fact that there is no guarantee that the procedure on the prohibition of publication of press products will be finished soon or at least in a reasonable time and that the prosecutor acts as a party in this type of procedure, violates the right to self-determination.
In his dissenting opinion which was concurred in by another judge, one of the judges of the Constitutional Court stated that the prosecutor's right to propose that the court prohibit publication of press products is not unconstitutional. The decision of the court at the end of this procedure does not mean res iudicata concerning the persons' entitlement to enforce their rights before the court. Regardless of the prosecutor's right, persons can decide themselves whether they will bring the case before the court or not. According to the judge Article 15.3 of the Law on the Press does not create a "clear and present danger", therefore the Court should not have had to annul this provision.

Languages: Hungarian.
 
Identification: HUN-1997-1-003
a) Hungary / b) Constitutional Court / c) / d) 29.04.1997 / e) 29/1997 / f) / g) Magyar Kozlony (Official Gazette), no. 37/1997/h).

Keywords of the systematic thesaurus:
Constitutional Justice - Constitutional jurisdiction - Relations with other institutions - Legislative bodies.
Constitutional Justice - Types of claim - Claim by a public body - Legislative bodies.
Constitutional Justice - Types of claim - Type of review - Preliminary review.
Constitutional Justice - The subject of review – Laws and other rules having the force of law.
Institutions - Legislative bodies - Law-making

Keywords of the alphabetical index: Preliminary review of a bill, limits / Preliminary review, procedure.

Headnotes:
According to the Standing Orders of Parliament and their interpretation, persons entitled by Article 21.1 of the Act on the Constitutional Court could initiate preliminary review of a bill which had not yet been decided on by the Parliament, without any further condition or agreement.
An Act which is decided on by Parliament without allowing the persons entitled to initiate preliminary review of the bill is unconstitutional and invalid.
The Constitutional Court declared that Parliament created an unconstitutional situation with respect to its own Standing Orders by failing to guarantee the practice of the right to initiate preliminary review of laws before their enactment.

Summary:
During the ongoing discussion on the draft of the Bill on Incompatibility of Parliamentary Representatives, fifty-two Members of Parliament proposed that the Constitu-tional Court review the constitutionality of some provisions of the bill. At the same time the petitioners asked the Parliament to postpone the final voting on the contested bill. The Parliament, referring to its Standing Orders, decided in favour of the final voting. The petitioners submitted that it was unconstitutional as, according to the Standing Orders of Parliament, it is possible to postpone the final vote on the bill by a four-fifths majority of the Members of Parliament. This thus makes it impossible for fifty parliamentary representatives to practise their right to initiate preliminary review of the bill before the Constitutional Court.
The reasoning of the Court recalled a previous decision. In 16 December 1991 (IV. 20) the Constitutional Court presented its opinion on the Court's jurisdiction concerning preliminary review. The Court pointed out that it may make sense to review the constitutionality of a bill which is already disputed during the legislative procedure because preventive norm control may prevent the annulment of an already-promulgated legal rule which has come into force. However, the Hungarian regulation does not restrict the Court's jurisdiction to the final text of the bill, but makes review possible at any stage of the legislative process. The Court declared that examining the constitutionality of some provisions of a bill, the text of which is not definitive, could possibly mean involving the Constitutional Court in the everyday legislative process. The Constitutional Court is not an advisory organ of Parliament. Its task is to judge the result of the legislative work. Therefore, the current regulation of the preventive norm control of bills is incompatible with the principle of separation of powers.
According to Article 33.1 of the Act on the Constitutional Court, upon the motion of fifty Members of Parliament the Constitutional Court shall examine the constitutionality of any contested provision of a bill. In the meantime, Parliament must not vote on the final text of the law. The postponement of the final voting on the contested bill is a constitutional obligation, since this is the only way for the fifty parliamentary representatives to practise their right to initiate preliminary review. Since the decision of the Constitutional Court is binding on everyone, the law enacted by Parliament regardless of this constitutional requirement is void and unconstitutional.
The Constitutional Court declared that Parliament created an unconstitutional situation with respect to the Standing Orders of Parliament by failing to guarantee the possibility for the fifty Members of Parliament to practise the right to initiate preliminary review of laws before their enactment. The Court, therefore, called upon Parliament to meet its legislative obligation by 15 June 1997.

Languages: Hungarian.

Identification: HUN-1997-1 -004
a) Hungary / b) Constitutional Court / c) / d) 29.04.1997 / e) 30/1997 / f) / g) Magyar Kozlony (Official Gazette), no. 37/1997/h).

Keywords of the systematic thesaurus:
Institutions - Legislative bodies - Status of members of legislative bodies.
Fundamental Rights - General questions – Entitlement to rights.
Fundamental Rights - Civil and political rights – Equality - Affirmative action.
Fundamental Rights - Civil and political rights – Right to private life.
Fundamental Rights - Economic, social and cultural rights - Commercial and industrial freedom.

Keywords of the alphabetical index: Incompatibility / Parliament, incompatibility.

Headnotes:
A provision stipulating that current Members of Parliament can keep their "incompatible" positions, provided the second post was obtained before the representative was elected is unconstitutional.

Summary:
The petitioners contend that some of the provisions of the conflict-of-interest amendment to the Law on "Regulating the Legal Status of the Members of Parliament" are unconstitutional.
The petitioners assert that the bill's distinction between private and public companies is unconstitutional, since this kind of distinction violates Article 9.1 of the Constitu-tion according to which Hungary is a market economy where state and private property receive equal treatment. In addition, the petitioners claimed that these amendments restricted economic competition ensured by Article 9.2 of the Constitution, because companies with Members of Parliament in their management must now refrain from public procurement activity. According to the petitioners, the law in question violates privacy and rules protecting personal data by requiring parliamentary representatives to make essentially private information available to the public or to a parliamentary committee. The petitioners also contend that the provision of the Law includes an unconstitutional distinction, according to which current Members of Parliament could keep their "incompatible" positions, provided the second post was obtained before the representative was elected, but Members who had taken up "incompatible" posts after their election to Parliament would now have to step down from these positions.
The Constitutional Court found some parts of the petition justified. The reasoning of the Court recalled a previous decision on incompatibility. In Decision 55 of 1994 (X.10) (see Bulletin 1994/3 [HUN-1994-3-017]) the Court stated that the most important cases of incompatibility of the office of Member of Parliament are listed in the Constitution, which also entities the legislature to determine further cases of incompatibility. However, while defining these further cases of incompatibility the legislation must not impose any limitations on the essential content and meaning of fundamental rights.
According to the Constitutional Court there is no direct connection between the rules regulating some positions "incompatible" with the office of the Member of Parliament and Article 9.1 and 9.2 of the Constitution. The aim of the Amendment is not to differentiate between state and private companies concerning the incompatibility of a parliamentary representative. Thus, it is not unconstitution-al that the law defines some positions as "incompatible" with the function of a representative, since the profits of the companies (regardless of the fact that it is private or state property) are closely linked to government activity and rely heavily on government contracts.
The Court did not hold unconstitutional the provision according to which a Member of Parliament is excluded from holding important posts in companies defined by the Act on Public Procurement. This regulation does not restrict the company's right either to conclude a contract or to participate in public tendering procedures determined by the Act. However, if as a result of a public tendering procedure the parties conclude a contract and because of the contract the position of a parliamentary representative (who holds an important post in the company in question) becomes "incompatible", the Member of Parliament should terminate the existing cause of incompatibility. This obligation of the representative does not have any effect on the company's right of contractual freedom and its situation in economic competition.
The petitioners contend that the amendment to the Law "Regulating the Legal Status of the Members of Parliament" is unconstitutional due to the fact that the representatives are required to disclose their property, income and business interests.
The Court found this part of the petition unfounded. According to the Court, the right to privacy of personal information is not an absolute one. The legislature could prescribe the public disclosure of personal records, and this limitation on the right to privacy of personal information is constitutional if it fulfils the constitutional requirement concerning the limitation on the essential contents and meaning of fundamental rights. The aim of the disclosure of a Member of Parliament's business interests is that the representative's property interests should be transparent.
The Constitution does not regulate the "incompatibility" between the office of the Member of Parliament and some positions in either private or State companies, therefore the legislature has a discretion on determining the representatives' obligation for supplying data concerning their business interests. Taking into account all the abovementioned facts, the Court held that limitations on informational self-determination under the contested provisions are in proportion with the aims set to be achieved.
With regard to the fourth part of the petition, the Court held that the provision according to which - as an exception to the rule - the current Members of Parliament could keep their "incompatible positions" includes an unconstitutional distinction on the basis of the time when the representative was elected. This regulation dif-ferentiates between persons who are in the same legal position, since both the representative who had taken up "incompatible" position after their election to Parliament and the MP who provided the second post was obtained before the MP was elected, assumed lawfully their positions in a company. Preferring the representative who had taken up the "incompatible" post prior to the election is not affirmative action. According to the Court, positive discrimination is applicable if a social aim or a constitutional right could be enforced only in a way that the equality in the narrower sense could not be achieved.
One of the Constitutional Court Justices wrote a dissenting opinion, in which he stated that it is in conformity with the Constitution and the decisions of the Constitutional Court concerning affirmative action, that the legislature enacted the provision according to which the current Members of Parliament could keep their "incompatible" positions, provided the second post was obtained before the representative was elected.

Languages: Hungarian.