2016 Global Review of Constitutional Law

into force of the Fourth Amendment to the
Fundamental Law, the Head of the Curia and
the Chief Public Prosecutor can also submit
a proposal for a review of constitutionality.
The new regulation can still be qualified
in this regard as a very restrictive one as
to the control of legislation especially in
comparison to the former solutions.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
As a result of a constitutional amendment
in November 2010, a serious limitation
of the competences of the Constitutional
Court was introduced. According to this
amendment, the Constitutional Court may
assess the constitutionality of acts related
to the state budget, central taxes, duties and
contributions, custom duties, and central
conditions for local taxes exclusively in
connection with the rights to life and human
dignity, the protection of personal data,
the freedom of thought, conscience and
religion, or with rights related to Hungarian
citizenship. Also, the Court may only annul
these acts in cases of violation of the abovementioned
rights. The restriction of the
Constitutional Court’s competences was
the answer of the alliance of the governing
parties to a CC decision, which annulled a
law on a certain tax imposed with retroactive
effect. From 2010 to 2013, the two-thirds
majority having the competence to adopt
constitutional amendments overruled other
decisions of the CC as well. 1 As a result of
the new system, the control of the legislation
and the government (strictly cooperating with
each other in this parliamentary democracy)
became more difficult as the initiatives for
the constitutional review of the problematic
pieces of legislation became more frequent
in procedures attached to concrete judicial
cases, launched in constitutional complaint
procedures. The high non-admissibility of
these constitutional complaints meant a
severe restriction on the number of cases
examined on the merits by the Constitutional
Court. 2
Although the new provisions in the
Fundamental Law on the competencies of
the Constitutional Court provide for several
procedures to initiate the review of a piece
of legislation, in reality, due to the abovementioned
“court-packing” and the modified
ways of the election of the members and
the president, plus due to the competence
restrictions, the Constitutional Court has lost
much of its actual relevance compared to the
period before 2010.
The changes mentioned in Part II have led
to a change in understanding the protection
of the constitution and the protection of
constitutionality differently. We explain
the result of this different understanding in
Part IV with the 2016 cases. Interpretation
of the CC has changed significantly
towards a more deferential understanding
of constitutionality. To summarize, not only
the institutional challenges or the changes
in the competence of the Court are worth
mentioning when it comes to the Hungarian
Constitutional Court but also, partly as a
result of this, the actual composition of the
judicial body. The change in the composition
has led to a change in the understanding of
constitutionality. The cases below will show
that the majority of the Court is willing to
accept political proposals formulated as
legislative acts and show deference for
the legislative majority in sensitive cases.
Sovereignty, democracy or the rule of law
are understood differently from earlier
concepts developed by the CC. This process
is accelerated by the Fundamental Law’s
closing and miscellaneous provisions where
it is declared that Constitutional Court
decisions issued prior to the entry into force
of the Fundamental Law are repealed. Not
only has the relation to former case law
changed significantly in recent years but also
the relation of the Hungarian constitutional
order to its European and international
counterparts. In 2016 the CC made
reservations in the majority opinion with
regard to the law of the European Union and
dissenting opinions questioned the relevance
of ECtHR decisions in the domestic
constitutional interpretation of fundamental
rights. It is also a major dilemma of 2016
how the interpretation of the constitution
is ruled by the Fundamental Law. The
Fundamental Law declares in Article R (3)
that the provisions of the Fundamental Law
shall be interpreted in accordance with their
purposes, with the Avowal of National Faith
(Preamble), and with the achievements of
our historical constitution. In 2016, the
Constitutional Court has started to take this
provision seriously as we will see in Decision
22/2016 (XII. 5.) below.
MAJOR CASES
Decisions on elections and direct
democracy’s impact on political competition
In 2014, for the first time Hungarian
citizens without residency in Hungary could
participate in parliamentary elections and
vote by postal voting. At the same time, postal
voting is not allowed to Hungarian citizens
residing in Hungary but who are abroad on
election day. In Decision 3086/2016 (IV.
26.), the CC held that this difference in
treatment did not violate the right to free
elections (Article XXIII of Fundamental
Law) and the right to non-discrimination
(Article XV).
According to the Court, the residence
requirement expresses that residents have
a more intensive connection to the political
community so it can be expected that those
voters will be at home on election day or go
to an embassy or a consulate to cast a vote.
The other argument was that although the
possibility of voting by post seems to be an
advantage, it should be regarded together
with the electoral system, which gives nonresident
voters only one vote for party lists
(while resident voters can vote both for
single member candidates and party lists),
which is a disadvantage for non-resident
voters. The easier method of voting was
therefore considered by the Court to be
a form of compensation for them. In our
opinion, this raises serious concerns as to the
principle of effective citizenship: that while
1
European Commission for Democracy through Law (Venice Commission), Opinion on the Fourth Amendment to the Fundamental Law of Hungary [CDL-
AD(2013)012] 83.
2
The Constitutional Court of Hungary, ’Statistics’ accessed 14 February 2017.
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