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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Constitutional Court of Hungary (Magyarország Alkotmánybírósága)

Hungary [hu]

Katalin Kelemen, Max Steuer

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 04 August 2020

Powers and jurisdiction of constitutional courts/supreme courts

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

The Hungarian Constitutional Court (hereinafter ‘HCC’) belongs to the fourth generation of European constitutional courts. It was created after the breakdown of state socialism, as were its several counterparts in Central and Eastern Europe. Hungary was second only to Poland in the region in establishing a constitutional court. The HCC, which began its operation on 1 January 1990, represents a revisited version of the German model of constitutional justice or, in the words of Roman Herzog, it is a granddaughter of the Federal Constitutional Court of Germany (Bundesverfassungsgericht) (Sólyom (2003) 153, n 4). Already in its original setup, the Hungarian system of constitutional justice contained some elements not included in the German system (see the actio popularis), and it did not include some of its elements, such as constitutional complaints against judicial decisions, until the 2011 reform. Today, after the abolition of the actio popularis and the introduction of the full constitutional complaint, the HCC is even closer to the German model than before.

In the first decade the HCC faced and, in fact, took the lead in transitioning from a socialist system to a democratic one. That period presented at least two serious challenges to the Court: it had to find its role and position within the public sphere, delimiting and widening its own powers, and it had to solve difficult transitional issues (see Dupré; Halmai (1999); Sadurski; Sajó (1995); Scheppele; Sólyom (2003); Sólyom and Brunner). Hungary enacted a new constitution, named Fundamental Law, in April 2011 (Fundamental Law of Hungary (Magyarország Alaptörvénye): 25 April 2011 (Hung), hereinafter ‘FL’), followed by a new Constitutional Court Act (Act No. CLI of 2011 on the Constitutional Court of Hungary (Hung), hereinafter ‘CC Act’) in November of the same year. Both entered into force on 1 January 2012, and represent a turn in the history of the HCC. This entry discusses both the original setup prior to the 2011 reform and the status quo of the HCC.

As in other European countries, in Hungary the system of constitutional justice is only in part regulated by the constitution. Besides Article 24 FL, there is a legislative act regulating the organization and the functioning of the constitutional court (the CC Act), as well as Rules of Procedure adopted by the Court itself (Plenary Session Decision 1001/2013 (II. 27.) AB TÜ (Hung), hereinafter ‘RoP’).

B.  Powers

The original asset, in the form as it existed prior to the adoption of the new FL, was a particularly rich one. A rather unique competence of the HCC was that for reviewing omissions of the legislature, provided by the Portuguese model, but not by the German one. Furthermore, a well-known example for the rich competences was the actio popularis, in virtue of which anyone could request the control of constitutionality of any legal norm of the legal system, without being obliged to prove his or her personal interest. This peculiar instrument resulted in a practically unlimited access to constitutional justice until the enactment of the 2011 reforms.

The HCC, in its original form, was one of the most powerful constitutional courts in Europe. Besides the actio popularis and the competence for omission of the legislator, there were other features, such as the authoritative interpretation of the constitution (interpretation of constitutions), the ex ante (or preventive) review, the possibility to proceed ex officio, the especially broad range of acts that could be subjected to review, and a broad conception of the basis for review as well. In substance, before the 2011 reform, the HCC had almost all possible powers of a constitutional court at its disposal, with the exception of competences relating to the legality of political elections and political parties, and with the exception of a real (or full) constitutional complaint (powers and jurisdiction of constitutional courts / supreme courts). The Court could, and still can, review the constitutionality of not only legislative acts, but of all legal norms of the legal system, including international treaties (s 23(4) CC Act; application of international law in domestic legal systems). Moreover, these norms can be reviewed not only on the basis of the constitution, but also on the basis of international treaties (Art. 24(2)(f) FL). In this way international treaties are both subject to constitutional review and offer a basis for review themselves.

The new FL has modified this framework in part. The most peculiar element of Hungarian constitutional justice, the actio popularis, has been abolished. However, this loss has been counterbalanced by the introduction of a new instrument: the full constitutional complaint (Art. 24(2)(d) FL), the equivalent of the German Verfassungsbeschwerde. In its first period of life the Court could not review judicial decisions, but only legislative and sub-legislative acts. The HCC tried to make up for the absence of a full constitutional complaint and to bring judicial decisions in its sphere of competence by applying the concept of living law, borrowed from the Italian Constitutional Court (Sólyom (2001) 179). There has been a different form of constitutional complaint from the beginning though, which can be used in the ambit of legal proceedings before any court against the legal norms applied by that court, ie not against the judicial decision itself (Art. 24(2)(c) FL). This so-called normative constitutional complaint (Naszladi and Tilk 64) is in practice a form of concrete review initiated by the party to the controversy and not by the judge. After the abolition of the actio popularis, constitutional complaints have become much more relevant in Hungarian constitutional justice, which resulted in a clear shift of emphasis from abstract to concrete review (Kelemen (2014) 76; Gárdos-Orosz (2016) 450–52).

Since the abolition of the actio popularis, an ex post abstract review can only be initiated by certain public actors: the government, one-fourth of the members of Parliament, the Ombudsman, and, since the Fourth Amendment to the FL (adopted in 2013), the President of the Curia (the Hungarian Supreme Court), the President of the Administrative High Court, and the Prosecutor General (Art. 24(2)(e) FL). The concrete review is also upheld (Art. 24(2)(b) FL). The HCC’s competences have also been enriched by the CC Act, which establishes powers not specified in the FL, such as the examination of parliamentary resolutions related to ordering referendum and to the acknowledgment of organizations performing religious activity (ss 33–33A CC Act), the removal from office of the president of the republic (s 35 CC Act), and the resolution of conflicts of competence (s 36 CC Act).

A quite peculiar and unique constitutional provision concerning the powers of the Constitutional Court is contained in Article 37 FL relating to public finance. The fourth paragraph of this article provides that as long as government debt exceeds half of the gross domestic product, the Constitutional Court may, within its powers set out in Article 24(2)(b)–(e), review the acts on the central budget, the implementation of the central budget, central taxes, duties, and contributions, customs duties and the central conditions for local taxes for conformity with the FL exclusively in connection with the right to life and human dignity, the protection of personal data (data protection), to freedom of thought, conscience, and religion (freedom of conscience and religion or belief), or the rights related to Hungarian citizenship, and it may annul these Acts only for violation of these rights. The provision also states that the HCC shall, however, have the unrestricted right to annul the related Acts for non-compliance with the FL’s procedural requirements. A similar restriction on a constitutional court’s jurisdiction is difficult to find in any other European constitution. The reasons for this restriction are to be found in a decision of the HCC, with which, in October 2010, it annulled a law imposing a tax of 98 per cent on severance pays exceeding two million Hungarian forints (approximately US$9,000 at that time) with retroactive effect from 2005 (Decision 184/2010 (2011) (Hung)) (the law was a response to the scandals which emerged at the public transportation company of Budapest that had paid to its retiring manager a severance pay of more than 86 million forints, equivalent to more than 70 months’ salary). After this decision the Parliament (in which the government held two-thirds of the seats necessary for the adoption of a constitutional amendment) modified the constitution then in force, restricting the HCC’s jurisdiction in financial and tax matters, and approved the same law again. Notwithstanding these restrictions, the HCC struck down the law again in May 2011, pointing out that retroactive taxes violated the right to human dignity (Decision 37/2011 (2011) (Hung); retroactive application of laws). The new FL somewhat mitigated the rigour of the norm by adding the requirement related to the amount of the state debt.

C.  Composition

1.  The Number of Judges

The HCC was composed of eleven judges until 2011, when their number was increased to 15. A court composed of 15 judges was actually the original idea when the HCC was being designed in 1989. As a result of a compromise between the political actors negotiating the conditions of the democratic transition in the so-called Round Table Talks, the first five judges were elected by the Parliament in the autumn of 1989, before the first free democratic elections of the country, even though the list of candidates was the result of a compromise between the Communist Party and the extra-parliamentary opposition as many other elements of the new constitutional framework. Another five members were appointed by the first democratically elected Parliament in July 1990 with the consent of all five parliamentary parties (Sereg 27). The last third of the 15 judges should have been elected by the second democratically elected Parliament in 1994, which amended the constitution instead, reducing the number of judges to eleven (Act No. 74 of 1994).

10  The Court could not always work with its full membership. In certain periods there was even a danger that it could not work properly because the number of judges in office barely reached the quorum necessary to make decisions (the participation of at least eight judges). This happened in 2005 when for more than six months the Court worked with eight judges, so the illness or other impediment of only one judge could paralyse its functioning. The same situation occurred in 2009–10, when it took one and a half years and the formation of a new government to appoint two new judges.

2.  The Appointment Procedure

11  The situation of standstill in the appointment of new judges shows that the appointment procedure (selection of judges at constitutional courts / supreme courts) has struggled with the problem of long-lasting vacancies on the Court. The procedure, designed in 1989, providing for a parliamentary model of appointment, requiring a two-thirds majority in the unicameral Hungarian Parliament for the election of all members of the HCC, underwent a slight but very significant modification in 2010 (Kelemen (2013) 16). The same government that held a majority sufficient for the enactment of a new constitution the following year, changed the composition requirements of the ad hoc parliamentary committee which has been in charge of choosing the candidates. Previously, the committee consisted of one member of each political party represented in the Parliament. This solution aimed at reaching a consensus between the different political forces, even though in practice sometimes resulted in a deadlock of the procedure if there was only one vacancy to be filled. Instead of a consensus, the members of the nominating committee reached an agreement, distributing the vacant positions among themselves. After the reform, which immediately raised concerns for the balanced composition of the HCC, the nominating committee shall today reflect the weight of the parties in the Parliament (Art. 7(1) CC Act). This means that the government dominates the nomination. Even though it could happen even under the previous appointment procedure, if the government coalition was composed of more political parties than the opposition, today the government’s dominant position has become the rule. In the new system the government can in practice appoint new constitutional judges without the consent of the opposition. The fact that this reform was anticipated by a constitutional amendment already in 2010 also shows the importance of the HCC recognized by the government. All 15 sitting members of the Court have been elected under the new procedure.

3.  The Term of Office

12  Another change anticipated by a constitutional amendment concerned the constitutional judges’ term of office, which was brought from nine to twelve years. At the same time, the possibility of re-appointment was abolished. At the time of the reform Hungary was the only country in Europe where re-appointment of constitutional judges was explicitly allowed (see Art. 8(3) of Act No. 32 of 1989 (Hung) in force until 2011), while in the Czech Republic it has been possible due to a gap in the legislation. Today Article 6(3) CC Act provides that the member of the HCC may not be re-elected. The official motivation attached to the draft of the new CC Act asserted that the ban was a consequence of the increased term of office.

4.  Internal Organization and Procedure

13  The HCC’s 15 judges sit both in plenary session and in smaller panels, as in the majority of European constitutional courts. The Court is assisted by a Secretary General (fotitkár) who examines the petitions against the formal requirements and prepares the proceedings (ss 22 and 55 CC Act; preliminary procedures of constitutional courts / supreme courts). Certain matters, such as preventive review, interpretation of the FL, and annulment of unconstitutional legislation, are reserved for the plenary session, while the three permanent five-member panels have residual competence (s 50(1) CC Act and s 5(2) RoP). The admissibility of constitutional complaints is decided by a panel (s 56 CC Act). The new CC Act also introduced the single-judge formation in order to lighten the heavy workload. Since 2012, it is for a single judge—at the proposal of the Secretary General—to reject petitions that do not fulfil the formal requirements (s 55(5) CC Act). From a comparative perspective, it is an uncommon solution. Besides the HCC, among the western and east-central European constitutional courts, only the Czech and Slovenian constitutional courts use single-judge formations (Kelemen (2018) 19).

14  The President of the HCC is a comparatively medium-strong court president (Kelemen (2018) 29–39). He/she has a casting vote in case of a tie (s 48(5) CC Act), and she can choose the rapporteur judge in every case (s 17(1)(e) CC Act). The rapporteur judge is the ‘master’ of the case during the whole procedure and usually the author of the judgment’s reasoning. The President of the HCC is today chosen by the Parliament from among the members of the Court by two-thirds majority (Art. 24(8) FL). Until 2012, under the old constitution, the judges elected their President from among themselves. The Vice President is instead still elected by the majority of the plenum on the proposal of the President (s 21(2) CC Act and s 17(1) RoP).

15  Each judge of the HCC is assisted by three law clerks (clerks of constitutional courts / supreme courts), who play a varying role in the preparation of judicial opinions depending on the working style of the judge they support. Clerks may give their personal contribution to the development of the court’s case law and some of them later became members of the HCC. Unlike law clerks of the US Justices, clerks at the HCC are employed for a longer period. It is not uncommon for them to remain at the Court even after the retirement of the judge who originally employed them, so that they continue to work in the team of another judge. As a consequence, Hungarian constitutional judges are also more prone to delegate opinion-writing to their clerks than their US colleagues (Kelemen (2018) 46). Members of the HCC are allowed to publish separate dissenting or concurring opinions (s 66(2) CC Act).

D.  Core Developments

16  The HCC’s jurisprudence displays a unique development due to the major change of its competences in 2013. The Fourth Amendment to the FL (Closing and miscellaneous provisions, Art. 5) repeals the decisions of the HCC ‘made prior to the entry into force of the Fundamental Law’ (as in force on 29 June 2018 (Hung)) which should, however, ‘be without prejudice to the legal effects produced by those decisions’. The wording gives rise to the question to what extent the HCC’s earlier case law presents a set of precedents (precedent) that the HCC can use in deciding on contemporary legislation. The HCC post-amendment has occasionally referred to its earlier case law, even though it never explicitly opposed this particular provision. It had established the interpretative principle that earlier references are legitimate with respect to those constitutional provisions which were copied to the Fundamental Law from the 1989 constitution (Decision 22/2012 (2012) (Hung)).

17  A more extensive classification of the HCC’s practices of using the previous case law particularly in human rights adjudication can be identified (Téglási 317–39). This, however, does not concern the HCC’s jurisprudence on checks and balances between the executive, the legislature, and the judiciary. Consequently, this area of adjudication remains particularly vulnerable in the absence of the principles established by the Court’s pre-2011 case law. A brief, selective survey of cases decided during the term of the HCC’s first president, László Sólyom, covering the transitional jurisprudence, and then before 2011 highlights the extent to which the invalidation of existing doctrines can have a transformative effect on the Hungarian constitutional system.

1. 1990–98

18  The most notable case from the HCC’s early years of operation concerned the abolition of the death penalty (Decision 23/1990 (1990) (Hung); see Sólyom and Brunner 118–38). This doctrine formed a major reason why the Court was considered ‘activist’ (Sadurski 19). In all but explicit wording, the doctrine, articulated in a concurrence by President Sólyom, declared that the HCC’s jurisprudence supersedes the constitution in case of doubt about the compatibility of particular constitutional regulations with ‘constitutionality’.

19  The death penalty case can be seen as part of a broader set of cases in which the HCC was concerned with human dignity, developing an extensive understanding of the term even beyond that of the German Federal Constitutional Court (Robertson 116–17). Notable related cases concerned abortion (Decision 48/1998 (1998) (Hung); also Dupré 71–77), the use of personal data (Sólyom and Brunner 139–50), and freedom of expression. The latter is among the most extensively covered fundamental rights in the HCC’s jurisprudence in this period, and is surrounded by considerable controversy over the scope of this right in relation to hate speech. The invalidation of the criminal regulation of offensive speech can be seen as a movement towards a more extensive protection of the right such as in the US constitutional system (Molnár 238 et seq.) while the retention of the possibility to prosecute incitement beyond the US ‘clear and present danger test’ is a step more typical for a ‘European regime’ of regulation of the right (Sajó (1994) 84, see also Steuer 194–97). While these decisions can be seen as two sides of the same coin, the contestation over their interpretation blurred the contribution of the Court in this area.

20  Particular (albeit) contested evidence for the argument about an ‘activist court’ is the HCC’s jurisprudence surrounding the so-called Bokros package, a series of regulations lowering the level of protective welfare measures (general welfare; social security) largely struck down by the Court on the grounds of their incompatibility with the guarantee of ‘legal security’ (jogbiztonság), a Hungarian wording for legal certainty, including the concepts of legitimate expectations and fair procedures of legislative change (see eg Decision 43/1995 (1995) (Hung)). These cases can be seen as a manifestation of the Court’s concern with substantive democracy that was supported by public opinion (Scheppele 48). A more critical take points out that this jurisprudence still left out the most vulnerable segments of the society whose voice is marginal in public opinion and who were not sufficiently protected even by the initial legislation (Sajó (2006) 83–105). Thus, this jurisprudence can also be read as the Court acting in a restrained manner, trying to balance ‘activism’ (which could be defined in this context as stipulating a legislative omission in addition to the declaration of unconstitutionality of the Bokros package) and ‘deference’ (validating the Bokros package instead of declaring it unconstitutional).

21  The Court discussed the concept of ‘legal security’ in different contexts as well, such as in relation to constitutional amendment review, which it essentially rejected in a series of interpretations spanning from the 1990s through early 2000s. Despite the Court’s ‘revolution under the rule of law’, the Court did not provide for ‘legal security’ in relation to the content of constitutional amendments (Arato 199–205). In other words, it denied the possibility of a substantive review of constitutional amendments (eg Order 23/1994 (1994) (Hung)).

2.  1998–2011

22  The Court did have a considerable case law to build on after 1998. In the period before 2007, it predominantly dealt with politically less salient challenges centred on fundamental rights, which is mirrored by its lower level of restraining the Hungarian parliament (Pócza, Dobos, and Gyulai 5.3.2). The HCC’s case law in this period includes more references to the central principle of constitutional democracy, shortly after a book of the same name by a notable Hungarian philosopher was published in Hungary (Kis). Nevertheless, it still produced relatively few explicit elaborations on the meaning of democracy.

23  This gap posed a challenge to the HCC when, in 2007, it had to deal with the boundaries between direct democracy and representative democracy in several cases concerning referendum questions initiated by the then opposition parties (primarily the Alliance of Young Democrats (‘FIDESZ’)) (notably Decisions 13/2007 (2007) (Hung) and 15/2007 (2007) (Hung)). The Court’s convoluted reasoning resulted in allowing some referendum questions on the edge of the constitutional text (such as on specific regulation of healthcare protection), and contributed to the perceived growth of the position of FIDESZ in the constitutional system (Komáromi 55).

3.  Since 2011

24  At the beginning of this period, the HCC (not yet composed of a majority of nominees by coalition parties) declined to substantively review the Fourth Amendment to the FL (Decision 61/2011 (2011) (Hung)). Thus, the constraints on the HCC’s powers contained in this amendment were validated by the Court itself. This deferential standpoint can be seen critically from the perspective of the Court as guardian of the constitution (Halmai (2012) 194–97), let alone of democracy. Even though, in a subsequent decision, the Court invalidated the Transitional Provisions to the FL, it did so only on procedural grounds (Decision 45/2012 (2012) (Hung)). This was followed by the invalidation of several provisions of the Act XXXVI of 2013 on Electoral Procedure that had introduced voter registration requirements for Hungarians from abroad (Decision 1/2013 (2013) (Hung), Stumpf 248–49).

25  Despite the HCC never engaging in substantive constitutional amendment review, the governing majority subsequently cemented the prohibition of amendment review into the FL, making it even more difficult for the Court to reverse it in the future. Considering the change of the appointment process and the shift in the ‘political orientation’ (Szente (2016) 131–34) of some of the judges, such a development is highly unlikely.

26  As a result of the competence change, the Court’s focus has shifted towards reviewing constitutional complaints rather than judicial review of legislation (Tóth 99–105). When exercising either competence in human rights cases, the Court had displayed the primacy of the ‘interest of the community’ over the individual (cf. Balázs 102). This change in orientation has been confirmed by the Court’s President Tamás Sulyok in commenting on some of these cases (Bácskai Balázs-Nagy, Az állam nem hagyhatja magukra a hajléktalanokat (Hung)). Some of the most internationally followed judgments of the HCC in 2016–19 concerned its relationship (and that of the Hungarian legal order) to the European Union.

E.  The Hungarian Court and the European Courts

27  As a court embedded in the European legal space, the HCC has to engage with the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (‘CJEU’) (relation of constitutional courts / supreme courts to EU courts). As for the former, while there is no shortage of references to the ECtHR case law in the HCC’s jurisprudence, and the relationship to Strasbourg ‘seems complementary’ (Spuller 686), selective borrowing techniques aimed at boosting the legitimacy of the Court can be identified (Szente (2013) 1602). At the same time, references to international law became less frequent between 1998 and 2013 compared to the period until 1998 (Jakab and Fröhlich 397–98).

28  As for the CJEU, before the adoption of the Fundamental Law, the Court had performed a de facto review of the compatibility of legislation with EU law instruments, despite declaring that its competence does not exceed compatibility review with the domestic legal and constitutional order (Tatham, 159–68). This was accompanied by the Court’s reluctance to submit preliminary questions to the CJEU even in cases in which its ruling had affected the interpretation of EU law instruments in Hungary (Gárdos-Orosz (2015) 1575–84).

29  After the adoption of the FL, the Court shifted towards attributing a central role to the concept of ‘constitutional identity’. While the current ‘Europe clause’ (Art. E(2) FL) is not notably different from the 1989 constitution (Bragyova 336–38), the overall structure of the document prompted the Court to set Hungarian constitutional identity (see also Pap 57–65) as a reservation to European integration, in the context of the launch of a national consultation against the joint European Union approach on migration (Decision 22/2016 (2016) (Hung); see also Kelemen (2017); and Halmai (2018)). A similar approach is observable through several other cases, such as the decision on postponing the substantive judgment on the compatibility of the amendments to Hungarian legislation on higher education (Order 3199/2018 (2018) (Hung)) and non-governmental organizations (Order 3198/2018 (2018) (Hung)) until the CJEU’s decision (thereby denying effective protection to the institutions targeted by this legislation), as well as by granting a broad leeway to the executive when determining asylum procedures in Hungary, despite the country’s international obligations (Decision 2/2019 (2019) (Hung)).

F.  Conclusion

30  Approaching the 30th anniversary of its establishment, the HCC remains a formally powerful judicial institution with a potential to serve as a last domestic resort of protection against undermining the democratic political regime and violating fundamental rights. Being a constitutional court of an EU Member State, it can and does also engage in the interpretation of the relationship between the EU and the Hungarian legal order.

31  Unlike most other EU Member States’ constitutional courts, however, the HCC currently operates in the circumstances of an illiberal regime (Constitutionalism of Illiberal Regimes) where the parliamentary majority controls the appointment process and the wording of the FL is combined with the executive efforts to discontinue many doctrines from the first two decades of the Court’s operation. Therefore, a combination of a developing self-awareness of the HCC’s original mission by the judges and a creative interpretation in dialogue with the international and European common democratic traditions is necessary for the Court to operate as an institution independent from the ruling majority.

G.  Acknowledgment

32  Acknowledgment: Max Steuer acknowledges the support by the Comenius University Grant No. 346/2019 on ‘Conceptualization and Measurement of Democratic Performance of Political Institutions: The Case of the Constitutional Judiciary’.

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