Constitutional Court of Hungary
Template:Politics of Hungary The Constitutional Court of Hungary (Template:Lang-hu) is a special court of Hungary, making judicial review of the acts of the Parliament of Hungary. The official seat of the Constitutional Court is Budapest. Until 2012 the seat was Esztergom.
The Constitutional Court is composed of 15 judges since September 1, 2011 (previously, the Court was composed of 11 judges). The members then elect the President of the Court from among its members in a secret ballot. One or two Vice-Presidents, appointed by the President of the Court, stand in for the President in the event of his absence for any reason. The constitutional court passes on the constitutionality of laws, and there is no right of appeal on these decisions. The Constitutional Court serves as the main body for the protection of the Constitution, its tasks being the review of the constitutionality of statutes, and the protection of constitutional order and fundamental rights guaranteed by the Constitution. The Constitutional Court performs its tasks independently. With its own budget and its judges being elected by Parliament it does not constitute a part of the ordinary judicial system.
On October 19, 1989 the Hungarian Parliament passed a resolution on the establishment of the Constitutional Court. Its organisation and authority, however, had been determined earlier in the framework of the trilateral political roundtable negotiations preparing the democratic transformation of the political system. The basic provisions on the Constitutional Court were laid down in October 1989 by Parliament by way of amending the Constitution (Article 32/A). The court was set up in order to promote the establishment of a state governed by the rule of law as well as the protection of constitutional order and fundamental rights. Act XXXII of 1989 on the Constitutional Court was passed by Parliament on 19 October 1989, and the Constitutional Court started its work on 1 January 1990.
Changes made by the 2011 Constitution
The Constitutional Court (Article 24.)
(1) The Constitutional Court shall be the main authority for constitutional protection.
(2) The Constitutional Court shall
a) review the constitutionality of laws adopted, but not yet published,
b) review at the request of a judge the constitutionality of legislation to be applied in an individual case,
c) on the basis of a constitutional complaint, review the constitutionality of legislation or a judicial decision applied in an individual case,
d) upon the initiative of the Government or one quarter of the Members of Parliament review the constitutionality of laws,
e) review the conflict of legislation with international treaties, and
f) perform other duties and authorities defined in the Constitution and in super majority laws.
(3) Acting pursuant to its jurisdiction in its competence under section b)-d) of paragraph (2), the Constitutional Court will annul laws and other legal norms, judicial decisions that it finds to be unconstitutional, pursuant to its jurisdiction under section e) of paragraph (2) annul laws or legal norms deemed to be in conflict with international treaties and will also rule on other issues set forth in super majority laws.
(4) Acting pursuant to its jurisdiction under section c)-d) of paragraph (2), the Constitutional Court shall review the constitutionality of laws on the State Budget and its implementation, on central taxes, fees and customs duties, pension and health care contributions, as well as on the content of the statues concerning uniform requirements on local taxes only if the petition refers exclusively to the right to life and human dignity, the right to the protection of personal data, the right to freedom of thought, conscience and religion or the right connected to the Hungarian citizenship, if the conditions defined for adopting and promulgating the law have not been met.
(5) The Constitutional Court is a body of 15 members, elected by Parliament for a period of twelve years by a two-third majority of the Members of Parliament. The Parliament will elect with a two-third majority of the Members of Parliament a President, with a mandate that lasts until the term of the judge’s mandate. Members of the Constitutional Court may not be members of a political party and may not engage in any political activities.
- László Sólyom (July 1, 1990 – November 24, 1998)
- János Németh (November 24, 1998 – July 31, 2003)
- András Holló (August 1, 2003 – November 12, 2005)
- Mihály Bihari (November 12, 2005 – July 2, 2008)
- Péter Paczolay (July 3, 2008 –)
The Hungarian Constitution declares that members of the Constitutional Court shall be elected by Parliament. It also determines the rules of such elections. Impartiality is guaranteed by having proposed members of the Constitutional Court to be put forward by a nominating committee consisting of one member each from the factions of parties represented in Parliament and shall be elected by a two-thirds majority of all Members of Parliament. Hungarian law provides that only jurists of outstanding theoretical knowledge or having at least twenty years of legal practice may be elected members of the Constitutional Court. Membership is for a term of nine years and members may be re-elected once. The office of judges of the Constitutional Court comes to an end when they reach the age of 70 years.
The current composition of the court includes the following judges:
- Péter Paczolay, President of the Constitutional Court
- András Holló, Vice President of the Constitutional Court
- Elemér Balogh
- András Bragyova
- László Kiss
- Péter Kovács
- Barnabás Lenkovics
- Miklós Lévay
- István Stumpf
- Mihály Bihari
The following judges were appointed at September 1, 2011:
- Egon Dienes-Oehm
- Béla Pokol
- Péter Szalay
- Mária Szívós
- István Balsai
Controversy over New Constitution
On the 1st of March 2013, Princeton University international constitutional law scholar and Hungary specialist Kim Lane Scheppele reported that the Hungarian ruling party's supermajority is re-introducing in one "mega-amendment" multiple constitutional amendments which had been introduced before and nullified by the Constitutional Court or changed at the insistence of European bodies. The new constitutional mega-amendment again puts an end to the independence of the judiciary, brings universities under still more governmental control, opens the door to political prosecutions, criminalizes homelessness, makes the recognition of religious groups dependent on their cooperation with the government and weakens human rights guarantees across the board. In addition, the constitution will now buffer the government from further financial sanctions by permitting it to pass on all fines for noncompliance with the constitution or with European law to the Hungarian population as special taxes, not payable by the normal state budget. The mega-amendment annuls all of the decisions made by the Court before 1 January 2012 so that they have no legal effect. Henceforth no longer can anyone in the country – neither the Constitutional Court, nor the ordinary courts, nor human rights groups nor ordinary citizens – rely on the Court’s prior string of rights-protecting decisions.
Mr. György Schöpflin—formerly Jean Monnet Professor of Politics at the School of Slavonic and East European Studies, University College London and currently member of the European Parliament for Viktor Orban's party, Fidesz—has stated that the assertions of Kim Lane Scheppele „are teeming with misunderstandings, errors of fact, misreadings and ill-will.” Analyzing the blog entry of the Princeton constitutional law professor, Mr. Ferenc Kumin—Deputy State Secretary for International Communication of the Hungarian Government—also states that on the one hand it has conceptual errors, because it constructs a narrative based on half-information gained only from opposition sources. Typical example of this is the case of homelessness, which is of course not criminalized in Hungary. The amendement declares that “in order to preserve the public order, public safety, public health and cultural values” the government may prohibit living in the streets, but the same amendment also says that the government is to ensure the right to housing, and the government has invested a considerable amount in shelters in the interest of the homeless as well as the general public. These are not mentioned in the blog entry of Miss Scheppele. On the other hand, according to Mr. Kumin, the entry is full of factual mistakes as well, of which the worst is the question of the decisions of the previous Court, which are and will be valid – contrary to Miss Scheppele's text. Therefore Mr. Kumin – quoting her other mistakes as well - concludes that the blog-entry did not meet the criteria of an objective analysis, and can be seen only as a political opinion.
On the 5th of March 2013, Michael Link, undersecretary in the German Foreign Ministry, in "Hungary must remain a country of the law," called on Hungary "to demonstrate that the country has an effective separation of power between the legislative and the judicial."
On the 6th of March 2013, Europe’s main human rights watchdog, Council of Europe President Thorbjorn Jagland, said that the amendments set to be voted on next week by Hungarian lawmakers may be incompatible with European legal principles and asked Hungary to postpone the approval of a series of constitutional amendments so legal experts can review the changes.
On the 7th of March, Deputy Prime Minister Navracsics sent letter to the Secretary General of the Council of Europe Thorbjorn Jagland, to give some additional written explanations to the Proposal on the Fourth Amendment to Fundamental Law of Hungary.
On the 8th of March, 2013. the government of the USA raised its concerns both about the content of the proposed amendments "as they could threaten the principles of institutional independence and checks and balances that are the hallmark of democratic governance" and about the process by which they were to be accepted: "[The USA] "urges the Government of Hungary and the Parliament to ensure that the process of considering amendments to the constitution demonstrates respect for the rule of law and judicial review, openness to the views of other stakeholders across Hungarian society, and continuing receptiveness to the expertise of the Council of Europe’s Venice Commission."
On the 8th of March 2013, in a letter to the European commission, Guido Westerwelle, the German foreign minister, and counterparts in Denmark, the Netherlands and Finland called for the European Union to be given new powers allowing it to freeze EU budget funds to a member state in breach of Europe's "fundamental values." On the same day, European Commission President Jose Manuel Barroso too expressed concerns to Prime Minister Viktor Orban over the amendment vote in Hungary’s parliament next week to change the constitution, arguing it contravenes EU rules in areas such as the judiciary.
On the 8th of March, Minister of Foreign Affairs, János Martonyi sent letter to the Minsters of Foreign Affairs of EU-member states, in which he gave details on the text of the amendment.
On the 11th of March, "Hungary's parliament, dominated by Prime Minister Viktor Orban's Fidesz party, adopted changes to the country's constitution on Monday despite warnings from the European Union and the U.S. government that the changes could weaken Hungary's democracy. The legislation was supported by 265 lawmakers in the 386-seat chamber, with 11 votes against and 33 abstentions."
In the New York Times column of Nobel Laureate economist Paul Krugman, Princeton University international constitutional scholar and Hungary specialist Professor Kim Lane Scheppele writes:
- "The Hungarian Parliament [on March 11, 2013] passed a 15-page amendment to its one-year-old constitution against a storm of protest from both home and abroad. If it is signed by the Hungarian President, János Áder, the “Fourth Amendment” will wipe out more than 20 years of Constitutional Court decisions protecting human rights and it will reverse concessions made to Europe over the last year of difficult bargaining as the Fideszgovernment has tightened its grip on power…. But Hungary’s allies should see through the fog of amendment. By now it should be clear that Prime Minister Viktor Orbán and his Fidesz party recognize no limitations in their quest for power."
Critiques have also been made in the official working documents of the European Parliament
and by the Venice Commission on Hungary.
- Constitutional economics
- Rule of law
- Rule According to Higher Law