The recent proposal for a fourth constitutional amendment
1. General background
In December, 2012, the Constitutional Court annulled several provisions of the so called ’Transitional Provisions to the Fundamental Law’, for formal, technical legal reasons, assessing that the Transitional Provisions contained rules which in fact were not transitional, but rather substantial ones. According to the Constitutional Court, these substantial rules, without incorporation into the main text of the Fundamental Law, could not be regarded as rules of constitutional value, even if the Parliament had the explicit intention to adopt the Transitional Provisions as legally equal to the Fundamental Law.
Following this decision of the Constitutional Court, the main aim of Proposal is to formally incorporate these rules, annulled for formal procedural reasons, into the text of the Fundamental Law itself. Besides, also in compliance with the Constitutional Court’s ruling, the constituent Parliament wishes to incorporate in the Fundamental Law not only the annulled provisions but the Transitional Provisions in their entirety, also including the non-annulled parts of them.
That is why the Proposal is, to a great extent, merely a technical amendment to the Fundamental Law, and most of its provisions do not differ from the former text of the Transitional Provisions or they are directly linked thereto. Accordingly, the significance and novelty of this Proposal should not be overestimated. The 15-page amendment in fact comprises only a few new provisions and cannot be regarded as brand new rules without former precedents of identical or very similar rules on constitutional level. The amendment concerns only 7 per cent of the text of the Fundamental Law.
I would like to emphasise that by transplanting the Transitional Provisions into the Fundamental Law the two-thirds parliamentary majority does not overrule the Constitutional Court, because in the decision of 45/2012 the Constitutional Court has not assessed substantial unconstitutionality of the Transitional Provisions. The Constitutional Court examined only the formal question of whether the rules of the Transitional Provisions are really transitional ones or not. The Constitutional Court came to the conclusion that substantial rules in the Transitional Provisions are beyond the authorization provided for by the Fundamental Law and for this reason they are not valid. The Constitutional Court explicitly set out in its decision that “Following the decision of the Constitutional Court, it is the task and the responsibility of the constituent power to clear up the situation after the partial annulment. The Parliament shall make an evident and clear legal situation. The Parliament shall revise the subject matters of the annulled non-transitional provisions and decide on which matters should be re-regulated and on which level of legal sources. That is also for the Parliament to decide on which provisions to be re-regulated should be incorporated into the Fundamental Law and which should be laid down on level of [ordinary or cardinal] Acts.” [Part V of the reasoning of the Constitutional Court decision of 45/2012. (XII. 29.)]
It should be underlined that overwhelming majority of the provisions in the Proposal does not restrict at all the margin of manoeuvre of future governments not having two-thirds majority in the Parliament for amending the Fundamental Law. The Proposal sets out its provisions in a way which provides a possibility, but does not oblige the future legislator to enact rules with a content aimed at by the present ruling parties.
2. Provisions of the Proposal concerning the Constitutional Court
The Proposal extends the circle of those entitled to initiate ex-post constitutionality review (in abstracto) of laws before the Constitutional Court; by virtue of the Proposal not only the ombudsman, but also the President of the Curia (Supreme Court) and the Supreme Prosecutor could turn to the Constitutional Court.
The Proposal contains that constitutionality of the Fundamental Law itself and any amendments thereto may be examined by the Constitutional Court from a procedural point of view, in order to check their compliance with procedural law requirements. This is a new competence for the Constitutional Court, because under the Fundamental Law so far it had no legal possibility at all for any review of the amendments to the Fundamental Law. The provision is in accordance with the case-law of Constitutional Court based on the former Constitution under which, for the last time in decision 61/2011, the Constitutional Court explicitly reinforced that it had no power to review in merits the amendments to the Constitution. Neither did the decision of 45/2012 on the Transitional Provisions overrule this former practice. Besides, the Proposal sets out a time limit of 30 days for this examination so as to avoid long-term uncertainty about the legal validity of norms of constitutional level. It must be noted that there is no constitution in Europe expressly stating that a Constitutional Court may even have the power to revise the constitution (or fundamental law) itself and only a few constitutions contain ’unchangeable provisions’. Therefore it is a noticeable element of the Proposal as it gives the right for the President to initiate the examination of the amendments to the Fundamental Law even before promulgation.
The Proposal builds in the Fundamental Law some principles of Constitutional Court procedure in line with the present practice of Constitutional Court (e.g. other party should also be heard; Court procedure is bound to the motion) and reinforces the publicity of the Court’s procedure. This regulation is common in Europe and several countries provide for these core principles in their constitutions (eg. publicity, hearing of parties in Cyprus, Ireland, etc.). Deadlines for the Court procedure, as introduced by the Proposal, can also be found in many European constitutions (eg. in France, Ireland, Poland, etc.).
Having regard to the possible new contexts of the Fundamental Law as compared to the previous Constitution, the Proposal explicitly states that Constitutional Court decisions made before the entry into force of the Fundamental Law (1 January 2012) shall cease to be in force. This draft provision does not affect the force of the Constitutional Court decisions in the sense that laws formerly nullified by these decisions will not come into force again, nor does it mean that the Constitutional Court may not come to the same conclusion in a specific future case as in a case before the Fundamental Law. However, it means that should the Constitutional Court intend to use its previous assessments, it would not be enough to merely referring back to a former decision, but it would be obliged to give a detailed legal reasoning in the light of the Fundamental Law. It should also be noted that this draft provision can also be regarded as a rule broadening the margin of manoeuvre of the Constitutional Court, because the Court will be more free to decide whether it would like to simply repeat the legal reasoning of its former decisions or work out new arguments not bound by the case-law built on the previous Constitution. It should also be noted that such a provision is not by any means exceptional in European constitutions. In fact, Article 239 (3) of the Polish Constitution (1997) declares: „On the day on which the Constitution comes into force, resolutions of the Constitutional Tribunal on interpretation of statutes shall lose their universally binding force (…)”
The Proposal does not comprise a new restriction on the competences of the Constitutional Court by introducing a new Article 37 (5) in the Fundamental Law. On the contrary, this new Article repeats the provision already included in the Transitional Provisions, with an important modification: in fact the Constitutional Court will have the power to ’pro futuro’ abolish ’financial’ laws enacted even in the period of the restriction rule when the state debt no longer exceeds half of the GDP. Therefore this provision can be seen as a clarifying one which expands the rights of the Court concerning the transition from the temporary state debt rule. (The original provision of the Transitional Provisions maintained the restriction even after the transitional period for the acts enacted before.)
3. Provisions of the Proposal concerning the judicial system
a) Transferring court cases
As regards the competence of the President of the National Judicial Office to transfer a case from one court to another the Proposal contains a provision similar to that included in the Transitional Provisions. However, this rule has now been completed by one new additional guarantee. According to the new provision, not any cases, but only cases (groups of cases) to be defined by a cardinal Act may be referred to a court in deviation from the general rules of competence. For this reason, the mere incorporation of this rule into the main text of the Fundamental Law does not affect at all the existence of legal guarantees promised to the Council of Europe (Venice Commission). These legal guarantees remain unchanged and they continue to be in force in the relevant Acts, according to which
the National Judicial Council (self-governing body of the judges) shall determine the principles to be applied when appointing a proceeding court
the President of the National Judicial Office shall publish the decision on the appointment of the proceeding court on the official and publicly available website of the courts and also directly inform the parties involved in the proceeding
the parties involved in the case may lodge an appeal against the decision to the Curia (the decision of the Curia adjudicating the appeal shall also be published on the internet)
there is a possibility for lodging a constitutional complaint to the Constitutional Court against the final decision of the Curia
The provision aims at ensuring the fundamental right to a court decision taken within a reasonable time and balancing the workload between courts. In theory there could be two ways to ensure the proportionate workload of courts: either the judges or the cases should be moved. The judges, because of their personal independence, may be transferred to another court only in case there is a vacancy in the relevant court. Thus this solution does not provide for a quick reaction to organizational problems caused by unbalanced workload. According to the other option the cases should be moved. The Fundamental Law chooses this option. Having regard that the Proposal defines the aim of the provision, the authorization for the President of the National Judicial Office will not legitimate the transfer of cases as soon as the aim (balanced distribution of caseload) has been achieved.
Besides, it should be noted that, by virtue of a motion for amendment to the Proposal, the Proposal would not give the possibility for the Supreme Prosecutor to file an indictment with a court other than a court of general competence. The Parliament supported this motion for amendment, so only the President of the National Judicial Office will have the possibility for moving the cases between courts.
b) Retirement age of judges and prosecutors
The Proposal does not affect the constitutional provisions in force which set out that with the exception of the President of the Curia and the Supreme Prosecutor, no judge and prosecutor may serve who is older than the general retirement age. The modification of these provisions is not necessary because the Fundamental Law does not refer to a concrete age, but only to a general retirement age, which can be specified also in a cardinal Act. Therefore the Government submitted to the Parliament Proposal no. T/9598, which defines the general retirement age judges, prosecutors and notatries in compliance with the rulings of the Constitutional Court and the European Court of Justice. In the sense of Proposal no. T/9598, the general retirement age would be gradually and proportionately reduced. The Parliament has already discussed Proposal no. T/9598 and the final vote took place on 11th March. According to Proposal no. T/9598, including its approved amendments, the upper age limit for judges and prosecutors will be 65 from 1st January 2023, after a transitional period that is aligned with that of the Act on old age social security pension. Before 1st January 2023 an appropriate transitional period will be provided for. During this period the upper age limit for judges and prosecutors will be lowered according to a scale which corresponds to the scale of the increase of the social security retirement age.
During the transitional period (before 1st January 2023) upon reaching his/her retirement age the judge will be entitled to decide whether, until he/she reaches the upper age limit,
– remains at his/her post (the service relation is upheld),
– transfers to a “reserve pool” (the service relation is upheld with particularities) or
The same applies to judges the service relation of which had been terminated on the basis of the regulation subsequently annulled by the Constitutional Court and to prosecutors the service relation of which had been terminated during 2012 on the basis of the new regulation. The judges and prosecutors will be entitled by virtue of the law to decide, without the need to initiate legal proceedings, whether they wish to be reinstated, transfer to the reserve pool or remain retired. Judges who have held the position of president of chamber shall be automatically reinstated in these positions, while other court leader positions will only be reinstated – upon request of the judge concerned – if the position has not been occupied in the meantime. No other restrictions will apply to the reinstatement or new appointments to leader positions. The judges in question will not have to undergo an aptitude test in order to be reinstated. Reinstated judges will be entitled to their full salary for the time that has elapsed from the termination. In the case of former court leaders who cannot be reinstated in these positions, the remuneration relating to the position will be granted for the original term of appointment as court leader. Any damage in excess of the remuneration may be claimed before court.
Reinstatement in the previous „service quarters” means in fact that the judge in question will be reinstated to the same court, in the same position previously held (see above the question of presidents of chambers and other leader positions), and will work in the same field of law. Their service relation will be considered to be uninterrupted (which is relevant to promotions and grades of salary). The term „service quarters” is a misleading translation of the terminus technicus used by the Hungarian legislation [beosztási hely], in the context of the legislation it is clear that this terms refers to the former position (same court, same position, same filed of law).
The “reserve pool” would be a temporary institution (until 1st January 2023), it would be available for the period between the social security retirement age and the (gradually decreasing) upper age limit. If the judges choose the “reserve pool”, the service relation of the judge or prosecutor transferred to the “reserve pool” is upheld, during the period of reserve, the judge or prosecutor transferred to the “reserve pool” shall be entitled to a supplementary remuneration that, added to the old age pension ensures a remuneration equivalent to 80% of the previous remuneration. If actual judicial activity/work is executed, the remuneration shall be equivalent to the previous remuneration. The judge or prosecutor transferred to the “reserve pool” may be called to execute actual judicial activity/work for a period the maximum of which is fixed by law – 2 years in a 3 year period.
The judges the service relation of which had been terminated on the basis of the regulation subsequently annulled by the Constitutional Court and prosecutors the service relation of which had been terminated during 2012 on the basis of the new regulation, who do not wish their service relation to be reinstated and wish to retire shall be entitled by virtue of the law to a lump sum compensation equivalent to 12 month’s salary. Any damages in excess may be claimed before court.
4. Provisions of the Proposal concerning the Churches
In addition to the individual or collective exercise of the right to freedom of religion by all persons and organisations, the Proposal also contains a rule according to which the State may provide special “Church” status with additional rights for organisations engaged in religious activities. That is for the Parliament to recognise these Churches provided that they meet the requirements set out in a cardinal Act. These requirements will be defined according to the new Article VII (4) of the Fundamental Law which enumerates permanent operation, social support and eligibility for cooperation as requirements of recognition.
This provision has been transplanted from the former Transitional Provisions. However, by virtue of a motion for amendment adopted by the Parliament, it defines a new possible element among the criteria of recognition. This new criterion is the eligibility for cooperation with the State in order to achieve community goals, having regard that the aim of this special “Church” status is that the denominations recognised as Churches may practice their activities for community goals more efficiently. The criterion of suitability for cooperation necessarily provides a certain margin of appreciation for the Parliament. However, this margin is reasonable for the Parliament to have the right to freely select (based on objective, reasonable criteria) the denominations which it regards suitable for cooperating with the State. The detailed rules on the recognition shall be laid down in a cardinal Act.
When deciding on suitability for cooperation, the Parliament may not assess the entity of the denominations from a theological aspect. The recognition does not concern the own theological determination of denominations. Denominations whose request has been denied by the Parliament can operate as a church, in theological terms, by their own internal law. The definition in the state law for the special “Church” status does not correspond with the theological definition of the Church; this distinction also follows from the separation of State and denominations.
Providing or denying the special “Church” status does not concern the right of the denominations to freedom of religion as set out in Article 9 and 14 of the European Convention on Human Rights. This right follows from Article VII (1) of the Fundamental Law therefore it is not concerned by the eventual lack of parliamentary recognition. Those denominations whose request is denied by the Parliament can freely profess their religion or any other belief as a Church, but not as a recognized Church. The law ensures a specific legal status for these denominations named as “association engaged in religious activities as a primary goal”. Although this legal status has a name similar to civil association, it provides more guarantees for the denominations than other non-religious associations. This legal status allows for these denominations to obtain (higher) state subsidies for the operation of its educational, health, social and other institutions. Denominations not recognised as Churches shall not be supervised or controlled by the State and they shall be autonomous. The new Article VII (3) of the Fundamental Law makes it clear that the separated operation applies to both Churches having the special “Church” status and any other denominations, without reference to professing their religion or any other belief either individually or commonly.
The distinction between recognised and non-recognised Churches has also been found constitutional by the Constitutional Court. The Court has stated that there is no constitutional requirement for all Churches should have the same entitlements or the cooperation of the State should be of the same extent with every denomination provided that the distinctions are based on reasonable grounds. The Proposal aims to serve the Constitutional Court’s decision by establishing the special “Church” status in the Fundamental Law, setting out objective and reasonable conditions for making distinction between denominations and providing a legal remedy, called constitutional complaint, against the regulations of recognition.
As regards the recognition rules, it should be noted that similar or more rigorous system can be found in Lithuania, Austria, Belgium and Spain. In Lithuania the Parliament, the Seimas may recognize denominations. The Seimas may recognize the denominations which have been operating for at least 25 years as an association. If the Parliament denies the recognition, the request could be tabled only after 10 years. In Hungary 20 years operation is required and a renewed request may be tabled after 1 year. In Austria the competence of recognition belongs to a minister besides the Parliament may recognize any denominations in an Act, as happened for example in the case of Syrian Orthodox Church. In Belgium recognition must be enacted in a federal law and there is no legal remedy against denying recognition. The non-recognized Churches operate as public association. Historical Churches in Spain have an enacted contract with the State; requests of other denominations are considered by the Ministry of Justice. Moreover there are some members of the European Union who has defined a prevailing religion in its constitutions. (For example in Denmark and Finland the Evangelical Lutheran Church, in Greece the Eastern Orthodox Church of Christ, in Malta the Roman Catholic Apostolic Church)
After the adoption of the Proposal the statutory provisions will also be reviewed in the light of the decision of the Constitutional Court. The amendment will re-regulate the procedure of recognition.
5. Fighting against hate speech
The Proposal supplements the rules of the Fundamental Law on freedom of expression with two significant elements.
The first amendment – according to which the exercise of freedom of expression shall not be aimed at the violation of human dignity – incorporates the practice elaborated earlier by the Constitutional Court in the Fundamental Law. In its decision no. 36/1994, the Constitutional Court stated explicitly as a principle that „human dignity, which is under constitutional protection, may put a limit on the freedom of expression”. Hence the Proposal only enrols this constitutional principle in the Fundamental Law and does not overrule the constitutional interpretations, stipulated by the Constitutional Court prior to the adoption of the Proposal, regarding, for instance, the constitutional frames of the free criticism of politicians.
The aim of the second innovation of the Proposal is to secure that individuals belonging to a community may bring a civil law action before the court because of hate speech concerning their community. The Constitutional Court emphasised several times – for the first time in decision no. 30/1992 – that „dignity of communities may put a constitutional limit on freedom of expression”. Though the Constitutional Court laid down that dignity of communities cannot be interpreted as a fundamental right, it recognised that individuals belonging to a community have the unalienable right to be protected by law against offences injuring their human dignity, such as hate speech concerning one’s community (decision no. 96/2008 of the Constitutional Court). It has to be mentioned that this latter decision of the Constitutional Court explicitly stated that it may be in conformity with the Constitution to provide the possibility for bringing a civil law action before the court because of hate speech concerning one’s community. Thus it is not the Proposal that introduces the theory of this legal remedy in the Hungarian constitutional system. The reason for this provision is the recently increased occurrence of hate speech against Jewish and Roma people in the public debates: the Parliament is committed to put an end to racist, anti-Semite speeches in the public discourse. It should be noted that the recommendation of the Council of Europe on „Hate Speech” [Recommendation No. R (97) 20] adopted in 1997 contains a proposal, which encourages governments of member states to „enhance the possibilities to combat hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction”.
It is relevant to underline that in Europe at least 14 countries penalize hate speech including Belgium, France, Germany, Switzerland, Sweden, the Netherlands, the United Kingdom, or Serbia and Croatia among the neighbours of Hungary. For instance according to the German criminal code the incitement to hatred against segments of the population (like national, ethnic, racial or religious groups) is punishable with imprisonment (insulting, maliciously maligning, or defaming ).
Instead of criminal punishment, which is dominant in European legislations, in the case of the Proposal the constitutional power leaves it to instruments of the civil law to provide remedy for certain forms of hate speech. It has to be emphasized that civil law courts will have to consider by each case, whether a violation of personality rights occurred and in the course of the civil law process the courts have to take into account the specific requirements of the lawsuits referring to personality rights. One has to take into consideration that the Constitutional Court will have the opportunity henceforward to annul the rules adopted in any law if those are not in line with the Fundamental Law.
Regarding to the legal protection of the personality rights of the members of the Hungarian nation it has to be taken into account that under the Hungarian Criminal Code the hate crimes against the members of the Hungarian nation are traditionally penalized. The criminal offence of incitement against a community [Section 269. § of the Criminal Code (Act IV of 1978)] has been including since 15 October 1989 also the offences committed against the Hungarian nation. It appeared in the definition of the criminal offence of violence against a member of a community on 15 June 1996 that any person who assaults somebody else because he or she belongs or is supposed to belong to a national group commits this crime. It is apparent therefore that the Hungarian criminal law penalizes hate crimes committed not only against minority groups but also against the Hungarian nation, as well as the members of the Hungarian nation. So the Proposal merely reflects to these legal traditions enabling to bring a civil law action before the court because of hate crime concerning also the Hungarian nation.
Ultimately it has to be mentioned that the representatives of the communities, which would be protected by the new legal instruments to be introduced by the Proposal, have welcomed the innovations (Egységes Magyarországi Izraelita Hitközség és a Tett és Védelem Alapítvány).
6. Provisions of the Proposal concerning the higher education
In order to the efficient management of public funds, the Proposal gives a power for the Government to supervise the financial management of state institutions of higher education financed from the State Budget. However, the Proposal explicitly sets out the autonomy of the higher education in the field of research and education, so the financial supervision to be exercised within the framework of a parliamentary Act may not affect the autonomy of research and education.
The Proposal gives a possibility for the legislator to adopt an Act which provides for a state subsidy only for those students in higher education who assume the obligation of being employed, for a certain proportionate period after (but not necessarily directly after) finishing their studies, by a Hungarian employer. The underlying principle of the amendment is that exercising the right to education with a state subsidy (with the help of the Hungarian taxpayers) should serve the interests of both the individual and the community. The reason for setting out this provision in the Fundamental Law and not only in an ordinary law is that it has a close link to several fundamental rights and represents a symbolical message of responsibility towards the community. The Proposal cannot be regarded to overrule the Decision 32/2012 of the Constitutional Court, since this decision did not examine the substantive constitutionality of the rules which may be derived, by virtue of the Proposal, from the Fundamental Law. The decision of the Constitutional Court has been based on only formal reason stating that a government decree has not been an adequate level for regulating this subject matter.
It should be emphasised that the state-financed students are obviously not prevented from being employed outside Hungary after their graduation, but in such case, they must pay the tuition fee subsequently. Under the relevant Act, such payment obligation becomes due twenty years after graduation, and the student may be authorised upon request to make partial payment for a term of ten or fifteen years depending on the amount of grant. Another essential point is that a student with a (partial) grant who has only completed a part of domestic employment must only repay the amount which covers the non-completed portion. It should also be emphasised that the term of employment shall include the disbursement period of the pregnancy and child bearing aid, child care aid and child care allowance and the period when the former student is a job seeker and is hence entitled to a benefit. In addition, the Act defines further cases of exemption.
In order to help the students who need financial assistance, but would not like to make a commitment to work in Hungary for a definite period, the Government elaborated a reduced-rate, preferential loan construction (Student Loan 2).
It should also be highlighted that in a number of European countries (e.g. Portugal, Netherlands, United Kingdom, Italy) the higher education is only available for those paying a tuition fee. The Hungarian legislation aims at providing a possibility for avoiding tuition fee, while ensuring the proper financing of higher education and the social responsibility.
The Hungarian higher education is open to all applicants, admission is based on merit. The „student contract” is only one of the different ways in which young people may participate in higher education. All training programs are open to young people in self-financed form, eventually financed from student loan. The conclusion of the student contract is voluntary, based on free choice.
The student contract must include measures that are proportional with the public policy objectives. The public policy objective is a requital of state scholarship for the general public. The diploma of the student is the result of the investment of tax payers, which results in private benefits, on the other hand, public benefits of these investments must also be ensured. This is also in the interest of the sustainability of the financing of state scholarship. The public benefit is the work done, service voluntarily rendered for the benefit of the Hungarian society. It is incorrect to assume that the aim of the provisions is to restrict the free movement of workers. On the basis of the student contract one may choose not to repay the scholarship but to meet the obligation by employment. The decision is always in the hands of the student, there are always more options available. No legal rule obliges him/her to work in Hungary; no sanctions are foreseen in case he/she chooses not to work in Hungary, but in this case, the scholarship has to be repaid. In other words, the financial support offered by the student contract is a conditional recoverable subvention.
7. Provisions of the Proposal concerning the electoral campaign advertisings
In order to reduce the campaign cost and create equal opportunities for the parties, the Proposal and a motion for its amendment set out new rules for political advertisings. The Proposal prohibits paid political advertising both in public and commercial media including television and radio channels. This general rule for political advertisements extends both for the electoral campaign period and the period outside the campaign. However, the Proposal does not intend to prevent political advertising from being published by broadcasters free of charge and on equal basis. Besides, the Proposal does not affect at all the publication and dissemination of posters, leaflets and other similar materials.
As regards the electoral campaign period, the Proposal obliges the public (non-commercial) broadcasters to ensure free airtime on equal basis for political advertisings. This solution, excluding paid political advertisings and, as a positive obligation, ensuring free airtime on equal basis in campaign period is similar to the method followed by a number of European countries (e. g. France) as also presented by the European Court of Human Rights in its judgement ’TV Vest AS & Rogaland Pensjonistparti v. Norway’ in 2008. In this case, where the facts were not identical to the rules laid down in the Proposal not prohibiting the political advertising in the media, the Court noted that there was no European consensus in this area and accepted that lack of consensus spoke in favour of granting States greater discretion than would normally be allowed in decisions with regard to restrictions on political debate.
8. Provisions of the Proposal concerning the family relationship
The Proposal highlights the marriage and the ‘parent-child’ relationship as bases of the traditional family relationship. According to the constituent Parliament, the protection of the traditional family is of special importance, as this is the basis of the survival of the nation. However, this provision does not exclude the protection of other family models, which may also be and at the same time, following from other constitutional provisions, must be regulated in form of Acts. Article VI of the Fundamental Law, a new provision in force since 1 January 2012 as compared to the former Constitution, provides that everyone shall have the right to have their private and family life, home, communications and good reputation respected. Besides, Article II of the Fundamental Law sets out that human dignity shall be inviolable. In the Hungarian constitutional context human dignity, also protected under the former Constitution, has a high relevance concerning the different kind of partnerships, cohabitation and family models, since, in lack of an explicit general protection of private and family life in the former Constitution, this was the right from which the need for the recognition and respecting various partnerships (for example registered partnership for same-sex couples) could be derived. The notion of human dignity and in addition to this the new Article VI of the Fundamental Law continues to require protection also for persons not covered by the traditional notion of family. In essence this system is similar to that of the European Convention on Human Rights, which, for example, highlights the right of a man and a woman to marry in its Article 12, but also provides for protection of other partnerships under its Article 8. The above-mentioned provisions of the Fundamental Law and also its Article Q requiring a harmony between international law and national law are guarantees for that Proposal is without prejudice to the respect and non-discrimination of people not covered by the legal concept of a traditional family.
Besides, it should also be emphasised that the Proposal only defines the basis for family ties, not family itself. As regards the relationship between parents and children, it is most often based on descent but may also arise from adoption and adoptive guardianship. The Proposal does not prevent anyone from having a child either in biological ways or in legal ways of adoption. Nor does it exclude that a person, who has no biological or legal relationship with a child, may be considered as a member a family (in legal terms), if he or she lives in a factual partnership with a person having a child.
To underpin that concerns regarding the Proposal and its possible consequences are unfounded, it should be noted that the Hungarian Parliament has recently adopted the new Civil Code, which provides extensive rights, even more extensive ones than the former Civil Code, for those living in partnerships without marriage, and does not affect the rules on same-sex couples’ registered partnership adopted in 2009, under the socialist government.
9. Provisions of the Proposal concerning the use of public areas (homelessness)
The Proposal neither aims to criminalize homeless people nor does it contain general prohibition regarding homelessness. The Proposal provides the State and the local governments with a constitutional possibility of regulation: the Proposal entitles them to prohibit permanent living in specific areas (but only in certain and not all areas) of public spaces, when necessary in the interest of protecting public order, public safety, public health and cultural values.
Besides providing the State and the local governments with a constitutional possibility of regulation, the Proposal – taking into account the decision of the Constitutional Court [38/2012. (XI. 14.)] – determines guarantees. The right to adopt a restrictive regulation by the State and local governments is not unconditional, it can be used solely under the condition that the interest of protecting public order, public safety, public health and cultural values necessitates it.
For example, if in Budapest the local government decides to prohibit permanent living at railway stations, metro stations or at public areas around the Parliament, the municipal ordinances will probably prove to be constitutional. However, a prohibition referring to an inhabited area without any cultural values will probably be unconstitutional, and the Constitutional Court or the Curia (Supreme Court) will repeal such municipal ordinances.
The second guarantee requirement is that a prohibition of permanent living may be issued only to specific areas, but only to certain and not all areas of public spaces. If the prohibition extends to the whole territory of the local government, the Constitutional Court or the Curia (Supreme Court) will repeal the prohibition as unconstitutional municipal ordinance.
The third guarantee requirement is that the prohibition must have a legal form (law or municipal ordinances), which can be challenged before the Constitutional Court or the Curia (Supreme Court). The Constitutional Court or the Curia (Supreme Court) can review these rules without any restrictions. If the laws or municipal ordinances do not correspond to the Fundamental Law, the Constitutional Court or the Curia (Supreme Court) will repeal those.
In Europe there are several countries which prohibit permanent living of homeless people in certain areas of public spaces. In Belgium, for example, the law prohibits people to set up and live in tents in inhabited areas and cities. Similar restrictions are applied in the Czech Republic.
Finally, it is very important to note, that the Proposal obliges the State and the local governments to ensure accommodation for all homeless people.
The Proposal does not criminalize homeless people and nor does it contain general prohibition regarding homelessness. On the contrary the Proposal obliges the State and the local governments to ensure accommodation for all unsheltered people. Taking into account the accommodation provided for by the State and local governments, the Proposal entitles them to prohibit permanent living in certain parts (but only in certain and not all parts) of public areas where necessary in the interests of protecting public order, public safety, public health and cultural values. The prohibition must have a legal form which can be challenged before the Constitutional Court.
10. Provisions of the Proposal concerning the communist dictatorship
In adopting the provisions of the Transitional Provisions about the communist dictatorship, the proposal sets out some general considerations and provides that a realistic revelation of the functioning of communist dictatorship and society’s sense of justice shall be ensured according to specific normative provisions as set out in the proposal. In other words, the proposal implies nothing more than the Transitional Provisions: setting up the Committee of National Memory, considering the holders of power of the dictatorship in the same way as public figures in order to realistically revealing the past, the possibility to reduce the outstandingly high benefits of certain (former) leaders of the dictatorship and excluding statutory limitation for certain serious crimes committed in the name, interest or with the approval of the party state in the period of communist dictatorship. The latter proposal does not violate the principle of “nullum crimen sine lege” as it only covers acts committed during the communist dictatorship which were punishable by the Criminal Code in force at the time the crimes were perpetrated but were left unprosecuted due to a political interest of the party state. Also, the proposal takes into consideration the period between 2 May 1990 and the coming into force of the Fundamental Law. Specifically, the democratic state is only given as much additional time to prosecute the affected crime after the coming into force of the Fundamental Law as it was deprived of during the period of the communist dictatorship.
In addition, the proposal provides that the documents of the successive communist state parties and of the organisations established with their contribution and/or existing under their influence shall be deposited in public archives.
11. Extraordinary taxes
The Proposal describes the – narrowly defined – cases in which levying an extraordinary tax shall be deemed necessary. This provision has been transplanted from the former Transitional Provisions.
First of all, it shall be emphasized that the provision concerned is applicable only until the level of state debt is above 50 percent of the annual GDP. The reason of the limitation is that when the country’s fiscal situation is not yet stable, expenditures stemming from unforeseen decisions beyond the competence of the government (particularly decisions of domestic or international courts) shall be balanced immediately with revenues in order to meet the euro convergence criteria for budget deficit and debt-to-GDP ratio.
However, the proposal limits the application of extraordinary taxation for the mentioned purpose. If the state budget contains enough resources to fulfil the financial duties determined in the decision (which can be achieved also by rearrangement of budgetary expenses), the taxation may be avoided.
Moreover, the eventual application of the Proposal’s mentioned provision confers no additional right to the legislator as the Parliament is able to pass a law introducing a new kind of tax at any time. Additionally, the extraordinary nature of the tax does not mean that ordinary guarantees of taxation can be set aside. The law adopted upon the provision concerned shall also meet the procedural and substantive requirements defined in the Fundamental Law (e.g. legal certainty, non-discrimination).
1 „The Constitutional Court may not revise and annull any provisions of the Constitution. Once a provision has been adopted by two-thirds majority of the Members of Parliament and has become part of the Constitution, it is per definitionem excluded to assess that this provision is in contradiction with the Constitution. (…) In the system of checks and balances the Constitutional Court has no unlimited power. That is why the Constitutional Court has no competence to review the Constitution and new norms amending the Constitution without an explicit authorization by the Constitution.” [61/2011. (VII. 13.)]