Editor’s Note: Today we publish the 2016 Report on Hungarian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Eszter Bodnár, Assistant Professor at Eötvös Loránd University; Fruzsina Gárdos-Orosz, Senior Research Fellow at the Hungarian Academy of Sciences Centre for Social Sciences; Zoltán Pozsár-Szentmiklósy, Assistant Professor at Eötvös Loránd University
The Hungarian Constitutional Court (Court, CC) finished 355 cases in 2016. Only one-fourth of them resulted in a decision on the merits, and only a fragment ended with an annulment of the unconstitutional legal act or court decision.
In this year-in-review, we would like to give a short overview of the most important decisions of the Court in 2016 and give some information about the political and legal background where the Court operates. We also point out the most important controversies that characterize this year’s case law and seek some conclusions.
II. The Constitution and the Constitutional Court
The Hungarian Fundamental Law effective from 1 January 2012 and Act CLI of 2011 on the Constitutional Court have significantly modified the competencies of the Constitutional Court and the role of the different institutions in initiating constitutional review. Changes implemented already by the amendments to the former Constitution in 2010 and 2011 stayed in force concerning the government coalition gaining fundamental influence in nominating judges and limiting the competence of the Court regarding economic and financial constitutionality issues. The president of the Court was formerly elected by the judges for three years, but with the reform, the president became elected by the Parliament for the duration of the whole term of his office. Finally, an amendment raised the number of judges from 11 to 15 without any justifiable pressing need.
Among several changes, the Fundamental Law introduced three types of constitutional complaints and abolished the formerly existing actio popularis. The system of actio popularis meant that it was a legal possibility for everyone to turn to the Constitutional Court without personal interest claiming that law, a legal provision or regulation was contrary to a constitutional provision (abstract ex-post facto review).
The solemn aim of the new constitutional complaint mechanisms was to protect against personal injuries caused by ordinary courts and provide a possibility for constitutional review also in cases where the complainant cannot turn to the ordinary court. Moreover, the Constitutional Court may supervise the constitutionality of legal provisions when applied in certain judicial cases and lead to an unconstitutional court decision. Judicial referral as it existed before 2012 stayed in force, which means that judges in pending cases turn to the Constitutional Court in case they state that an applicable piece of law is unconstitutional.
Originally, besides the ombudsman (who initiated almost all procedures of this kind after 2012), the Government and a one-fourth minority of the MPs (from 2010 the latter would need the cooperation of all parliamentary opposition groups) were entitled to initiate the abstract ex-post facto review procedure of the Constitutional Court. From March 2013, with the entering 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.
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