2 The Lawyer Briefing | 28 May 2012 HUNGARY Constitutional ......complaints, may not supervise the...
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2 The Lawyer Briefing | 28 May 2012 HUNGARY In effect since 1 January 2012, the new Hungarian Constitution heralded significant changes to the competencies of the country’s Constitutional Court. The most important of these was introducing the concept of ‘real’ or ‘individual’ constitutional complaint. As a result, the protection of fundamental rights is expected to be enhanced, while the Constitution is likely to play a greater role in the operation of courts as well as in everyday life. Normative and individual complaints In general, a constitutional complaint means the right of an individual (natural persons, companies and other legal persons) to have recourse to a constitutional body if their fundamental rights are violated. The constitutional complaint provided by the previous Constitution allowed only for a rather abstract and normative type of recourse, as such a complaint could be filed only if a legal instrument applied in an individual case was alleged to be unconstitutional. The Constitutional Court was not authorised to examine the constitutionality of individual decisions – its competence was limited to analysing the conformity of the legal instrument in the given case. A ‘real’ constitutional complaint gives individuals the right to contest court decisions in the event of an alleged violation of their fundamental rights under the Constitution. Since 2012 the competencies of the Constitutional Court have been extended to encompass such individual constitutional complaints. While the Constitution allows for filing normative complaints too, the court is entitled to supervise the constitutional compliance of individual decisions. The scope of contestable decisions (including the definition of ‘individual cases’) and other conditions of filing are settled by Act CLI/2011 on the Constitutional Court. Preconditions of filing Pursuant to the act, a person concerned by an individual case (meaning a court procedure that concerns rights, obligations, rightful interests or the legal status of persons) may file a constitutional complaint against an unconstitutional court decision if (i) the decision was adopted on the merits or it finishes the procedure; (ii) the decision is alleged to violate any of the fundamental rights of the person governed by the Constitution; or (iii) the complainant has no legal remedy available or had recourse to all legal remedies available under law. Complaints can be filed within 60 days (subjective deadline) of the delivery of the decision, but no filing can be made after the 180th day (objective deadline). Filings are free of charges or stamp duties. The Constitutional Court, on request and until adopting a decision, has the right to suspend enforcement of the decision contested and anyone filing a constitutional complaint must have a legal representative. To limit caseload, the Constitutional Court has some discretion as to whether or not a complaint can be admitted. The Act provides that the court shall admit a complaint if the violation of the constitutional right has a material influence on the court decision or the issue raised in the complaint qualifies as a material constitutional matter. Critics warn of the possibility of arbitrary discrimination and further controversies may arise due to the fact that the court has no deadline to address complaints – the act simply provides that the court shall decide about the complaint within a ‘reasonable deadline’. Rationale and challenge Pursuant to the reasoning of the Constitution and the act, the purpose of regulating individual constitutional complaints was not to enable a general ‘highest instance’ in court proceedings. The Constitutional Court, within the scope of individual complaints, may not supervise the application of legal instruments that are otherwise in conformity with the Constitution. The Constitutional Court also may not supervise the facts or evidence in cases. Rather, it should examine conformity with regard to the operation of the law. It has the right to annul court decisions, for example, if the interpretation of an otherwise constitutional legal instrument by the court qualifies as unconstitutional or arbitrary due to a violation of fundamental rights. From the point of view of the Constitutional Court, the broadened scope of its competence presents a serious challenge. While constitutional principles and definitions laid down in the past 20 years may be invoked in individual cases, the practices evolved during the supervision of unconstitutional legal instruments may have less significance and need reconsideration when it comes to individual complaints. In this regard, the remarkable achievements of Germany’s Bundesverfassungsgericht and the European Court of Human Rights in Strasbourg will provide valuable guidance. Constitutionalcomplaints Following recent reforms, individuals can have court decisions tried vis-à-vis the Constitution Nagy és Trócsányi Ügyvédi Iroda H-1126 Budapest, Ugocsa u. 4/B Tel: +36-1-487-87-00 Fax: +36-1-487-87-01 Email: [email protected] Web: www.nt.hu Tamás Pásztor is an associate at Nagy és Trócsányi
Transcript of 2 The Lawyer Briefing | 28 May 2012 HUNGARY Constitutional ......complaints, may not supervise the...
2 The Lawyer Briefing | 28 May 2012
HUNGARY
In effect since 1 January 2012, the new HungarianConstitution heralded significant changes to thecompetencies of the country’s Constitutional Court.The most important of these was introducing theconcept of ‘real’ or ‘individual’ constitutionalcomplaint. As a result, the protection of fundamentalrights is expected to be enhanced, while theConstitution is likely to play a greater role in theoperation of courts as well as in everyday life.
Normative and individual complaintsIn general, a constitutional complaint means the right of an individual (natural persons, companies and other legal persons) to have recourse to aconstitutional body if their fundamental rights are violated.
The constitutional complaint provided by theprevious Constitution allowed only for a ratherabstract and normative type of recourse, as such acomplaint could be filed only if a legal instrumentapplied in an individual case was alleged to beunconstitutional. The Constitutional Court was notauthorised to examine the constitutionality ofindividual decisions – its competence was limited toanalysing the conformity of the legal instrument inthe given case.
A ‘real’ constitutional complaint gives individualsthe right to contest court decisions in the event of analleged violation of their fundamental rights underthe Constitution. Since 2012 the competencies of the Constitutional Court have been extended toencompass such individual constitutionalcomplaints. While the Constitution allows for filingnormative complaints too, the court is entitled tosupervise the constitutional compliance of individualdecisions. The scope of contestable decisions(including the definition of ‘individual cases’) andother conditions of filing are settled by Act CLI/2011on the Constitutional Court.
Preconditions of filingPursuant to the act, a person concerned by anindividual case (meaning a court procedure thatconcerns rights, obligations, rightful interests or thelegal status of persons) may file a constitutionalcomplaint against an unconstitutional court decisionif (i) the decision was adopted on the merits or itfinishes the procedure; (ii) the decision is alleged toviolate any of the fundamental rights of the persongoverned by the Constitution; or (iii) the complainanthas no legal remedy available or had recourse to alllegal remedies available under law. Complaints can
be filed within 60 days (subjective deadline) of thedelivery of the decision, but no filing can be madeafter the 180th day (objective deadline). Filings arefree of charges or stamp duties. The ConstitutionalCourt, on request and until adopting a decision, hasthe right to suspend enforcement of the decisioncontested and anyone filing a constitutionalcomplaint must have a legal representative.
To limit caseload, the Constitutional Court hassome discretion as to whether or not a complaint canbe admitted. The Act provides that the court shalladmit a complaint if the violation of the constitutionalright has a material influence on the court decision orthe issue raised in the complaint qualifies as amaterial constitutional matter.
Critics warn of the possibility of arbitrarydiscrimination and further controversies may arisedue to the fact that the court has no deadline toaddress complaints – the act simply provides that the court shall decide about the complaint within a‘reasonable deadline’.
Rationale and challengePursuant to the reasoning of the Constitution and the act, the purpose of regulating individualconstitutional complaints was not to enable a general ‘highest instance’ in court proceedings. TheConstitutional Court, within the scope of individualcomplaints, may not supervise the application of legalinstruments that are otherwise in conformity with theConstitution. The Constitutional Court also may notsupervise the facts or evidence in cases. Rather, itshould examine conformity with regard to theoperation of the law. It has the right to annul courtdecisions, for example, if the interpretation of anotherwise constitutional legal instrument by the courtqualifies as unconstitutional or arbitrary due to aviolation of fundamental rights.
From the point of view of the Constitutional Court, the broadened scope of its competencepresents a serious challenge. While constitutionalprinciples and definitions laid down in the past 20years may be invoked in individual cases, thepractices evolved during the supervision ofunconstitutional legal instruments may have lesssignificance and need reconsideration when it comes to individual complaints. In this regard, the remarkable achievements of Germany’sBundesverfassungsgericht and the European Court of Human Rights in Strasbourg will provide valuableguidance.
Constitutional complaintsFollowing recent reforms,individuals can have courtdecisions triedvis-à-vis theConstitution
Nagy és Trócsányi Ügyvédi IrodaH-1126 Budapest, Ugocsa u. 4/BTel: +36-1-487-87-00Fax: +36-1-487-87-01Email: [email protected]: www.nt.hu
Tamás Pásztor is anassociate at Nagy ésTrócsányi
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