EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 29-06-2012 / e) 31/2012 / f) On the suspension of the entry into force of Section 8 of the Act CCXI of 2011 on the Protection of Families / g) Magyar Közlöny (Official Gazette), 2012/82 / h) .
Keywords of the systematic thesaurus:
|
|
Constitutional Justice - Types of claim - Claim by a public body - Ombudsman.
|
|
|
Constitutional Justice - Decisions - Types - Suspension.
|
|
|
General Principles - Certainty of the law.
|
|
|
Fundamental Rights - Equality - Criteria of distinction - Sexual orientation.
|
Keywords of the alphabetical index:
Scope, entry into force, suspension / Collision, legal provisions / Inheritance, registered partners.
Headnotes:
A provision on inheritance in the Act on the Protection of Families was not entered into force because it did not conform to the Civil Code.
Summary:
I. In December 2011, Parliament adopted Act CCXI of 2011 on the Protection of Families (hereinafter, the "Act"). Section 8 of the Act, which contains rules on inheritance, would have entered into force on the 1 July 2011.
According to Section 8, if the deceased did not leave any last will (in case of legal succession), only relatives (related in collateral line or linear descent), persons in adoptive relationship and the spouse shall inherit. Because the Commissioner of Fundamental Rights found these norms to be contrary with those of the Civil Code that made possible legal succession also within registered partnerships, he petitioned to suspend the entry into force of the given norm.
II.1. The Constitutional Court, first of all, examined whether a petition can be initiated individually in order to suspend the entry into force of a legal provision, which can be ordered "while examining" a case. The violation of the Fundamental Law can be predicted by the Constitutional Court. The Constitutional Court – not of the petitioner – has a right to establish whether the violation of the Fundamental Law is probable.
Based on Section 61.2 of the Act on the Constitutional Court in the course of the examination of a legal regulation or a provision therein that has been promulgated but has yet to enter into force, the Constitutional Court considers it probable that the said legal regulation or provision thereof is contrary to the Fundamental Law. In such case, it may make an exception to suspend the entry into force of the legal regulation or provision thereof specified in the petition. Exceptions are made when the avoidance of serious and irreparable damage or disadvantage or the protection of the Fundamental Law or of legal certainty necessitates immediate measures.
Only legal regulations that have not yet entered into force can be suspended. Suspension shall be always in exceptional cases. The damage or disadvantage shall be both serious and irreparable. The negative consequences that the suspension aims to avoid shall be at no distant time. The suspensive measure shall serve the protection of the Fundamental Law or of legal certainty. The mere suspected violation of an international treaty is not a ground for suspension. Either a whole legal regulation or just a part of it (a provision) can be suspended.
2. The Court examined if the contested provisions are in harmony with the rules of the Civil Code. The basic rules of inheritance are contained in the Civil Code. According to these rules, legal heirs are, firstly, the descendants of the deceased and secondly, the spouse or the registered partner. So according to the Constitutional Court, same sex partners are also entitled to inherit from each other. The contested Act does not mention the possibility of inheritance between registered partners.
3. The Fundamental Law declares that Hungary is an independent, democratic State governed by the rule of law. According to the jurisprudence of the Constitutional Court, legal certainty forms a conditio sine qua non of the rule of law. Legal certainty also means that the lawmaker shall guarantee the functioning of a given legal institution is predictable.
The mere conflict between certain statutory provisions in itself does not constitute a violation of the Fundamental Law. When contradictory regulations cannot be resolved by interpreting the norms, this leads to a material unconstitutionality. The impossibility of interpreting norms may lead to violation of fundamental rights. In this case, the collision of legal regulations would constitute a violation of the Fundamental Law.
The Court therefore suspended the entry into force of Section 8 of the Act on the Protection of Families. Under Article 61.4 of the Act on the Constitutional Court, the Constitutional Court, in its decision on suspension, sets the date of entry into force of the legal regulation or the provision thereof if the decision on suspension expires. The date of entry into force shall be set as follows: the period that would elapse between the promulgation of the legal regulation and the repeal of the decision on suspension shall be added to the date set in the legal regulation as entry into force of the legal regulation or the provision thereof. In the present case, the Constitutional Court set the date of entry intro force of Section 8 accordingly. It will enter into force on 29 June 2013.
III. Justice Béla Pokol and Justice Mária Szívós attached a dissenting opinion to the judgment.
Hungarian.