a) Hungary / b) Constitutional Court / c) / d) 08-11-1991 / e) 57/1991 / f) / g) Magyar Közlöny (Official Gazette), 1991/123 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Constitutional jurisdiction - Relations with other institutions - Courts.
Constitutional Justice - Jurisdiction - The subject of review - Laws and other rules having the force of law.
Constitutional Justice - Jurisdiction - The subject of review - Court decisions.
General Principles - Weighing of interests.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Right to private life.
Fundamental Rights - Civil and political rights - Rights of the child.
Keywords of the alphabetical index:
Paternity, right to know / Self-determination, right / Living law, concept.
The Court established the right to self-identification. It annulled procedural rules that prevented a child from challenging the presumption of paternity. With this case, the court introduced the concept of living law into its practice. This means that the Court reviews not the normative text itself but the norm that prevails, becomes effective and is realised by the established practice of ordinary courts or administrative agencies.
The Court – overstepping the boundaries of its legal power – annulled the decision of an ordinary court based on an unconstitutional legal provision.
According to the Act on the Constitutional Court, the Constitutional Court does not have jurisdiction to review the constitutionality of the judicial application of the law. On the one hand, this means that if a legal rule has several interpretations and even legal practice does not agree upon a single interpretation then the Constitutional Court cannot make a binding interpretive decision, for such a decision would encroach upon the jurisdiction of the Supreme Court. On the other hand, it also means that if a legal rule that has several possible interpretations is applied with one single content in legal practice then only that normative content may serve as the basis for constitutional review. In the event that a legal rule possessing a variety of possible interpretations gains a permanent and uniform interpretation in legal practice with an unconstitutional content, then the unconstitutionality of that content must be determined in proceedings before the Constitutional Court.
In the current case, the Court, for these reasons, examined the constitutionality of the challenged rules in the context of the meaning attributed to them by legal practice.
According to Article 43.5 of the Family Act IV of 1952 a challenge to the presumption of paternity may be brought by a child within one year of attaining majority and by other parties with standing to sue within one year of the notification of birth. Under Article 44.1 of this Act the action must be initiated personally by the party with standing to sue. A totally incapacitated person may be represented by a statutory agent, subject to the approval of the Court of Guardians. The statutory agent of a child under the legal age in a case whose subject matter is the determination of the child’s family law rights may not be the father or the mother. The uniform legal practice has always been to interpret Article 44.1 of the Family Act to permit the guardian ad litem to have standing to sue – in practice upon the mother’s initiative – in the name of the child under the legal age. As a consequence, the child and (in the interest of the child) the mother, who is legally not entitled to initiate the proceedings otherwise, have a nineteen year time frame from the birth of the child to bring suit, in contrast to other parties who only have one year from notification. In the event that the challenge to the presumption of paternity is successful and the court overturns the presumption, the part of the judgment declaring that the presumption of paternity is overturned may not be set aside on a retrial pursuant to Article 293.2 of the Code of Civil Procedure or by an appeal. This therefore means that the child has no legal possibility whatsoever upon reaching the age of majority to establish or clarify his or her family status.
The right to ascertain one’s parentage, and to challenge and question the legal presumption relating to it, is a most personal right which falls within the scope of «general right of personality» found in Article 54.1 of the Constitution. According to it, everyone in Hungary has the inherent right to life and human dignity, of which no one can be arbitrarily deprived.
The Constitutional Court held that the irrevocable forfeiture of a child’s right to ascertain his or her parentage by conferring upon the statutory agent an unqualified right to sue was unconstitutional.
Two Justices attached a separate opinion to the judgment. According to their opinion, if an unconstitutional interpretation of a legal rule by the courts places them in confrontation with the law, it is the courts which must be compelled by the use of appropriate legal instruments to interpret and apply the statute or some other legal rule in a constitutional manner, and it is not the legislature which is to be «punished» for the unconstitutional interpretation by the courts applying the law by declaring null a regulation which would not be unconstitutional according to a proper interpretation.
The legal rule is the text published in the Official Gazette and not the version corrected and thereby distorted by the practice of its application.
If the Constitutional Court accepts the theory of the «living law», the necessary repercussion of that will be that it can never decide on the basis of a published statutory text but will always be compelled to examine the application of the law in practice, at the very least with a view to determining whether or not such application is «permanent and uniform». The court has neither the competence nor the technical resources for this task.