HUN-1997-1-001

a) Hungary / b) Constitutional Court / c)  / d) 22-01-1997 / e) 4/1997 / f)  / g) Magyar Közlöny (Official Gazette), 7/1997 / h) CODICES (German).

Keywords of the Systematic Thesaurus:

01.02.04

Constitutional Justice - Types of claim - Initiation ex officio by the body of constitutional jurisdiction.

01.03.02.01

Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.

01.03.02.01

Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.

01.03.05.01

Constitutional Justice - Jurisdiction - The subject of review - International treaties.

Keywords of the alphabetical index:

Ex post facto review.

Headnotes:

According to Article 1.b of the Act on the Constitutional Court, the Constitutional Court shall examine the constitutionality of the law promulgating an international treaty. The constitutional review shall cover the examination of unconstitutionality of the international treaty promulgated by law. If the Constitutional Court holds that the international treaty or any provision of it is unconstitutional, it declares the unconstitutionality of the law promulgating the international treaty. The decision of the Constitutional Court in which the Court declares unconstitutional the whole international treaty or any provision thereof has no effect on the obligations assumed by the Republic of Hungary under international law.

Summary:

According to the petitioner, those provisions of the Act on the Constitutional Court (hereinafter «the Act») according to which the jurisdiction of the Court includes only the preliminary examination of the constitutionality of international treaties and does not make it possible for citizens to exercise their rights deriving from the Constitution concerning the provisions of international treaties within the framework of an ex post facto review are unconstitutional. It is also unconstitutional that the Constitutional Court is not entitled to proceed ex officio in case of such kind of ex post facto review.

In the petitioner's opinion, this inadequate regulation is contrary to the constitutional principle of a constitutional state as declared in Article 2 of the Constitution, since citizens cannot initiate the constitutional review of an international treaty prior to its ratification and because the Constitutional Court does not have any competence - within the framework of an ex officio procedure - to institute such proceedings.

According to the petitioner, it also derives from Article 7.1 of the Constitution that the Constitution stands above the provision of an international treaty promulgated by law.

The Constitutional Court found the petition unfounded and at the same time interpreted its jurisdiction regarding the examination of the unconstitutionality of international treaties based on the Constitution and the Act.

Infringing the right to conclude a treaty is a formal way of violating the Constitution which may be examined in all proceedings for which the Constitutional Court has the competence even after concluding the treaty, namely both during preliminary and ex post facto review of constitutionality.

According to Article 32.A.3 of the Constitution, in certain cases determined by law anyone may initiate proceedings at the Constitutional Court. By historical interpretation of Article 32.A of the Constitution, it is clear that the legislator's intention was that the jurisdiction of the Constitutional Court should include actio popularis regarding ex post facto review of the constitutionality.

The argument of the petitioner is not adequate in relation to his claim that restricting the exercise of the right to initiate preliminary review of the unconstitutionality of international treaties is contrary to Article 8 of the Constitution. The right to initiate Constitutional Court proceedings is a basic constitutional right according to Article 32.A of the Constitution, and this Article does not include preliminary review. Neither does it derive from the principle of people's sovereignty and a constitutional state that the realisation of these would be the precondition - concerning preliminary review of the unconstitutionality of international treaties - for ensuring the right to initiate Constitutional Court proceedings for every citizen.

According to Article 20 of the Act, the Constitutional Court shall proceed based on the motion submitted by the party entitled to submit such a motion. The procedure instituted ex officio is a special jurisdiction of the Constitutional Court and according to Article 21 of the Act it is related to the procedure provided in Article 1.c and e. According to this, the procedure of the examination of the conformity of legal rules as well as other legal means of state control with international treaties and the procedure during which the Constitutional Court shall eliminate the unconstitutionality manifesting itself in omission are instituted ex officio. However, the obligation for an ex officio procedure is not derived either from Articles 2, 7 or 32.A of the Constitution concerning Constitutional Court proceedings. Thus, that part of the petition asserting the absence of the ex officio procedure is also unfounded.

There is no constitutional basis dealing with the law promulgating an international treaty different from any other legal rule concerning constitutional examination. Since it derives from the Constitution that ex post facto review shall cover all kinds of legal rule, this universality may not be restricted even by a law.

Article 1.a of the Act therefore does not mean that the Constitutional Court may examine only preliminarily the unconstitutionality of certain provisions of an international treaty, but it means that besides the ex post facto review which derives from the Constitution, the unconstitutionality of an international treaty may also be examined preliminarily under the Act and upon certain conditions set out therein. From the fact that Article 1.a specifies the preliminary examination of international treaties, it does not follow that in paragraph b the legislator should have had to mention the law promulgating a treaty, as a special type of law.

In order to confirm the foregoing, the Constitutional Court refers to the fact that concerning the relationship between domestic and international law, in the development of European law there is a tendency that the dualist-transformation system is replaced by the monist system. According to the monist-adoption concept, the concluded international treaty constitutes a component of national law without further transformation, that is it is applicable directly and enjoys supremacy over domestic law. This system is required by European integration, and for this reason, even those members of the EU which still follow the transformation system (e.g. Germany and Italy, founding members, and the Scandinavian countries which subsequently joined to the European Union) apply the law of the European Union directly, without transformation, and they ensure superiority over national law with the exception of the Constitution. As a result of this, the constitutional courts exercise their rights regarding constitutional examination concerning international treaties (international law) and the decisions of international organisations - due to the adoption system - automatically become the part of the domestic law.

The examination of international treaties - after they become part of domestic law - fits into the logic of constitutional review. Therefore, in those countries where there is no specific regulation concerning this - due to the universality of constitutional review - the constitutional courts examine the constitutionality of them in exactly the same way as in the case of domestic law.

One of the Constitutional Court Justices wrote a dissenting opinion, according to which the Constitutional Court does not have the competence for the ex post facto review of an international treaty. The Act on the Constitutional Court entitles the Constitutional Court to examine the unconstitutionality of international treaties exclusively prior to their ratification, but there is no possibility for an ex post facto review. By incorporating the international treaty into the domestic law, the treaty does not lose its specific characteristic that it was concluded as an international treaty by the agreement of two or more parties of international law, and it was not passed by the Hungarian legislation.

Languages:

Hungarian.