a) Hungary / b) Constitutional Court / c) / d) 01-07-1997 / e) 39/1997. / f) / g) Magyar Közlöny (Official Gazette), 58/1997 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Effects - Determination of effects by the court.
Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
Fundamental Rights - Equality - Scope of application - Employment.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Presumption of innocence.
Fundamental Rights - Economic, social and cultural rights - Freedom to choose one's profession.
Keywords of the alphabetical index:
Membership, compulsory / Chamber, professional / Membership, termination and suspension.
The right of Professional Chambers to regulate and decide a question affecting basic rights, such as the determination of the right to belong to a professional association, must be regulated by statute.
In a case concerning the supervision of the legality of a public administrative body's decisions, it is a constitutional requirement that the Court shall decide the case according to the rights and obligations set forth in Article 57 of the Constitution, under which all persons are equal before the law and have the right to defend themselves against any charge brought against them, or, in a civil suit, to have their rights and duties judged by an independent and impartial court of law at a fair public trial or hearing. The rule regulating a public administrative body's right to decide cases must contain provisions under which the court has supervisional jurisdiction over the legality of this kind of decision.
In its current decision, the Constitutional Court distinguished between Economic Chambers and Professional Chambers. Professional Chambers were found to be the governing bodies of the traditional professions, composed of their members, so as to exercise a form of self-government. As such, the Court found that the regulation of the Professional Chambers could go further than in the case of other types of public bodies, since their conduct could affect even fundamental rights. Nevertheless, this kind of regulation is also limited by Article 8.2 of the Constitution, under which regulation of fundamental rights and obligations must be effected by statute. Determination of the content and essential guarantees of fundamental rights, and also of direct and essential restrictions on basic rights must be regulated exclusively by statute. In the instant case, the Court had to examine whether objective restrictions on free choice of employment and occupation are inevitable and proportional, although, in general, a restriction on the exercise of one’s profession, according to the Court, is constitutional for professional and practical purposes.
The petitioners asserted that the right of the Hungarian Medical Association (henceforth: HMA) to suspend and to terminate a medical practitioner’s membership in the HMA was unconstitutional. In the petitioners’view, these rights of the HMA are equivalent to a prohibition on the exercise of one's profession, which would therefore violate the presumption of innocence as defined by Article 57.2 of the Constitution. The HMA is authorised to terminate membership if a medical practitioner has been sentenced to imprisonment for a term of more than a year or if she/he has been prohibited from exercising her/his profession. In case of complete prohibition, the medical practitioner’s membership is terminated until the court finds her/him suitable to exercise the profession again. Since both of these punishments can be imposed only in the context of a criminal procedure, and since termination of HMA membership is only a consequence of such a sentence, the Court found that the petitions were unfounded as regards this question.
Suspension of HMA membership entails that the medical practitioner is deprived temporarily of her/his right to practise. The issue in the present case was whether a medical practitioner is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law according to the Constitution and Article 6 ECHR. In answering this question, the Constitutional Court took into account the case-law of the European Court of Human Rights, especially the Le Compte, Van Leuven and De Meyere judgement of 23 June 1981, Series A no. 43 and the Albert and Le Compte judgement of 10 February 1983, Series A no. 58, wherein it was held that Article 6.1 ECHR is applicable to the above-mentioned cases. Since a medical practitioner in private practice exercises the right to continue to practise, his/her relationships with patients are usually contractual or quasi- contractual and are established directly between individuals on a personal basis. The suspension of a medical practitioner’s right to practise thus concerns a private relationship.
To establish the independence and impartiality of the HMA would be difficult, but, if the procedure before the Association violates Article 57.1 of the Constitution, the medical practitioner has recourse to a hearing by a tribunal established by law. Therefore, the Court found constitutional the provision challenged by the petitioners. Under Article 50.2 of the Constitution, the courts supervise the legality of the decisions of public administration and thus, the decisions of HMA. During this procedure all procedural safeguards ensured by Article 57.1 must be realised. The regulations which limit the supervision of the legality of the public administrative bodies' decisions by the courts, are unconstitutional.
In the submission of the petitioners, the obligation to join the HMA limited freedom of association, and thus, by implication, freedom not to associate. The Court referred to the European Court of Human Rights Le Compte, Van Leuven and De Meyere judgement in which the European Court of Human Rights declared that Professional Chambers and thus the Medical Association, are public law institutions, which are founded not by individuals but by the legislature. The Constitutional Court, however went further and declared that the constitutionality of compulsory membership of Professional Chambers, like the HMA, does not derive from the fact that they are public bodies. It held that the obligation to join such a chamber restricts the right to self-determination. Therefore, in order to decide on its constitutionality, the Court has to examine whether to carry out public tasks, compulsory membership of the HMA is required, and, whether this limitation is proportionate to the aim to be achieved. The Court in its current decision stated that the HMA is a public body which is entitled to adopt and to sanction decisions affecting the medical profession. This public task and other rights of the HMA require that every medical practitioner has the right to vote and to be elected. The obligation to join the HMA does not prevent practitioners from forming together or joining professional associations. Therefore, the Court did not find the provision on compulsory membership unconstitutional. However, according to the Act on the Medical Association, the medical professional, acting in a public capacity, is not obliged to join the HMA. In the Court’s opinion, there is no constitutional reason to differentiate between a medical practitioner acting in a public capacity and a medical practitioner in private practice in this sense, hence this provision of the Act violates Article 70/A of Constitution, which prohibits discrimination.
The petitioners also asserted that the provision under which the HMA is accorded the right to veto the permission of the Minister of Public Health concerning a foreigner's ability to practise medicine and to have their name entered on the Medical Practitioners' National Register without a certificate of naturalisation was unconstitutional. The entry of the medical practitioner’s name on the register is a requirement of HMA membership, and HMA has a further possibility to decide whether to permit the foreign medical practitioner to practise, when it decides on the membership of a non-Hungarian national. The decision in this case can be supervised by the Court. However, there is no legal remedy in a case where the HMA stops a foreign medical practitioner either from exercising his profession without a naturalised diploma, or from having his/her name entered into the Medical Practitioners’National Register. The Court further found that the HMA’s right to veto registration and the regulation of membership decisions restrict the right of non- Hungarian medical practitioners to free choice of occupation. The problem is that there is no legal provision regulating the circumstances under which the HMA should accept or refuse the request of the foreign medical practitioner. The right to appeal to the courts in case of a refusal does not make any sense, since the Court cannot examine the legality of such a decision. Therefore, the Court held the challenged provision unconstitutional, but upheld the validity of the unconstitutional regulation and called upon Parliament to meet its legislative obligation. In case of failure to pass the necessary legislation, the court held that from 1 January 1998 the legal situation of foreign and the Hungarian medical practitioners will be merged concerning entry on the register and HMA membership.