HUN-1998-3-008

a) Hungary / b) Constitutional Court / c)  / d) 02-10-1998 / e) 42/1998 / f)  / g) Magyar Közlöny (Official Gazette), 90/1998 / h) .

Keywords of the Systematic Thesaurus:

01.02.01.08

Constitutional Justice - Types of claim - Claim by a public body - Ombudsman.

01.02.04

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

01.03.01.01

Constitutional Justice - Jurisdiction - Scope of review - Extension.

01.03.02.02

Constitutional Justice - Jurisdiction - Type of review - Abstract / concrete review.

01.04.10.04

Constitutional Justice - Procedure - Interlocutory proceedings - Discontinuance of proceedings.

01.05.04.01

Constitutional Justice - Decisions - Types - Procedural decisions.

02.01.03.02.01

Sources - Categories - Case-law - International case-law - European Court of Human Rights.

02.01.03.03

Sources - Categories - Case-law - Foreign case-law.

04.12.03

Institutions - Ombudsman - Powers.

04.12.07

Institutions - Ombudsman - Relations with the executive.

Keywords of the alphabetical index:

Petition, withdrawal / Procedure, discontinuing / Petition, binding.

Headnotes:

The Court is bound by the petition in its proceedings, except when the Court proceeds ex officio. The Court can extend the constitutional review to provisions not disputed in the petition, or the Court may examine the constitutionality of a legal rule instead of examining the petition as a constitutional complaint.

Summary:

The Parliamentary Ombudsman for Civil Rights and her Deputy, the Parliamentary Ombudsman for the Rights of National and Ethnic Minorities and the Data Protection Ombudsman submitted a petition to the Constitutional Court in which they requested the Court to declare that the Ombudsmen have the right to investigate or initiate the investigation of cases involving constitutional rights at the Public Prosecutorís Office. In their petition, the Ombudsmen requested the Court to interpret Article 32/B of the Constitution on the competence of the Ombudsmen and to review the constitutionality of the Act on the Parliamentary Commissioners. In addition, they asked the Court to eliminate the conflict arising in the sphere of authority between the Office of the Ombudsmen and the Public Prosecutorís Office. In September 1998, however, the Ombudsmen withdrew their petition when the case was still pending before the Court. Therefore the Constitutional Court had to decide whether the withdrawal of the petition meant that the Court should discontinue its procedure.

Based upon Article 20 of the Act on the Constitutional Court, the Constitutional Court in its present decision held that the procedure should be discontinued. However, the Court did not attach a detailed reasoning to this decision, instead concurring in the opinion of the justice who delivered the opinion of the court. Furthermore, the Chief Justice filed a partly concurring, partly dissenting opinion.

According to the judge who delivered the opinion of the Court, it is in accordance with the practice of the Court that the procedure should be discontinued when the petitioner withdraws his/her submission. In his opinion, the Court is bound by the petition in its proceedings except when the Court proceeds ex officio. The Court thus proceeds based upon the submission of the petitioner; however, in order to solve an important constitutional problem properly, the Court can extend the constitutional review to provisions not disputed in the petition, or the Court may examine the constitutionality of a legal rule instead of examining the petition as a constitutional complaint. The same cannot be said when the Court continues proceedings against the will of the petitioner, because this conflates the difference between the procedure instituted ex officio and the procedure initiated by a petitioner.

In the dissenting part of his opinion, the Chief Justice argued that the Court should have decided on the merits of the case in so far as it concerned abstract review and the interpretation of the Constitution instead of discontinuing the procedure. In the case of abstract review, a petitioner submits a petition on behalf of the public (actio popularis) and when the Court decides the case, it does not take into account the facts which are in connection specifically with the petitioner but rather decides on the basis of the legal facts and circumstances. The procedure therefore is of public interest, and after initiating the procedure, the petitioner has no control over their submission. The Chief Justice cited the judgment made by the European Court of Human Rights in the Tyrer case (1978 Series A no. 26.), in which the Court decided not to strike the case in question out of its list, because «the case raised questions of a general character affecting the observance of the Convention», although the applicant wished to withdraw his application. The Chief Justice also referred to one of the decisions of the Constitutional Court of Germany (Urteil vom 14 Juli 1998, Europäische Grundrechte Zeitschrift 1998, 13/14, 395, 402), in which the Court decided to continue the procedure despite the fact that the petitioner withdrew the constitutional complaint. The competence of the Court concerning the abstract interpretation of the Constitution is ab ovo of public interest, and decisions made in the framework of this procedure always contain leading, guiding principles. Therefore, if one of the petitioners entitled to submit a petition initiates such a procedure, the Court should not discontinue the procedure even if the petitioner wishes to withdraw the submission.

The Chief Justice in the concurring part of his opinion held that if a petitioner withdrew a submission in which they requested the Court to eliminate a conflict of powers arising between State organs, the Court should examine whether this conflict raised a question of general character or whether the procedure was of public interest. In the opinion of the Chief Justice the issue whether the Ombudsmen have the right to conduct investigations at the Public Prosecutorís Office was a question of general character and public interest. However, in the instant case, this question could have been answered only in the framework of a procedure concerning the interpretation of the Constitution, and the Ombudsmen submitted a separate petition relating to this issue. Hence, the procedure regarding the conflict of powers could have been discontinued without violating public interest.

Languages:

Hungarian.