a) Hungary / b) Constitutional Court / c) / d) 26-10-1998 / e) 1042/B/1997 / f) / g) Alkotmánybírósági Közlöny (Official Digest), 10/1998 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - Scope of review - Extension.
Fundamental Rights - Equality.
Fundamental Rights - Equality - Affirmative action.
Fundamental Rights - Civil and political rights - Rights of the child.
Fundamental Rights - Economic, social and cultural rights - Right to education.
Keywords of the alphabetical index:
School, private, financial support / State contribution / School, church, difference / Public education agreement.
It is not unconstitutional if the State regulates the financial assistance given to private schools differently from the contributions made to state and church schools.
The petitioners requested the constitutional review of some provisions of the Public Education Act. According to them, the Act, by regulating the funding mechanism of State and church schools and private schools in different ways, violates Article 70/A of the Constitution, which declares the prohibition of discrimination.
The Constitutional Court held this argument to be unfounded. It pointed out that those who establish and run private schools also have an entitlement to the compulsory budgetary contribution defined by the Budget Act. Referring to its Decision no. 22/1997 (IV. 25) (Bulletin 1997/2 [HUN-1997-2-005]), the Court held that since the compulsory budgetary contribution covered only a part of the expenses of the operation of the schools, the rest of this expenditure should have been covered by the founder itself. For schools not owned by the State, there is a possibility of concluding a public education agreement with the Government in order to ensure further financial assistance for the operation of the school not owned by the State. This solution is not in conflict with the Constitution.
In the petitioners’view, those provisions of the Act according to which only the state-run public primary schools are free are also unconstitutional, because this regulation means that a disproportionate burden is placed on those who wish to attend private schools.
Under Article 70/F of the Constitution, the State shall implement the right of education through the extension and general availability of public education, free compulsory primary schooling, secondary and higher education being available to all persons on the basis of their ability, and furthermore through financial support for training. The Public Education Act, however, goes further and declares higher education to be free. According to the Court, the duty of the State is only to establish and run neutral schools. The State therefore is not obliged to ensure free education in every kind of school.
The Court examined ex officio some provisions of the relevant international treaties, namely Article 14 ECHR and Article 2 Protocol 1 ECHR, Articles 2.1 and 2.2 of the Convention on the Rights of the Child of 1989 and also Articles 1, 2 and 5 of the Convention against Discrimination in Education adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation, and held that the duty of the State to ensure free education in every kind of primary school does not derive from these international human rights instruments.
Furthermore, the Court declared that it was not unconstitutional if in addition to the compulsory budgetary contribution the State provided schools owned by the church with additional financial assistance, as these schools assume duties which would otherwise be carried out by the State. This positive discrimination (affirmative action) was needed, held the Court, in the interest of the realisation of Article 60 of the Constitution, namely to ensure freedom of religion.