a) Hungary / b) Constitutional Court / c) / d) 08-12-2000 / e) 45/2000 / f) / g) Magyar Közlöny (Official Gazette), 120/2000 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - The subject of review - Failure to act or to pass legislation.
General Principles - General interest.
Institutions - Legislative bodies - Law-making procedure.
Institutions - Activities and duties assigned to the State by the Constitution.
Fundamental Rights - Equality - Criteria of distinction.
Keywords of the alphabetical index:
Equality, anti-discrimination law, lack / Legislation, specific, lack.
It is not in itself contrary to the Constitution that Parliament failed to pass a specific anti-discrimination law. It does not follow from the Constitution that the legislature should enact an integral and extensive Act on non-discrimination.
According to Article 70/A of the Constitution, human and civil rights are guaranteed for all without discrimination on the grounds of race, colour, sex, language, religion, political or other opinions, national or social origins, financial situation, birth or for any other reasons. The Constitution ensures that the discrimination described in Article 70/A.1 of the Constitution shall be strictly penalised by law. However, there is no specific anti-discrimination law in Hungary.
In the petitioners' view, Parliament created an unconstitutional situation by not enacting a specific anti-discrimination law. The petitioners argue that the existing legal provisions of the Hungarian legal system are not sufficient to combat discrimination.
The Court, by examining existing legal norms on discrimination held that the requirement to make a specific anti-discrimination law did not directly follow from the Constitution. In the Hungarian legal system there are several legal provisions which prohibit discrimination. There are norms against discrimination in the Civil Code. According to Article 8.2 of the Civil Code legal capacity shall be equal regardless of age, sex, race, ethnic background, or religious affiliation. Moreover, under Article 76 of the Civil Code, discrimination against private persons on the grounds of gender, race, ancestry, national origin, or religion; violation of the freedom of conscience; any unlawful restriction of personal freedom; injury to body or health; contempt for or insult to the honour, integrity, or human dignity of private persons shall be deemed as violations of inherent rights.
The Criminal Code also contains provisions which penalise discrimination. For example, there is a rule making criminal offences against members of national, ethnic, racial or religious groups among a crime against humanity. Under this section, a person who assaults somebody because he belongs or is believed to belong to a national, ethnic, racial or religious group, or coerces him with violence or menace into doing or not doing or into enduring something, commits an offence and shall be punished with imprisonment of up to five years.
Article 5 of the Labour Code declares the prohibition of negative discrimination as a basic principle. Accordingly, it is forbidden to discriminate among employees on the basis of their sex, age, nationality, race, origin, religion, political beliefs, membership in an organisation representing their interests or involvement in any related activities, as well as any other factor unrelated to their employment. However, at the same time discriminatory treatment arising unequivocally from the type or the nature of the work shall not be considered negative discrimination.
According to the Court, it is not per se unconstitutional that the legislature regulated against discrimination in different legal codes instead of making a specific anti-discrimination law. However, if a petitioner proves that not all aspects of discrimination are regulated and punished by law, the Court would declare unconstitutional Parliament's failure to pass such legislation.