a) Hungary / b) Constitutional Court / c) / d) 18-04-2003 / e) 15/2003 / f) / g) Magyar Közlöny (Official Gazette), 2003/39 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - Scope of review.
Constitutional Justice - Jurisdiction - Type of review - Preliminary / ex post facto review.
Constitutional Justice - Jurisdiction - Types of litigation - Electoral disputes.
Constitutional Justice - Jurisdiction - Types of litigation - Litigation in respect of referendums and other instruments of direct democracy - Admissibility .
Institutions - Elections and instruments of direct democracy - Referenda and other instruments of direct democracy.
Fundamental Rights - General questions - Limits and restrictions.
Keywords of the alphabetical index:
Referendum, preliminary review / Referendum, outcome, violation of human rights and freedoms.
The Constitutional Court has the jurisdiction to examine whether or not the outcome of the referendum conducted on the basis of a decision by the National Election Commission manifestly compels the legislature to adopt an Act violating the essence of fundamental rights.
In cases of national referenda, the Constitutional Court is an instance of legal redress. Within its competence, the Constitutional Court may take a final decision as to whether a referendum may be held on a given issue (the Constitution defines the scope of the subject-matter on which no referenda may be held).
The case concerned a referendum to be organised on the purchase and ownership of arable land. In its decision, the National Election Commission (the first instance) declared that the referendum could be held, since it met the legal regulations and conditions in force. However, objections to the decision of the National Election Commission were filed with the Constitutional Court.
One of the objections was that according to Article 8.2 of the Constitution, not even the Parliament had the competence to limit the essential content of any fundamental right unnecessarily and disproportionately. In spite of that, the proposed referendum concerned such a decision. No referendum was possible on such a question.
The Constitutional Court rejected the petition. It declared that although it could happen (for example, in the case of a national referendum on a petition by at least 200,000 voters) that a question in a referendum could compel the legislature to prepare a legal provision that manifestly and seriously violated certain fundamental rights or caused serious private wrong, in such a case, however, the preliminary constitutional review of the question to be raised in the referendum would provide adequate protection.
The Court recalled that the legal system in Hungary recognised several legal institutions that ensured the proper exercise of the political right to hold a referendum in accordance with the Constitution. In spite of that, the provisions of the Constitution, and especially those concerning fundamental rights, could not be made dependent on whether the authorised institutions (MPs, the Head of State etc.) availed themselves of the opportunities provided in the Constitution and the Act on Constitutional Court in the later phases of the referendum and applied to the Constitutional Court.
In the particular case, however, the Constitutional Court found the contents of the statutory provision to be adopted could not be established on the basis of the question raised in the referendum; the legislature could draft a provision that would not violate the Constitution, even if the positive votes were in the majority.