a) Hungary / b) Constitutional Court / c) / d) 02-03-2004 / e) 5/2004 / f) / g) Magyar Közlöny (Official Gazette), 2004/23 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - Types of litigation - Litigation in respect of referendums and other instruments of direct democracy - Admissibility .
Fundamental Rights - Equality - Criteria of distinction - Ethnic origin.
Fundamental Rights - Civil and political rights - Right to citizenship or nationality.
Keywords of the alphabetical index:
Referendum, initiative / Nationality, definition / Naturalisation, preferential / Citizenship, acquisition, condition.
The question to be put to a referendum does not refer to any obligations arising from international agreements or to the content of an Act on such obligations and does not create a situation where an international agreement should be terminated or its content changed; therefore, that question is not contrary to Article 28/C.5 of the Constitution.
The ground for the proposed preferential naturalisation is the existence of a strong bond to Hungary, to be examined on an individual basis. This reasonable ground for granting advantages when regulating questions of citizenship conforms to Article 6.3 of the Constitution and, therefore, does not constitute unlawful discrimination.
The National Election Commission (NEC) took a decision to certify a document for the collection of signatures, a document submitted as part of an initiative of the Hungarian World Federation. According to the initiative, a referendum was to be organised relating to the acquisition of citizenship by Hungarians living abroad with the following question:
"Do you want the Hungarian Parliament to pass an Act enabling any non-Hungarian citizen not living in Hungary, who claims to be of Hungarian nationality, and whose Hungarian identity can be certified by a "Hungarian certificate" (Article 19 of the Act LXII of 2001) or by any other method defined in the proposed Act, to acquire Hungarian citizenship with preferential naturalisation, if the person so requests?" (In this case nationality and citizenship are not synonyms; nationality indicates the person's ethnic origin).
An objection was filed with the Constitutional Court against the decision of the NEC, alleging that no national referendum could be held on that question, since it (or as a result of it, the Act) would on one side be against international treaties, on another side violate Article 70/A.1 of the Constitution (on non-discrimination), and finally, that the wording of the question was difficult and ambiguous.
According to the petitioner, preferential treatment concerning naturalisation was against Article 5 (non-discrimination clause) of the European Convention on Nationality (henceforth, "the Convention"). (For the purpose of that Convention, "nationality" means the legal bond between a person and a State and does not indicate the person's ethnic origin: Article 2 of the Convention). The Constitutional Court first referred to the Nottebohm Case of the International Court of Justice and to the European Convention on Human Rights. According to the case-law of the European Court of Human Rights, the non-discrimination clause in Article 14 ECHR is not violated where a difference in treatment is based on the inequality of the cases, where it has objective justification, and where the aim sought by the treatment is proportionate with the means employed. Granting citizenship by naturalisation is not connected with the any of the rights enumerated in the European Convention on Human Rights. Consequently, in the event of a successful referendum, the resulting Act would not be against Article 14 ECHR.
The Constitutional Court then referred to the Explanatory Report of the Convention on Nationality, according to which not all cases in which states grant certain advantages in relation to the acquisition of citizenship amount to a violation of the non-discrimination rule. The Court held that the advantage was substantiated when granted on the basis of knowledge of the national language, descent or place of birth. The Explanatory Report referred to the fact that the Convention itself laid down preferential treatment in Article 6.4 (under this article, a state party shall facilitate in its internal law the acquisition of its nationality for - among others - spouses of its nationals, persons who were born on its territory and reside there lawfully and habitually or for stateless persons). In that respect, the Constitutional Court surveyed the preferential rules of some European states. As a result, the Constitutional Court considered that in the event of a successful referendum, the question on the document for collecting signatures would add a new kind of preferential naturalisation to the already existing ones, or it would regulate preferential naturalisation and it would incorporate the case in the document into the list of new resolutions. Consequently, the question was not against Article 28/C.5 of the Constitution.
The Constitutional Court did not accept the petitioner's argument that a referendum would lead to the creation of an Act that would be against the constitutional provision of non-discrimination.
Finally, the Constitutional Court was of the opinion that the wording of the question in the given case met the grammatical requirements of unambiguity; consequently, the legislative duty of the Hungarian Parliament would be easy to understand. For that reason, the Court rejected the petitioner's objection with respect to that issue and affirmed the decision of the NEC.
Justice Mihály Bihari delivered a concurring opinion, in which he stated some ideas of fundamental importance as to the decision's reasoning in relation to non-discrimination and granting advantages.
Justice István Kukorelli delivered a dissenting opinion, in which he stated that the reasoning in the explanation for the Constitutional Court's majority decision was unjustifiably based on the advantages with respect to naturalisation already existing in the Act on Citizenship. That did not follow from the question to be put to referendum. The legislative power has the possibility to further facilitate the preconditions of acquiring citizenship in certain cases, and to make it easier in comparison with the existing rules by securing exemptions from some of the objective conditions of the Act on Citizenship. That, however, could not violate the Constitution or any international legal obligations. Nor could it result in an exemption secured by legislation from all objective conditions for acquiring citizenship in favour of a certain group of individuals. On the basis of the question to be put to referendum, people granted preferential naturalisation would be entitled to preferential naturalisation simply because they claimed to be ethnic Hungarians, irrespective of their place of residence, place of birth, mother-tongue or descent. Referring to nationality (ethnicity) as the sole condition for acquiring citizenship did not amount to justified grounds for preferential treatment on the basis of the Convention. Being ethnic Hungarian in itself was not sufficient for the verification of a close, real (effective) relationship between the citizen and the state, as required in the Nottebohm Case.