a) Hungary / b) Constitutional Court / c) / d) 14-07-2005 / e) 28/2005 / f) / g) Magyar Közlöny (Official Gazette), 2005/99 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Equality - Criteria of distinction - Differentiation ratione temporis.
Fundamental Rights - Economic, social and cultural rights - Right to education.
Keywords of the alphabetical index:
Education, entrance examination, regulation / Education, students, equal chances / Education, entrance exam, system change.
The method of introducing the new system and the regulation of the conversion of results of secondary school leaving examinations into entrance points meant that those students taking the secondary school leaving examination from 2005 onwards were potentially at a disadvantage (that is, possibly fewer of them could enter their preferred institution of higher education), by comparison with those who had taken it under the old system.
I. Government decrees have introduced a new system of secondary school leaving examinations and entrance examinations. In essence, from 2005 onwards, there is to be a so-called two-tier secondary school leaving examination. Dispositions relating to standardised requirements and to an upper secondary school leaving examination have to be employed with regard to the examinations taken by those secondary school students who began their secondary education in the 9th grade on or before 1 September 2001. With the introduction of the two-level secondary school leaving examination, the entrance examination to institutions of higher education has ceased to exist.
The petitioners argued that the new regulation is at variance with the prohibition of discrimination, because those students taking their secondary school leaving examination this year do not have the same opportunity of entering higher education financed by the state as students who took the examination under the previous system. The new method would result in discrimination against students of equal talents, as it assigns a different number of "acquired points" to the same examination results of students who took the examination either this year, or in previous years. The petitioners also referred to Article 70/F of the Constitution on the right to education.
II.1. The Constitutional Court rejected the petitions. It said that the government decree did not affect the determination of entrance points counted on the basis of secondary school leaving examination results on the basis of when (before or after 2005) or how (within the framework of the old one-level, or the new two-level secondary school leaving examination) the student applying for an institution of higher education took the secondary school leaving examination. The rules of the decree were obligatory for either type of applicant. When the results of the secondary school leaving examinations were converted into entrance points for those who took the examination in the new, not upper level, and those who took the secondary school leaving examination under the old system, the only difference was that behind the percentage result forming the basis for the entrance points, in the first case there was a converted result, while in the latter there was an achievement originally also expressed in a percentage.
It does not follow directly from Article 70/F.2 of the Constitution that the applicant should start his higher education in the year that seems desirable for him. Article 70/F.2 guarantees access to higher education for all applicants with the abilities required. It does not entitle everyone to start their higher education at the time and in the institution of higher education of their choice.
The purpose of entrance examinations is to select the most suitable applicants for higher education. The Constitutional Court accordingly rejected the petitions relating to the breach of Article 70/F.2 of the Constitution.
2. The Constitutional Court considered whether those students who had taken their secondary school leaving examination under the old system and those who took it within the new, two-level system could form a homogenous group, and thus whether the differentiation could be judged on the basis of Article 70/A.1 of the Constitution at all. The Constitutional Court stated that in the case in point, the major factor both groups had in common was that the students who took the secondary school leaving examination before 2005, and those who took it after 2005 could enter an institution of higher education by means of the same entrance examination. By the calculation of entrance points, the same rules bound both groups. As the differentiation did not affect the right to higher education embedded in Article 70/F of the Constitution, the Constitutional Court only examined whether the differentiation had a correct and reasonable justification, or whether it was arbitrary. There may be differences in the opportunities arising from the regulation in question, to the disadvantage of those students taking the basic secondary school leaving examination from 2005 onwards. However, this is only one factor out of the many that influence the chance of a successful entrance examination, and any resulting disadvantages can be compensated for in other parts of the entrance examination system (for instance by the acquired points). The Constitutional Court also stated that there was reasonable justification for the new regulation possibly affecting the chances of students taking the new secondary school leaving examination for entering higher education so it would not find there had been a breach of Article 70/A.1 of the Constitution.
3. During its proceedings the Constitutional Court also declared that the introduction of the new system of secondary school leaving examinations and entrance examinations, the setting forth of the rules, and guarantees of its predictability did not meet the constitutional requirements of legal certainty (such as "proper time") that the Constitutional Court had noted in previous cases.
The remaining part of the Constitutional Court's decision accordingly drew the legislature's attention to the fact, that when a system was to undergo fundamental and radical change, any outline rules and individual provisions not only had to meet statutory conditions (notably formal ones relating to chronology), but the complete impact of the changes had to be properly communicated to, received and understood by those concerned. Furthermore, the legislative was compelled to check carefully from the outset whether those concerned were suitably prepared for the implementation of the new system. Conscious decision-making could only be made in the possession of necessary information and with insight into possible consequences.
4. Finally, the Constitutional Court stated ex officio that the Government failed to act with circumspection when enacting the decrees creating and introducing the new system of secondary school leaving examinations and entrance examinations. The method of introducing the new system and the regulation of the conversion of results of secondary school leaving examinations into entrance points meant that those students who took the secondary school leaving examination from 2005 onwards were potentially at a disadvantage (that is, possibly fewer of them could enter their preferred institution of higher education), by comparison with those who had taken it under the old system. The legislature has a duty to enact statutes that guarantee not only equality before the law, but also (to the greatest possible extent) equality of opportunity. For this reason the Constitutional Court called upon the government to reconsider the subject as a whole and the provisions within the regulations pertaining to the two-level secondary school leaving examination and entrance examination, and to create a statute which fully met its duties as set out in Article 70/A.3 of the Constitution.