a) Hungary / b) Constitutional Court / c) / d) 29-09-2005 / e) 34/2005 / f) / g) 2005/130 / h) .
Keywords of the Systematic Thesaurus:
Institutions - Elections and instruments of direct democracy - Representation of minorities.
Fundamental Rights - Equality - Scope of application - Elections.
Fundamental Rights - Equality - Affirmative action.
Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.
Fundamental Rights - Civil and political rights - Electoral rights - Right to stand for election.
Fundamental Rights - Civil and political rights - Protection of minorities and persons belonging to minorities.
Keywords of the alphabetical index:
Election, minority self-government / Election, equality of votes.
There are no rules in the Constitution on the way in which minority self-governments should be created. The state does have to secure the participation of minorities in public affairs; this requirement is closely linked to the basic notions of democracy, human rights and the rule of law. The electoral framework has to reflect the special characteristics of the minorities as well as the administrative and electoral features of the country. The existing international obligations do not preclude limitations on the right to vote, but this cannot result in discrimination against minorities.
I. Parliament adopted the Act on the modification of the election of representatives to minority self-governments, and other acts relating to national and ethnic minorities (hereinafter referred to as "the Act") on 13 June 2005. The President sent it to the Constitutional Court to be reviewed, prior to its promulgation.
In his petition the President commented on Article 68.3 of the Act which allows an elected member of a local authority - if enough people voted in the course of the election of minority self-governments - to become a member of the minority self-government simply by making a statement. He suggested this might be in breach of Articles 2.1, 44.1, 70.1, 70.2 and 71.1 of the Constitution.
II. The Constitutional Court found that Article 68.3 of the Act is unconstitutional. The Court stressed that there are no rules in the Constitution on how minority self-governments should be created. However, in assessing the case, one has to consider Hungary's international obligations and the type of international expectations which have to be met. The Court found that the state has to secure by whatever means the participation of minorities in public affairs; this requirement is closely linked to the basic notions of democracy, human rights and rule of law; as well as the administrative and electoral features of the country, the special characteristics of the minorities have to be reflected in the electoral framework; and finally, the existing international obligations do not preclude the limitation of the right to vote, but this cannot result in discrimination against minorities.
The principle of equal suffrage is enshrined in Article 71.1 of the Constitution. The Court stressed that, by comparison with Article 70/A of the Constitution (a general non-discrimination clause), this is a special rule which guarantees that every voter has the same number of votes as the others, and his vote has the same value when it comes to counting the votes cast. Article 68.3 ascribed a double right to vote to members of assemblies of the local authorities. The constitutional review focused on the issue of whether the effective exercise of the constitutional rights of people belonging to ethnic and national minorities can constitutionally result in the breach of the 'one person, one vote' principle.
According to the settled case law of the Constitutional Court the standard test in similar cases involving institutional protection is not the "necessity-proportionality" test, it depends instead on the constitutional tasks of the institution at issue. Applying the above reasoning the Court found that Article 68.3 of the Act is not the only possible solution, it is not necessary and is contrary to Article 71.1 of the Constitution.
The Court also found that the requirements of legitimate exercise of power and the rule of law apply not only to state institutions, but also to local authorities.