HUN-2005-3-004

a) Hungary / b) Constitutional Court / c)  / d) 29-09-2005 / e) 34/2005 / f)  / g) 2005/130 / h) .

Keywords of the Systematic Thesaurus:

04.09.06

Institutions - Elections and instruments of direct democracy - Representation of minorities.

05.02.01.04

Fundamental Rights - Equality - Scope of application - Elections.

05.02.03

Fundamental Rights - Equality - Affirmative action.

05.03.41.01

Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.

05.03.41.02

Fundamental Rights - Civil and political rights - Electoral rights - Right to stand for election.

05.03.45

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.

Headnotes:

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.

Summary:

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.

Supplementary information:

On 17 October 2005, the parliament re-adopted the Act (Act CXIV of 2005 on the Election of Members of Minority Self-government, and on the Modification of Certain Laws Relating to National and Ethnic Minorities), incorporating the guidelines provided by the Constitutional Court. Article 2.1 of the Act accords the right to vote in the election of minority self-governments to anybody who:

a. belongs to a national or ethnic minority defined in the Act on the rights of national and ethnic minorities, and expresses his affiliation to that minority;

b. is a Hungarian citizen;

c. is entitled to vote in the election of local authorities and mayors, and

d. is listed in the electoral register of minorities.

A minority self-government election can take place if at least thirty people are listed in the register in a given settlement. There can be a maximum of five possible minority representatives, and each voter can vote for five candidates. The Act introduces an electoral voting system: members of the minority self-governments of the settlements of t region have the right to vote and to be voted for. A regional self-governmental election is held if at least ten settlements in the region have minority self-governments. At regional level nine representatives are elected. The national minority self-government is elected in a similar system as the regional. A minority may have national self-government, if it has minority self-governments in at least four settlements. The number of representatives varies according to the number of self-governments organised at a local level.

The local electoral offices maintain the registry of voters entitled to participate in the election of minority self-governments. A voter's name can only appear in one minority registry; otherwise all his registrations are invalid. The request for registration must contain the following: the voter's name, address, identity number, his statement on affiliation to a minority, and his signature. The head of the local electoral office decides on registration; he is entitled to check the person's citizenship and right to vote. If the request contains all the elements prescribed by law, registration cannot be rejected. A complaint against rejection may be filed with the head of the local electoral office (in other words, with the person who made the original decision).

Languages:

Hungarian.