a) Hungary / b) Constitutional Court / c) / d) 27-06-2006 / e) 88/B/1999 / f) / g) Magyar Közlöny (Official Gazette), 2006/6 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Margin of appreciation.
Fundamental Rights - Equality - Scope of application - Employment - In public law.
Fundamental Rights - Economic, social and cultural rights - Right to strike.
Keywords of the alphabetical index:
Military, right to strike / Police, right to strike / Civil servant, right to strike, discrimination.
The right to strike is not protected by Article 8.2 of the Constitution. It is a unique right, which, under Article 70/C.2 of the Constitution, may be exercised within the framework of the statute regulating such a right. Therefore, parliament has a greater freedom to regulate it.
I. Two petitions challenged the constitutionality of the first sentence of Article 3.2 of the Act VII of 1989 on strikes. According to this provision, judicial organs, the Hungarian Armed Forced, armed bodies, law enforcement agencies and national security services are not allowed to strike.
According to one of the petitions, this provision is discriminatory and violates the right to employment of civil servants working for armed forces, secured by the Constitution. The other petition alleged that the prohibition of striking in the case of civil servants working for police forces breached Article 70/A.1 of the Constitution. They alleged that it was not the duty of civil servants to carry out the basic tasks of the police, they therefore asked for the annulment of the provision.
II. When judging the petition, the Court first had to clarify the place of the right to strike among fundamental rights. The right to strike is generally acknowledged in modern states that respect economic and social rights, as a safeguard of collective action in the case of economic and social conflicts of interests.
Articles 8.1.d and 8.2 of the International Covenant on Economic, Social and Cultural Rights and Appendix to Article 6.4 of the European Social Charter concern the right to collective action, including the right to strike. International agreements born under the aegis of International Labour Organisation (ILO) contain no direct provisions on the right to strike. The case law of the ILO, however, recognises the right to strike as a right that is indispensable for effective collective negotiations, which enjoys the protection of these agreements.
Under Article 70/C.1 of the Constitution, everyone has the right to establish or join organizations together with others in order to protect his or her economic or social interests. According to Article 70/C.2 of the Constitution, the right to strike may be exercised within the framework of the statute regulating such a right, but a majority of two-thirds of the votes of MPs present is required to pass the statute on the right to strike (Article 70/C.3 of the Constitution).
The Constitution neither determines the field of those entitled to exercise the right to strike, nor the content or conditions of this right. It entrusts the overall regulation of the right to strike to a separate Act. On the basis of Articles 70/C.2 and 70/C.3 of the Constitution, the Act regulates the field of those entitled to exercise the right to strike; for what purpose it is possible to exercise the right to strike; and it also settles the economic, legal and procedural conditions of a lawful strike; it states the manifestation of the right to strike, the guaranteed provisions for the protection of those participating in a lawful strike and it also determines the cases where a strike is unlawful.
The right to strike, therefore, may be exercised within the framework of the statute regulating such a right. However, that does not mean that this legislative entitlement is without any constitutional restraints. The legislator is compelled to secure the conditions for practicing the right to strike, any exclusion of this right can only occur on a constitutional basis, for the protection of a constitutional right, aim or value.
Thereafter, the Court examined whether the exclusion of armed forces, armed bodies and security services (and at the same time the exclusion of civil servants, who worked for these bodies) from the right to strike, under Article 3.2 of the Act, had a constitutional basis.
The Hungarian Armed Forces and law enforcement agencies protect constitutional order and fundamental human rights. The armed forces and law enforcement agencies fulfil their duties with the staff appointed under relating Acts. According to these Acts, civil servants employed by these bodies are also members of their staff. This staff is the only one entitled to secure the effective fulfilment of the constitutional duties of armed forces and law enforcement agencies. In case of a strike by civil servants directly helping those with official duties, the lack of their work or its delay can seriously set the organization's work back, which can detain the fulfilment of state duties, the protection of life and property, that is, the manifestation of others' fundamental rights.
On the basis of the above and as concerns civil servants working for the armed forces and law enforcement agencies, the prohibition of striking under Article 3.2 has a constitutional justification. In this way a violation of Article 70/C.2 of the Constitution cannot be found.
In addition, the Court held that Article 3.2 of the Constitution contained the same provision for the enlisted members of the armed forces and law enforcement agencies and civil servants working for them, in terms of the practice of the right to strike, therefore no violation of Article 70/A.1 could be found.
There is no unconstitutional discrimination between civil servants working for the armed forces, law enforcement agencies and public servants working in the civil sector.
The civil servants employed by armed forces and law enforcement agencies fulfil their duties in organizations, the effective and undisturbed functioning of which is of special constitutional importance. Due to the legal status of armed forces and law enforcement agencies, which is different from other bodies of public service, together with their constitutional situation and function, in relation to the practice of the right to strike, civil servants working for these bodies cannot be viewed as falling into the same sphere of regulation as civil servants working for administrative bodies and public institutions. The violation of Article 70/A.1 of the Constitution could not be found here either.
Constitutional Judge Péter Kovács attached a dissenting opinion (joined by Judge László Kiss) to the judgment.
Among civil servants working for law enforcement agencies, there are people whose duties are not directly related to the protection of others' fundamental rights. The exclusion of these civil servants is not self-evident. In this respect, the legislator has to work out which employees, status, spheres of work within the personnel are the ones that serve the effective protection of citizens' rights.
One of the main problems of the current regulation is its lack of differentiation.
On the other hand, it is necessary for the legislator to compensate, through the means of legal guarantees, for the lack or restriction of the right to strike. Such guarantees are the adequate, impartial and quick conciliatory or arbitratory procedures available for all parties in all phases of the settlement of the debate, the decisions of which can fully and immediately be carried out. The legislator has developed this compensational mechanism effectively for the official members of armed forces. However, this was not extended to civil servants employed there. This category of civil servants therefore neither has the right to strike nor the effective mechanism to manifest their interests. This is the other fundamental problem of the current regulation.