a) Hungary / b) Constitutional Court / c) / d) 05-10-2006 / e) 47/2006 / f) / g) Magyar Közlöny (Official Gazette), 2006/122 / h) .
Keywords of the Systematic Thesaurus:
Sources - Hierarchy - Hierarchy as between national sources.
Fundamental Rights - Civil and political rights - Electoral rights.
Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.
Keywords of the alphabetical index:
Voting / Universal suffrage.
A situation whereby a citizen with a certificate can vote in the first round of an election, and the first round proves successful and where in the absence of any rule to the contrary, he can then take part in the election of a new candidate either at his own address or in a different constituency where the first round has proved unsuccessful, if he is in possession of a certificate for that constituency contravenes the principle of equal suffrage.
The Court therefore recommended that Parliament should legislate to eliminate any possibility of abuse of the right to vote.
I. Several petitions were submitted to the Constitutional Court, regarding certain provisions of Act C of 1997 on Electoral Procedure (referred to here as "the Act") and those of Decree no. 60/2005 of 21 December of the Ministry of the Interior which brought the Act into force (referred to here as "the Decree"). Under these provisions, voters who are away from their address but in Hungary on polling day may present a certificate obtained from the head of their local election office or from the ballot counting committee of the area where they are staying. They can then be entered on the electoral register, and these certificates will enable them to vote in the area where they are staying (see Article 89). The petitioners suggested that this situation was open to abuse. A citizen with a certificate could vote in the first round, and that round could prove to be successful. In the absence of any rules to the contrary, the voter could then participate in the election of another candidate, either at his own address, or (if he holds a certificate) at a different constituency, where the first round had been unsuccessful. This would result in a violation of the principle of equal suffrage as enshrined in Article 71.1 of the Constitution.
The petitioners also drew attention to provisions of the Decree, under which a voter's name could be entered in a register from which they had been withdrawn, if they had obtained the right certificate. One of the petitioners also pointed out that voters who are away from their address but are in Hungary cannot legally use their certificates on polling day to vote for candidates in their own constituencies. Voters who are not in Hungary on polling day are able to do this, which puts them in a more advantageous situation than those in Hungary. The petitioner argued that this was discriminatory, and in contravention of Article 70/A of the Constitution. Another petitioner pointed out that voters who were away from their domicile or residence on polling day could not vote for local government representatives and mayors.
II.1. The Constitutional Court referred to their Decision no. 338/B/2002, where they had already examined the question of certificates for voters. They had decided that this practice was in line with the Constitution, and was an important feature of universal suffrage. Those provisions of the Constitution concerning the right to vote do not necessarily mean that voters away from their domicile must be granted the possibility of voting for candidates running for office in their constituencies.
The Court ruled that there were valid constitutional concerns as to the violation of the principle of universal suffrage when citizens vote on the strength of a certificate. Nevertheless, it did not repeal the disputed provisions of the Act, as this would result in greater damage to the principle of the universal right to vote than is the case under the legislation currently in force. Instead, the Court ruled that there had been an unconstitutional omission to legislate, and requested Parliament to pass legislation to eliminate the possibility of abuse, by 30 June 2007.
2. The petition as to the constitutionality of the Decree was upheld. The Court observed that, under Article 89.2 of the Act, the head of the local election office should delete voters to whom they issue certificates from the electoral register. Technically, the Act does not allow for the possibility of the repeated registration of voters in their electoral district on polling day, and as a result, there can be no reverse regulation in the Decree. The Decree also gives scope for voters with certificates to decide, after an unsuccessful first round, whether to vote in their own constituency or in the one on the certificate. This possibility violates the fairness of elections.
3. The Court took a different view of the points raised about local elections. Here, the general principle of the right to vote has to be taken into account, as well as Article 42 of the Constitution. This sets out voters' rights to local government. Local government is the independent, democratic management of local affairs affecting the electorate as a whole, and the exercise of local public authority in the interests of the population. The law does not exclude people who are away from their usual address on polling day from the right to vote, as they can still vote in the constituency in which they are residing at the time. The Constitutional Court therefore rejected the petition.
In his concurring opinion, Judge Péter Kovács observed that Parliament has to consider international legal obligations when enacting election law, as well as recommendations from international organisations. He expressed the view that there are inconsistencies in the Act, which could be removed if the regulations on the practice of voting rights were made more stringent.
Judge András Bragyova did not think the disputed provisions of the Act should be repealed. He summed up his reasoning in a dissenting opinion, with which Mihály Bihari and László Kiss concurred. In his view, a distinction had to be drawn between the provisions as they dealt with different subjects. Article 89 of the Act is concerned with the conditions for issue of certificates. The provision of the Decree under discussion relates to the administration of the electoral register. The law governing the administration of the electoral register is Act 66.2, under which the ballot counting committee enters voters in the register if they have a certificate and can certify that their address is within the constituency, provided that they do not feature on the list of disenfranchised citizens. The Decree is in conformity with Act 66.2. Under this provision, ballot counting committees have to act in a similar way as they would if the provision of the Decree was repealed. Judge András Bragyova was of the opinion that certificate misuse stemmed from a proportional system with two rounds. Votes were probably split at random between supporters of the different candidates.