a)  Hungary / b)  Constitutional Court / c) / d)  05-11-2003 / e)  50/2003 / f) / g)  Magyar Közlöny (Official Gazette), 2003/126 / h) .
Keywords of the systematic thesaurus:
Constitutional Justice - Jurisdiction - The subject of review - Parliamentary rules.
Constitutional Justice - Jurisdiction - The subject of review - Failure to act or to pass legislation.
General Principles - Separation of powers.
General Principles - Rule of law.
Institutions - Legislative bodies - Powers - Powers of enquiry.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Right to information.
Keywords of the alphabetical index:
Parliament, enquiry, procedure / Parliament, enquiry, guarantees / Legal gap.
The legal regulations governing investigation and control activities by standing and temporary parliamentary committees are, largely, incomplete. There are no statutory conditions ensuring the efficiency of examinations by the committee, or which confirm the sui generis nature of the committee's inquiry. Neither are there any legal guarantees safeguarding the fundamental rights of citizens against parliamentary committees carrying out investigations as organs applying the law based on public authority.
This omission has resulted in an unconstitutional situation. One the one hand, the gap in regulation has failed to ensure the efficient performance of investigations by the parliamentary committees. Potentially, this could give rise to an encroachment upon the Parliament's control function, which stems from the doctrine of separation of powers. There is also a danger of a breach of freedom of public debate, enshrined within Article 61.1 of the Constitution. On the other hand, the legislative gap may jeopardise personal rights and the freedom of private life originating from Article 54.1 and 59.1 of the Constitution. It could also prevent the exercise of the right to legal remedy, enshrined in Article 57.5 of the Constitution, and threaten the security of fundamental procedural guarantees in a State under the rule of law, in the course of investigations by the committees.
I. The Constitutional Court received several petitions regarding the carrying out of inquiries by committees. One petitioner called for a finding of an unconstitutional omission of legislative duty, as the activities and rights of parliamentary ad hoc committees and committees of inquiry are only defined in parliamentary resolutions and decisions by parliamentary committees, not in Acts of Parliament. He argued that this violated the constitutional provisions on the restriction of fundamental rights, the right to court, the right to legal remedy, and the right to the protection of personal data.
II.1. According to Article 49.1 of Act XXXII of 1989 on the Constitutional Court (referred to here as "the Act"), an unconstitutional omission of legislative duty may be established if the legislature has failed to fulfil its legislative duty when mandated by a legal norm, and this has given rise to an unconstitutional situation. The Constitutional Court shall establish an unconstitutional omission if the guarantees necessary for the enforcement of a fundamental right are lacking, or if the omission of regulation jeopardises the enjoyment of a fundamental right.
In the case in point, in order to determine whether there had been an unconstitutional omission of legislative duty, the Constitutional Court had to examine whether the regulations governing parliamentary committees are deficient in a sense that qualifies as an omission. Where an omission can be established, it has to be decided whether or not it has caused an unconstitutional situation.
Another closely related question is whether the legislative gap needs addressing by means of an Act of Parliament, or whether it is sufficient to adopt a normative parliamentary resolution. In order to answer these constitutional questions, the Constitutional Court examined, in a broader constitutional context, the parliamentary committees' functions of inquiry and control and the legal regulation thereof.
2. The Constitutional Court examined the constitutional requirements with which the legislature must comply, in regulating parliamentary committees' activities of inquiry and control.
Parliamentary committees' functions of inquiry and control, which result directly from Article 21 of the Constitution, are based on two constitutional rules.
One of them is the requirement of the rule of law under Article 2.1 of the Constitution, which includes a basic criterion of constitutionality in terms of content: the principle of the separation of powers. The right of Parliament to carry out investigations through its committees and its obligation of having ministers report serve the purpose of controlling the work of the Government, i.e. the executive branch. The rights of investigation and the obligations of reporting secure information for the Parliament. This is indispensable for exercising control.
Parliamentary committees' inquiry functions stem from Article 61.1 of the Constitution. This acknowledges as a fundamental right the right of access to data of public interest (freedom of information) and the freedom of expressing one's opinion. Being informed and knowing the facts are pivotal to freedom of expression. Parliament plays a prominent and indispensable role not only in setting norms but also in debating public matters. Parliamentary committees carrying out inquiries in public matters and hearing officials under public law are important channels for the debating of matters of public interest.
3. In the claim for unconstitutional omission of legislative duty, the petitioner suggested that breaches had occurred of several constitutional provisions. This was because the activity of parliamenttary ad hoc committees and committees of inquiry is regulated by parliamentary resolutions rather than by Acts of Parliament, which are universally binding.
Articles 54.1 and 59.1 of the Constitution protect the privacy of people as well as their private secrets, good standing, reputation, and personal data. A question closely related to the protection of privacy is how the constitutional guarantees required in other procedures, and in particular in criminal proceedings, are enforced during proceedings conducted by parliamentary committees carrying out investigations. Under the Hungarian rules, the legal status of persons under investigation and obliged to testify or invited to a hearing is not clear. Under Article 21.3 of the Constitution, everyone is obliged to testify before parliamentary committees. At the same time, it is evident on a constitutional basis that the prohibition on self-incrimination and the presumption of innocence provided for in Article 57.2 of the Constitution are to be enforced unconditionally in proceedings other than criminal ones.
Article 57.1 of the Constitution guarantees the right to a court trial. Article 57.5 acknowledges the right to legal remedies against decisions by judicial and administrative organs and other authorities. The activity of parliamentary committees carrying out investigations qualifies as an activity of applying the law on the basis of public authority. The requirement of the availability of legal remedies against decisions passed in the course of the above activity when they affect the rights, obligations and lawful interests of citizens and other persons derives from Article 57.5 of the Constitution.
Under the rules in force in Hungary at present, parliamentary committees carrying out investigations are not bound to adopt formal resolutions on their decisions and measures affecting the rights and obligations of citizens. There are no normative requirements regarding legal remedies against the committees' decisions. Legal remedies are not available against decisions made by parliamentary committees as they cannot sue or be sued. Neither can they be regarded as public administration bodies. No procedural Act applies to parliamentary committees performing inquiries.
4. Based on the above facts, the Constitutional Court held that the Parliament made an unconstitutional omission of legislative duty in failing to regulate, by Act of Parliament, inquiries performed by the standing and the temporary committees of the Parliament. It had also failed to create the statutory preconditions for the effectiveness of inquiries by the parliamentary committees.