a) Hungary / b) Constitutional Court / c) / d) 24-04-2008 / e) 54/2008 / f) / g) Magyar Közlöny (Official Gazette), 2008/65 / h) .
Keywords of the Systematic Thesaurus:
Institutions - Elections and instruments of direct democracy - Electoral system - Method of voting.
Institutions - Elections and instruments of direct democracy - Voting procedures.
Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.
Keywords of the alphabetical index:
Election, voting abroad.
An unconstitutional situation had arisen, as Parliament had failed to secure the conditions of exercising the right to vote for those constituents who were staying in Hungary on polling day at foreign representations, and those who were abroad on the day of the Hungarian elections.
I. Several petitions reached the Court concerning Article 96/A.1 of the Act of 1997 on Electoral Procedure. This provides that in the first round, votes may be cast at foreign representations on the 7th day before polling day in Hungary, between 6 a.m. and 7 p.m. local time. At foreign representations where the time difference is -1 hour or -2 hours compared to Central European time zone, between 6 a.m. local time and 7 p.m. CET. At foreign representations on the American continent, votes may be cast on the 8th day prior to voting in Hungary, between 6:00 a.m. and 7:00 p.m. local time.
One of the petitioners suggested that there had been a legislative omission resulting in unconstitutionality, as Parliament had failed to secure the conditions of exercising the right to vote for those constituents who were staying in Hungary on polling day at foreign representations, and those who were abroad on the day of the Hungarian elections. The petitioner contended that this omission resulted in a breach of the right to vote.
The petitioner also argued that Article 96/A.1 contravened Article 8.2 of the Constitution, since it restricts an essential part of a fundamental right by not guaranteeing the possibility of voting at foreign representations for all persons staying abroad at the time of parliamentary elections - as opposed to European parliamentary elections.
Another petitioner stated that Article 96/A.1 meant a technical barrier, violating the principle of the generality of the right to vote, thus restricting Article 70.1 of the Constitution. There are other methods of stating the results of elections, and securing the right to legal remedy. With respect to Article 8.2 of the Constitution, the restriction of the right to vote is unnecessary and disproportionate.
II.1. The Court began by examining the practice of other states in relation to voting from abroad. The majority of European states recognise the institution of voting abroad. The Italian legal system deals with the subject in a unique way. Under Article 48.4 of its Constitution, when there are elections for chambers, constituencies must be created abroad. Under the Act on Elections, eighteen representatives are elected in the foreign constituency. The right to vote can only be exercised by citizens residing permanently abroad. It does not extend to those abroad for a temporary period.
There are two methods of voting abroad, namely by post and by voting at foreign representations.
The legal electoral regimes of Germany, Switzerland and the United Kingdom allow for postal voting. The Irish legal system also allows for postal voting, but only for those who would find it disproportionately difficult to vote in their constituencies. Examples include members of the armed forces, the police, diplomatic corps, and their spouses.
Electronic voting is a special kind of postal voting. Here, votes can be cast by means of a network - characteristically, but not necessarily on the Internet. Trials of this system are taking place in the United Kingdom, Switzerland, Estonia and Austria.
Other states make it possible to vote abroad by voting at foreign representations. Hungary is one example; others include Denmark, Finland and Norway (with individual exceptions for referenda).
2. The provision of the Act in question draws a distinction between voting in Hungary and voting abroad only in the date of voting. The rationale behind Article 96/A is the swift and accurate determination of the results of the elections, thus establishing legal certainty, which in the Court's jurisprudence is an important element of the rule of law. This is particularly important in the first round of the elections, as a determination of validity and efficiency is necessary before the second round, which takes place two weeks later. If this procedural principle were not manifested, it would be impossible to exercise the right to legal remedy set out in Article 57.5 of the Constitution.
Thus, the fact that Article 96/A.1 sets the date for voting at foreign representations preceding the date of the elections in Hungary does not result per se in a breach of Article 70.1 of the Constitution.
3. The petitioner also pointed out that Article 96/A.1 restricts the principle of the generality of the right to vote, which is against Article 8.2 of the Constitution. In employing Article 71.1 of the Constitution, the generality of the right to vote is not a fundamental right in itself, but a basic principle, which is the guarantee of the democratic nature of the right to vote. For this reason, by employing the necessity/proportionality test, which judges the constitutionality of provisions restricting fundamental rights regulated in the Constitution, the procedural rules for elections could not be described as unconstitutional. The Constitutional Court rejected the petition to repeal Article 96/A.1.
4. The Court also assessed whether there was unconstitutionality manifested in omission in the fact that the legislator did not guarantee the exercise of the right to vote for those constituents who were staying in Hungary at the time of voting at foreign representations, but abroad at the time of the elections in Hungary. Those constituents could practice their right to vote neither abroad, nor in Hungary.
During parliamentary elections, the generality of the right to vote means that all citizens of age and with a permanent address within Hungary, and, with the exceptions given in Article 70 of the Constitution, have an active and passive right to vote. As a result barriers concerning the elections cannot be modified by means of law, the legislator has no right to set further objective barriers exceeding constitutional barriers. The legislator can only bind the exercise of the right to vote to procedural conditions. Any restriction of the equal and general nature of the right to vote can only be acceptable and compatible with the Constitution for a very significant reason of principles. Convenience, surmountable technical difficulties or the aim of swift publicity cannot form the basis for restricting rights.
The general nature of the right to vote cannot be made absolute. However, the legislator is under a constitutional duty to make the exercise of the right to vote as widely accessible as possible. Under Article 96/A.1 in the first round of parliamentary elections, voting at foreign representations takes place one week (or, in the case of the American continent, eight days) before the elections in Hungary. As a result, those constituents who are staying in Hungary on the day of voting in foreign representations, but abroad on the day of the elections in Hungary, cannot practice their right to vote. The fact that there is no other legal institution available to these constituents, to enable them to exercise their right to vote, results in a breach of Articles 70.1 and 71.1 of the Constitution. For this reason, the Court stated that unconstitutionality manifested in omission, and called upon Parliament to fulfil its legislative duty.