a)  Hungary / b)  Constitutional Court / c) / d)  30-04-2008 / e)  63/2008 / f) / g)  Magyar Közlöny (Official Gazette), 2008/69 / h) .
Keywords of the systematic thesaurus:
Institutions - Legislative bodies - Political parties - Financing.
Institutions - Legislative bodies - Political parties - Role.
Fundamental Rights - Equality - Criteria of distinction - Political opinions or affiliation.
Keywords of the alphabetical index:
Political party, equal treatment / Political party, foundation, state support, equality.
It is not unconstitutional for the state to finance foundations close to political parties, provided such foundations are independent from parties both legally and effectively, fulfilling their duties independently and freely. When giving state financial support, however, the results of past political elections cannot be the constitutional basis for differentiating between political parties. In a democracy, no law can favour certain parties in forthcoming national elections based on the results of previous political elections.
I. In this decision, the Constitutional Court examined the constitutionality of certain provisions of Act XXXIII of 1989 on the financial management and operation of political parties and Act XLVII of 2003 on foundations helping the operation of political parties.
II. The decision emphasised that under Article 3 of the Constitution, the state cannot hinder the formation and the activity of parties that are established within the constitutional framework, as this would hinder the principle of freedom of association. The parties can be of various types; they may have differing financial situations. They may start from different positions in the competition for constituents’ votes, and they may be able to participate in the formation and expression of the will of the people to a different extent. If the legislature creates a rule relating to the state support of parties, it must take these differences into consideration.
Several decisions of the Constitutional Court have emphasised that, for the sake of Parliament’s decision-making ability and the stability of government it is acceptable for parties with the least support not to have access to parliamentary mandates. In order to have state support, a party has to be able to fulfil its constitutional duty. The jurisprudence of the Constitutional Court demands rules related to the state support of parties to be adjusted to their duty of participating in the formation and expression of the will of the people, and to their social support.
Besides the operability of the parliamentary system, the Constitutional Court also emphasised that the fundamental value of democratic society is the ability of the multi-party system to renew itself, that is, the system’s ability to adjust to changes in society, to answer the changing needs of constituents. The basis of parliamentary democracy is the competition between political parties for the support of constituents. The healthy operation of democracy is impossible without political pluralism and the equal opportunity of parties to participate in the political contest. For this reason the state has to remain neutral in political contests and in creating legal rules regulating the conditions of this contest.
When creating rules relating to parties, the legislator has to treat parties equally, taking their interests into consideration with equal impartiality and circumspection. It cannot act arbitrarily when making a decision. The legislator has to legislate with the purpose of state support in view, that is, that parties should be able to fulfil their duties laid down in the Constitution. A regulation on state support cannot restrict the freedom of political parties to compete, as is demonstrated in case no. U-I-367/96. of the Slovenian Constitutional Court, and in Decision no. US 53/2000 of the Czech Constitutional Court (Bulletin 1999/1 [SLO-1999-1-003]; Bulletin 2001/1 [CZE-2001-1-005]).
A statute validly in force must contain regulations that are not only "seemingly" neutral. It also has to ensure that the legal norm that applies to all parties equally should not result de facto in a constitutionally unsubstantiated discrimination in the case of a well-defined group of parties. Accordingly, if the statute allows discrimination between the parties, even though the legislator has taken account of equality in other respects, there must be a constitutionally acceptable reason for that discrimination.
In the light of the above, the Court stated that if the legislator decides to support the parties, then, based on the legal regulation financial support must be given to all parliamentary parties. This does not, in itself, secure the equal opportunities of different political powers in the elections. For this reason, state support must be extended to all political parties commanding the support of the bulk of the constituents, and which can nominate candidates in the parliamentary elections [Guidelines and Report on the Financing of Political Parties adopted by the Venice Commission, 9-10 March 2001, A. Regular Financing, a. Public Financing].
The Court stated that Article 70/A.1 of the Constitution is violated by the provision to the effect that full financial support can only be given to the foundation of a party that had had representatives in Parliament in at least two consecutive parliamentary cycles. The Court also found the provision uncons-titutional, which gave full financial support exclusively to parties that formed factions in the forming session of Parliament.
The decision also annulled the provision, which secured basic, rather than full, financial support to the formation of parties that were excluded from Parliament after two cycles with a faction, and to the formation of parties that formed factions in the forming session of Parliament but had not been present in Parliament previously.
The reason for repeal was that the legal provision drew a distinction between parties merely on the basis of previous presence in Parliament. This distinction, however, was not found constitutionally acceptable by the Court, because it was irrelevant from the perspective of the duty of parties laid down in the Constitution, their participation in the formation and expression of the will of the people. The basis of parliamentary democracy is competition for the support of constituents, and regular elections. However, we cannot draw conclusions from the results of a party in previous elections, neither as to future results, nor the extent to which it is able to fulfil its constitutional duties.
With effect from the date of the decision, the Court directed the repeal of provisions that made it impossible for the Tax Authorities and the Health Services to keep a financial-economic check on party formation. The Constitutional Court also found it unconstitutional that the prosecutor’s competence differs between party formation and the formation of other entities.
Finally, the Constitutional Court found unconstitutionality manifested in omission, as there was no legal guarantee that parties founded under the auspices of the legislation on the operation of parties would use the financial support they were given to cover setting-up expenses. It could become covert party financing.
Mihály Bihari attached a dissenting opinion to the decision, which was joined by András Bragyova, Péter Kovács, Péter Paczolay, and László Trócsányi. According to the dissenting opinion as long as there is a reasonable justification for the legislator to differentiate between parties with a parliamentary faction and parties outside parliament in terms of their foundations being entitled to financial support, it is not possible to state the violation of Article 70/A.1 of the Constitution. This is true even if the legislator differentiates between parties with a parliamentary faction on the basis of whether they have a permanent presence in Parliament, when deciding on the extent of the financial support of their foundations.
Other Constitutional Courts:
- Constitutional Court of Slovenia, no. U-I-367/96, 11.03.1999, Bulletin 1999/1 [SLO-1999-1-003];
- Constitutional Court of the Czech Republic, no. US 53/2000, 27.02.2001, Bulletin 2001/1 [CZE-2001-1-005].