HUN-2008-2-007

a) Hungary / b) Constitutional Court / c)  / d) 03-07-2008 / e) 99/2008 / f)  / g) Magyar Közlöny (Official Gazette), 2008/98 / h) .

Keywords of the Systematic Thesaurus:

01.03.04.12

Constitutional Justice - Jurisdiction - Types of litigation - Conflict of laws.

02.01.01.04

Sources - Categories - Written rules - International instruments.

03.07

General Principles - Relations between the State and bodies of a religious or ideological nature.

05.04.02

Fundamental Rights - Economic, social and cultural rights - Right to education.

Keywords of the alphabetical index:

Education, school, religious, state funding.

Headnotes:

This case dealt with the state support of churches in comparison with that of local government, and the entitlement of church institutions to such support.

Summary:

I. Three members of the Hungarian Parliament asked the Constitutional Court to review the constitutionality and the conformity of some provisions of Act LXXIX of 1993 on Public Education with the agreement between the Republic of Hungary and the Holy See, signed on 20 June 1997. This agreement, which deals with the finance of public services and religious activities of the Catholic Church of Hungary, is referred to as "the Vatican Treaty".

The petitioners had concerns over Article 118.4 of the Act. In their view, it violated the principle of sector neutral finance. Moreover, the deadline for lodging an appeal for normative budgetary support was a term of preclusion. Article 118.4 stated that the normative budgetary contributions given out to non-state and non-local government maintainers of institutions could not be less than the normative support given out to local governments on the same basis.

II. The Constitutional Court pointed out that under Article 2 of the Vatican Treaty, institutions of public education maintained by the Church are entitled to the same budgetary support as state and local government education institutions. However, Article 118.4 of the Act states that the normative budgetary and other (that is, non-normative) support of churches together must be the same as the normative budgetary support of local governments. As a result, church institutions are entitled to far less state support than those of local government. This brings Article 118.4 of the Act into conflict with the Vatican Treaty. The Constitutional Court struck the term "other supports" from Article 118.4, in order to give church institutions the same normative budgetary support entitlement as those of local government.

However, the Constitutional Court did not share the constitutional concerns over the strict deadlines for the lodging of appeals over budgetary support. It observed that strict deadlines are necessary for the continued operation of the budget. This also serves the requirement of legal certainty.

András Holló made a dissenting opinion to the decision, which Miklós Lévay joined. They contended that the Vatican Treaty requires the state to give the same amount of financial support to church, state and local government schools. This, however, does not necessarily mean that the normative budgetary support has to be the same for church and local governments. All of the legal resolutions concerning the finance of church education institutions must be considered, in order to determine whether the given financial support conflicts with the Vatican Treaty. In Holló's opinion the legal situation that is in breach of the Vatican Treaty arose because the current legal regulations do not contain the procedural provisions that would give adequate guarantees to the church authorities maintaining these institutions that they will gain access to state support undertaken in the Vatican Treaty. Holló's view was that the Constitutional Court should have found unconstitutionality manifested in omission.

András Bragyova also attached a dissenting opinion to the judgment. He stated that the Constitutional Court paid insufficient attention to the fact that in this case it did not conduct a posterior review of legal norms, but a review of conformity with Treaties. In Bragyova's opinion, the measure of control in this procedure is the interpretation of the international legal instruments in line with international law. In constitutional proceedings, an international treaty cannot be interpreted in a way that is contrary to international law. If there is a question over the meaning of the international treaty, the Constitutional Court must await the outcome of the international legal debate about the treaty. It cannot find violation of the international treaty, if the debated Hungarian legal provision fits any of the possible meanings of the international treaty. However, the interpretation of Article 2 of the Vatican Treaty, which was the basis for the Constitutional Court's annulment, has long been debated by the Hungarian State and the Holy See. For this reason, the petition requested an interpretation of the Vatican Treaty, which, however, falls outside the competence of the Court. Thus, the petition had to be rejected.

Agreeing with András Holló's dissenting opinion András Bragyova was also of the opinion that Article 118.4 could not be annulled even if the Constitutional Court undertook the interpretation of the international treaty. Bragyova would also have preferred the Court to have found unconstitutionality manifested in omission. He pointed out that based on the Vatican Treaty itself, Article 118.4 could not have been annulled, because it referred not only to Catholic, but all non-state, non-local governmental institutions.

Cross-references:

- Decision 22/1997, Bulletin 1997/2 [HUN-1997-2-005].

Languages:

Hungarian.