HUN-2012-3-008
a)  Hungary / b)  Constitutional Court / c) / d)  20-12-2012 / e)  42/2012 / f)  On the annulment of certain provision of the Act on Legal Aid / g)  Magyar Közlöny (Official Gazette), 2012/175 / h) .
 
Keywords of the systematic thesaurus:
 
 
Fundamental Rights - Equality.
Fundamental Rights - Equality - Affirmative action.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to counsel - Right to paid legal assistance.
 
Keywords of the alphabetical index:
 
Constitutional Court, access, individual / Legal aid, right.
 
Headnotes:
 
Provisions on legal aid should be available also for proceedings before the Constitutional Court. There should be no exclusion of persons with reduced financial resources from access to legal aid financed from the state budget, necessary for the effective enforcement of their rights in the course of constitutional complaint proceedings.
 
Summary:
 
I. Section 51.2 of Act CLI of 2011 on the Constitutional Court declares legal representation to be mandatory in Constitutional Court proceedings. However, according to Section 3.3.c of the Act LXXX of 2003 on Legal Aid, persons submitting a constitutional complaint may not receive legal aid.
 
The Commissioner of Fundamental Rights requested the Constitutional Court to review the constitutionality of Section 3.3.c of the Act LXXX of 2003 on Legal Aid (hereinafter, the "Act on Legal Aid"). The Commissioner contended that the contested provision raised several constitutional concerns. It violated the prohibition of discrimination asserted in Article XV.2 of the Fundamental Law and was contrary to the principle of equal opportunity stated in Article XV.4 of the Fundamental Law. The provision barred persons with reduced financial resources from the possibility of making use of the mechanism of making a constitutional complaint. In addition, the provision violated the right to an effective remedy guaranteed by Article XXVIII.7 of the Fundamental Law, since the Constitutional Court, as the highest forum for legal redress, plays an outstanding role in the protection of fundamental rights.
 
In its Opinion no. 665/2012 on Act CLI of 2011 on the Constitutional Court of Hungary the Venice Commission recommended that provisions on legal aid should be available also in proceedings before the Constitutional Court. (CDL-AD (2012)009 paragraphs 43, 54).
 
II. The Court held that the concept of the principle of equality under the Fundamental Law of 2012 has almost the same meaning as under the previous Constitution. Previously, the general equality rule was deduced from the right to human dignity (Article 54.1 of the former Constitution) and the prohibition of discrimination (Article 70/A of the former Constitution) Now, the general equality rule is enshrined in Article XV.1 of the Fundamental Law, which states: "everyone shall be equal before the law". In the Court's view, excluding access to legal aid in the course of constitutional complaint proceedings resulted in inequality in two ways. First, the institution of legal aid was established so that professional legal advice and representation could be given to those persons who, due to their precarious social situation, would not be able to pay the lawyer's fee related to the solution of legal disputes and the enforcement of their rights. There is no constitutionally acceptable reason for excluding the possibility to use this type of assistance in the course of constitutional complaint proceedings. Therefore the challenged provision violates Article XV.1 of the Fundamental Law.
 
Second, under Article XV.2 of the Fundamental Law, Hungary guarantees fundamental rights to every person without discrimination on, inter alia, the ground of financial situation. The aim of the constitutional complaint is to protect fundamental rights. In order to ensure to everyone equality with regard to protection of their fundamental rights, the equal enforcement of rights by means of a constitutional complaint must be ensured to everyone on an equal basis. As a consequence of Section 3.3.c of the Act on Legal Aid, those people who do not possess sufficient financial resources to pay the lawyer's fee are not able to submit a constitutional complaint. This resulted in discrimination based upon a person's financial situation. Last but not least, the Court held that it follows from Articles XV.4 of the Fundamental Law that the legislator has to facilitate the realisation of equal opportunity with special measures.
 
III. Two justices – Egon Dienes-Oehm, Béla Pokol – attached dissenting opinions to the decision.
 
Languages:
 
Hungarian.