a) Hungary / b) Constitutional Court / c) / d) 07-01-2013 / e) 1/2013 / f) On the annulment of certain provisions of the not yet promulgated Act on Electoral Procedure / g) Magyar Közlöny (Official Gazette), 2013/3 / h) .
Keywords of the Systematic Thesaurus:
Institutions - Elections and instruments of direct democracy - Eligibility.
Institutions - Elections and instruments of direct democracy - Electoral campaign and campaign material - Access to media.
Fundamental Rights - Equality - Scope of application - Elections.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.
Keywords of the alphabetical index:
Election, early registration, mandatory / Election campaign, limitation.
Mandatory «early voter registration» restricts the right to vote without constitutional justification. Limitations on the publication of political advertisements and public opinion polls violate freedom of expression.
I. At its session on 26 November 2012, Parliament adopted the Act on Electoral Procedure (T/8405), which would have introduced prior voter registration in a central register. The President of the Republic did not sign the Act because he had concerns over its constitutionality. Exercising the power vested in him by Article 6.4 of the Fundamental Law (hereinafter, the «FL»), he initiated a constitutional review of several provisions of the Act. The President was concerned that the challenged provisions of the Act concerning mandatory pre-registration requirement posed a disproportionate restriction on the right to vote. Several provisions concerning election campaigning and advertising were, in his view, contrary to Article IX of the FL.
Under Section 82 of the Act, a central register would have taken the format of a list of those who had previously registered at the local notary, expressing their wish to vote. Section 88 outlined the procedure for registering, which could be done in person or in part electronically. Those living outside the borders could have registered by post. Section 106 set a deadline of 15 days prior to the elections for eligibility for inclusion within the central register.
II. The Constitutional Court noted the Code of Good Practice in Electoral Matters published by the Venice Commission in which the Commission pointed out the importance of regular upkeep of domicile registers. It also referred to the relevant case-law of the European Court of Human Rights concerning the right to free election, in particular the decision delivered in Georgian Workers' Party v. Georgia, which contained several legal opinions that went against the practice of voter registration unless absolutely necessary due to a lack of other reliable registers.
Article XXIII of the FL regulates who qualifies to vote in elections and the conditions under which they do so. The Constitutional Court observed that the provisions under dispute defined a further condition: voter registration. Early voter registration was found to be unconstitutional because of the existence in Hungary of the official domicile register. The State is under a duty to keep the official domicile register at its disposal up-to-date and to apply it for election purposes. There are no legitimate grounds for introducing registration under such circumstances; it curtails voting rights to an unjustifiable degree, as the requirement for voters to register prior to going to the polls applies to every voter. It also limits voter participation.
However, the Court noted certain instances where registration was justified, namely cases of Hungarian voters residing beyond the borders, members of national minorities living in Hungary and wishing to vote on the national minority list, and those needing assistance to take part in the elections. However, the Court ruled that it would be a disproportionate limitation of the right to vote, if those whose right to vote without previous registration could not be ensured could only register at their permanent domicile and not their usual residence.
In this regard, it found that excluding those living in Hungary without an address (i.e. homeless persons) from the possibility of personal registration was discriminatory.
The second part of the decision dealt with the electoral campaign provisions. Under Section 151 of the Act, all parties could advertise only within highly restricted time limits (600 minutes for national elections and 300 minutes for European parliamentary elections) and were only allowed to use the public TV and radio stations during political campaigns. They were also prevented from attaching «any opinion or evaluative explanation» to the advertisements. Public radio and television stations could not charge political parties for their services. The provision set further limits on advertisement, explicitly forbidding advertising on commercial radio and television stations, and on Internet websites. Section 152.5 of the Act forbade the publication of any political advertisement in movie theatres. Section 154 of the Act outlawed the publication of opinion polls in the last six days before the election.
The Constitutional Court found all these restrictions on campaigning unconstitutional, since they severely restricted the freedom of expression and the media. The provisions effectively restricted political advertising to the publicly run media, a disproportionate restriction on the universal right to speak freely on public matters (not just on the rights of the parties) and the right to free press (including editing) of the commercial media outlets. In addition, the Court found the ban on movies screening political advertisement during the campaign to be an unnecessary limitation. The ban on the publication of any election-related opinion polls in the six days prior to election day was a disproportionate limitation of free expression.
III. Justice Péter Kovács attached a concurring opinion, Justices István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Béla Pokol and Mária Szívós attached a dissenting opinion to the decision.