HUN-2018-3-005
a)  Hungary / b)  Constitutional Court / c)  Plenary / d)  14-11-2018 / e)  21/2018. (XI. 14.) AB / f)  On declaring an omission on the part of the law-maker stemming from its international obligations for failure to adopt a regulation that allows for appraisal of actual changes in the physical conditions of- and the amount of pension granted to a person with a reduced capacity to work before 1 January 2012 when his or her amount of allowance falls for re-consideration; on declaring a constitutional requirement stemming from Article Q.2 of the Constitution; the wording «unless the betterment of the conditions» of Section 33/A.1.a of Act no. CXCI of 2011 shall only be applied when the conditions of the person with a reduced capacity to work do not simply meet the requirements of the law but have actually improved; on rejecting a judicial initiative claiming that Section 12.1.a of Act no. CXCI of 2011 violated Article 1 Protocol 1 ECHR / g)  Magyar Közlöny (Official Gazette), 2018/176 / h) CODICES (Hungarian).
 
Keywords of the systematic thesaurus:
 
 
Sources - Categories - Written rules - International instruments.
Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
Sources - Hierarchy - Hierarchy as between national and non-national sources - European Convention on Human Rights and non-constitutional domestic legal instruments.
Fundamental Rights - Civil and political rights - Right to property - Other limitations.
Fundamental Rights - Economic, social and cultural rights - Right to unemployment benefits.
 
Keywords of the alphabetical index:
 
Disabled person, social assistance, entitlement.
 
Headnotes:
 
The lack of a regulation allowing for the appraisal of the actual condition of a person with a reduced ability to work violates Hungary’s international obligations.
 
Summary:
 
I. A chamber of the Kúria, the applicant in this matter, suspended its proceedings in accordance with Section 32.2 of the Act no. CLI of 2011 on the Constitutional Court (hereinafter, «ACC») and submitted a petition to the Constitutional Court, requesting the repeal of Section 12.1.a of Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Abilities and on Modification of Other Acts (hereinafter, the «Act») which, under Section 33/A.1.a of the Act, it should have applied, on the basis that it violated Article 1 Protocol 1 ECHR; ratified by Act no. XXXI of 1993. The applicant chamber also asked that the regulation be declared inapplicable to the proceedings it had suspended.
 
The claimant had been receiving a disability pension until 31 December 2011. In light of the legal changes that came into force on 1 January 2012, the claimant was granted a disability allowance instead of the pension. The competent administrative authority (the respondent in this matter) reduced the amount of allowance for the claimant with effect from February 2016, on the basis of Section 33/A.1.a, 33/A.2.c, in conjunction with Section 12.1.a. It stated in its decision that under the law in force, the claimant should be considered as having a reduced capacity of work of 55 % instead of the 59 % that had been appraised before. The claimant lodged a petition against the respondent authority at the Nyíregyháza Administrative and Labour Court. The Court overturned the respondent’s decision, pointing out that no authority had decided on the changes in the conditions of the claimant and so the grounds for the reduction in the allowance were unclear. The simple fact that there had been a change in the law regarding methods of appraising the condition of lack of capacity to work should not be considered as sufficient grounds.
 
The respondent turned to the Kúria for recourse against this decision. At the same time, the claimant contended that the disability pension that had been granted before the changes to the law fell, at least partly, under the protection of the right to property. In response, the chamber of the Kúria argued that under , courts must interpret the national law in line with Hungary’s international obligations and when they apply the European Convention on Human Rights, they must respect the case-law of the European Court of Human Rights. The European Court of Human Rights had delivered several judgments and found violation of Article 1 Protocol 1 ECHR on the same factual basis as had been established in the current case (Nagy Béláné v. Hungary, no. 53080/13; Baczúr v. Hungary, no. 8263/15 and Lengyel v. Hungary, no. 8271/15). The problem of the applicability of the challenged regulation could, in the applicant’s view, only be resolved by referring the case to the Constitutional Court.
 
II. The Constitutional Court called upon the Minister of Human Capacities, the Minister of Justice, the Commissioner for Fundamental Rights and the Mozgáskorlátozottak Egyesületeinek Országos Szövetsége (an NGO, dedicated to advocating the interests of disabled people) to present their opinions on the case.
 
The Constitutional Court ex officio examined other Sections of the Act in line with Article 24.4 of the Constitution and Sections 32.1, 46.1 and 46.3 of the ACC.
 
It began by stating that when proceedings were based on Article 32.2 of the ACC, it applied and interpreted the Convention rather than simply reflecting the judgments of the European Court of Human Rights. The Constitutional Court will proclaim a national law as being out of line with Hungary’s international obligations when there is no other possible interpretation of it in light of the international obligation concerned
 
As a rule, pensions fell under the protection of the right to property enshrined in Article 1 Protocol 1 ECHR, as legitimate expectations, when they had been based - at least partly - on some taxation obligation of the person concerned. However, there was no obligation stemming from the Convention to maintain a social security system. The Constitutional Court interpreted the Convention not on its own but in accordance with Article Q.3 of the Constriction, in light of Hungary’s other international obligations such as the Convention on the Rights of Persons with Disabilities (ratified by Act no. XCII of 2007) and the International Covenant on Economic, Social and Cultural Rights (ratified by Statutory Rule no. 9 of 1976). These international treaties supported the interpretation of Article 1 Protocol 1 ECHR elaborated above.
 
The Constitutional Court also examined the changes the Act had made, with effect from 1 January 2012, to the system of providing benefits and allowances granted to disabled, disadvantaged people and those with a reduced capacity to work. The new system no longer granted pensions to those concerned. Instead, it provided for allowances, which would be revised and calculated on an individual basis, taking into account the condition of the person concerned which stopped him or her from working. The new system also brought in changes to the methods of appraisal of the conditions of those concerned and the categories of the level of disabilities. This meant that some people fell into new categories and would receive different amounts of allowances. Those who had reached retirement age before the legal changes would receive retirement pensions but in other cases the law allowed for disability allowances to be calculated on the basis of the condition of the person concerned. The amount could either be increased or reduced although under the new system, the allowance should remain the same in the absence of an improvement in the condition of the person concerned.
 
The Constitutional Court found that no regulation provided a definition on «betterment of the conditions». It therefore ex officio declared a constitutional requirement stemming from ; the wording «unless the betterment of the conditions» of Section 33/A.1.a of Act no. CXCI of 2011 should only be applied when the conditions of the person with a reduced capacity to work did not just meet the requirements of the law but when they had actually improved This was the only interpretation of the law which would meet the requirements of Article 1 Protocol 1 ECHR and the case-law of the European Court of Human Rights.
 
The Constitutional Court then reviewed the challenged regulation and found that it only contained a rule regarding the calculation of the amount of the allowances and benefits. It concluded that there was no right, stemming either from the Convention or from other international treaties that had been ratified by Hungary, to a precise amount of allowance or benefit. It therefore rejected the claim of the chamber of the Kúria since the challenged regulation did not, per se, violate Article 1 Protocol 1 ECHR.
 
The Constitutional Court then ex officio declared that on the basis of Hungary’s international obligations, more precisely from Article 1 Protocol 1 ECHR, the alterations to the social security system could lead to a situation in which those with a reduced capacity to work might potentially shoulder a greater burden. A greater burden could be claimed when a minimal improvement in the person’s condition - without other significant circumstances - would result in a disproportionate reduction in their allowance that did not reflect their actual condition. In conclusion, the Constitutional Court found an omission on the part of the legislature stemming from and from Hungary’s international obligations as it had failed to adopt a regulation which allowed for appraisal of actual changes to the physical conditions of those concerned and the amount of benefits they had been receiving prior to 1 January 2012.
 
III. Justice Ágnes Czine and Justice István Stumpf attached a concurring reasoning, while Justice Egon Dienes-Oehm, Justice Imre Juhász, Justice Béla Pokol, Justice László Salamon, Justice Mária Szívós and Justice András Varga Zs. attached a dissenting opinion to the Decision.
 
Cross-references:
 
European Court of Human Rights:
 
- Nagy Béláné v. Hungary, no. 53080/13, 13.12.2016, Reports of Judgments and Decisions 2016;
 
- Baczúr v. Hungary, no. 8263/15, 07.03.2017;
 
- Lengyel v. Hungary, no. 8271/15, 18.07.2017.
 
Languages:
 
Hungarian.