HUN
 
HUNGARY
Constitutional Court
 
I.   Introduction
1. The institution of a Constitutional Court was first introduced to the Constitution in 1989. The detailed provisions on the Court were enacted in October 1989 by Act XXXII of 1989 on the Constitutional Court, and soon afterwards the first five members of the Court were elected by Parliament. The Constitutional Court commenced its functions on the 1 January 1990. The 2010 constitutional amendments and the Fundamental Law entered into force on 1 January 2012 have altered the position of the Constitutional Court in the Hungarian legal system. The constitutional developments affected the composition of the Court, the nomination and the election of the Justices as well, as the functioning of the Court.
2. The Constitutional Court is an independent Court that is not part of the hierarchy of the ordinary courts.
II.   Basic texts
-   Articles 24 and 37 of the Fundamental Law;
-   Articles 19, 22 and 29 of the Transitory Provisions to the Fundamental Law;
-   Act CLI of 2011 on the Constitutional Court.
III.   Composition, procedure and organisation
1. Composition
According to Article 24.4 of the Fundamental Law the Constitutional Court is a body composed of fifteen members. Every member and the President of the Constitutional Court are elected for twelve years by Parliament. Hungarian citizens with a law over 45 years old and are theoretical lawyers of outstanding knowledge or have at least twenty years of professional work experience in the field of law may be elected as Members of the Constitutional Court. Members may not be re-elected. An ad hoc nominations committee of Parliament, made up of at least nine and at most fifteen members nominating Constitutional Court justices, reflects the number of Members of Parliament in the parliamentary groups of parties. The candidates are heard by the Parliament’s standing committee dealing with constitutional matters. The members of the Constitutional Court are elected by the votes of two thirds of all Members of Parliament. Parliament elects new members of the Constitutional Court within 90 days prior to the expiry of the predecessor’s term of office. If Parliament fails to elect a new member by this time limit, the mandate of the incumbent Member of the Constitutional Court extends until the entry into office of their successor.
The members of the Court take an oath before Parliament before taking office. Members of the Constitutional Court shall not be members of a political party and shall not engage in any political activity.
No person who, in the course of four years preceding the election, has been a member of Government or a leading official in any political party or who has held a leading state office shall be eligible to become a member of the Constitutional Court. The mandate of the member of the Constitutional Court is incompatible with any other position or mandate in state or local government administration, in society, or with any political or economic position, except for positions directly related to scientific activity or work in higher education, providing that such provisions do not interfere with their work as Members of the Constitutional Court. The members shall not pursue any gainful occupation, with the exception of scientific, educational, artistic, proofreading, editorial and intellectual activities falling under intellectual property rights protection.
A member of the Constitutional Court enjoys immunity in many aspects identical to that of Members of Parliament. Without the consent of the plenary Constitutional Court, criminal proceedings or contravention proceedings may not be instituted or continued and coercive measures of criminal proceedings may not be applied against a member of the Constitutional Court. Only the plenary Constitutional Court has the right to suspend the immunity of a member. No member of the Constitutional Court shall be answerable for the activities carried out or statements of fact or opinion made while exercising the competences of the Constitutional Court.
A member of the Constitutional Court shall, if there emerges any cause of incompatibility, put an end thereto. Failure to do so shall result in his or her membership being declared discontinued by the Plenary Court.
The mandate may be discontinued by discharge if the member of the Constitutional Court, for a reason not imputable to him or her, becomes unable to perform the duties deriving from the mandate.
The mandate may be discontinued by exclusion if the member of the Constitutional Court, for a reason imputable to him or her, does not meet his or her duties, or becomes unworthy of the office, and therefore, may be excluded by the Plenary Court. The member shall be excluded if he or she intentionally commits a publicly prosecuted criminal offence, has not participated in the work of the Constitutional Court for one year for reasons imputable to him or her, or has intentionally failed to meet his or her obligation to make a declaration of assets, or intentionally made a false declaration on important information.
2. Organisation
Detailed rules on the organisation and proceedings of the Constitutional Court should be defined by its Rules of Procedure and the Organisational and Operational Regulations that are to be adopted by the Plenary Court.
At present all judges have a staff of their own consisting of three legal advisers. The administrative and preparatory functions are carried out by the office of the Secretary-General of the Court (the Secretary-General is not a member of the Court, but holds an administrative position).
The budget of the Court is defined by Parliament on the proposal of the Court.
IV.   Jurisdiction
1. Competences
The jurisdiction of the Hungarian Constitutional Court includes:
a. Preliminary norm control of:
-   enacted but yet not promulgated statutes (upon the request of Parliament or the President of the Republic);
-   certain provisions of international treaties (upon the request of the President of the Republic or the Government).
b. Abstract posterior norm control of:
-   legislative acts and sub-legislative legal norms, such as ministerial decrees (upon the request of the Government, one fourth of all Members of Parliament or of the Commissioner for Fundamental Rights).
c. Judicial initiative for norm control in concrete cases
Upon noting the unconstitutionality of a legal regulation applicable in the course of the adjudication of a concrete case in progress, the judge hearing that case shall suspend the judicial proceedings and submit a petition initiating the proceedings of the Constitutional Court.
d. Constitutional complaint
-   Normative constitutional complaint
1. A person affected by a concrete case may lodge a constitutional complaint for the violation of their rights guaranteed by the Fundamental Law if the injury is consequential to the application of the unconstitutional legal provision and if the possible legal remedies have already been exhausted or no possibility for legal remedy is available.
2. The proceedings may also be initiated by exception when such legal provisions become effective without a judicial decision and there is no legal remedy or the complainant has already exhausted the possibilities for remedy (exceptional complaint).
The Prosecutor General can also challenge the legal regulation applied in concrete cases tried with the participation of the prosecutor, if the person concerned is unable to defend his or her rights personally or if the violation of rights affects a larger group of people.
-   Constitutional complaint against judicial decision
Persons affected by judicial decisions contrary to the Fundamental Law, may submit such a complaint if the decision made regarding the merits of the case, or other decision terminating the judicial proceedings violates fundamental rights and the possibilities for legal remedy, have been exhausted or no possibility for legal remedy is available.
e. Examination of conflicts with international treaties
The Court examines legal regulations on request (one quarter of Members of Parliament, the Government, the President of the Curia, the Prosecutor General, the Commissioner for Fundamental Rights or judges) or ex officio in the course of any of its proceedings.
f. Constitutional appeal related to popular referenda
Anyone can submit a petition for a review of parliamentary resolutions ordering a referendum or dismissing the ordering of a referendum to be obligatorily ordered.
g. Opinion on dissolution of a local representative body
The Government can request the Court to express its opinion on whether the operation of representative bodies of local governments and nationality self-governments, is contrary to the Fundamental Law.
h. Opinion concerning churches operating contrary to the Fundamental Law
The Government can request the Court to express its opinion on whether the operation of an acknowledged Church, based on the Act on Churches, is contrary to the Fundamental Law.
i. Impeachment of the President of the Republic
The Court has impeachment jurisdiction over the President of the Republic for wilful violation of the Fundamental Law or other statute in connection with the exercise of the President’s official functions or intentionally committing a criminal offence.
j. Conflict of competences
The Court can resolve the conflict of competence arising between state organs or between a state organ and local government organs.
k. Examination of sub-legislative legal norms and normative decisions
A posteriori norm control and in constitutional complaint proceedings, the Court may examine the conformity of local government decrees if the purpose of the review is the determination of conformity with the Fundamental Law exclusively.
In the course of norm control, in concrete cases on judicial initiative, in the course of examinations of conformity with international treaties and in constitutional complaint proceedings, the Court can review normative decisions and orders and decisions on the uniform application of the law.
l. Interpretation of the Fundamental Law (advisory opinion)
On the petition of Parliament or its standing committee, the President of the Republic or the Government, the Court provides an interpretation of the provisions of the Fundamental Law regarding a certain constitutional issue, provided that the interpretation can be directly deduced from the Fundamental Law.
2. Procedure
The Constitutional Court proceeds by plenary session or by panels composed of five members or the Court makes its decisions acting as a single judge. The panels proceed in all cases that do not come under the plenary session’s jurisdiction. The Court decides in plenary session in preliminary norm control proceedings, in the impeachment proceeding and when it provides an interpretation of the Fundamental Law. The Court also decides in plenary session on the annulment of an Act that is contrary to the Fundamental Law or to an international treaty and on the annulment of an Act in a case examined, on the merits, by the panel.
The Court decides on the merit of the petitions on the basis of the documents at its disposal. The Court may order oral hearing. In such cases public hearing shall be held on the basis of the decision of the presiding judge of panel or in case of plenary session proceedings of the President, at the request of the petitioner or the adverse party.
V.   Nature and effects of decisions
1. The decision of the Constitutional Court is final and cannot be appealed. If the Constitutional Court finds a legal provision unconstitutional, then the Court annuls it wholly or partly. However, under Article 37.4 of the Fundamental Law, as long as the level of state debt exceeds half of the National Domestic Product, the Court  within its competence concerning norm control and constitutional complaint  may examine and annul the Acts related to the state budget, central taxes, stamp duties and contribution’s, custom duties and central requirements related to local taxes, only if the petition refers exclusively to the right to life and dignity, the protection of personal data, the freedom of thought, conscience and religion or the rights connected to the Hungarian citizenship. The Court may annul without restriction, the above Acts if the procedural requirements laid down in the Fundamental Law, for the making and promulgating of such Acts, have not been observed.
In addition, Article 27 of the Transitory Provisions to the Fundamental Law prescribes that Article 37.4 should remain in force for Acts that were promulgated when the state debt to the National Domestic Product ratio exceeded 50% even if the ratio no longer exceeds 50%.
If the Court declares that a judicial decision is contrary to the Fundamental Law, it annuls the decision and it may also annul judicial decisions or the decisions of other authorities which were reviewed by the given decision.
The Court can exceptionally call upon the court to suspend the execution of the contested decision, if it is justified with regard to the expected length of the Constitutional Court proceedings or to the expected decision, in order to avoid serious and irreparable damage or disadvantage or for any other important reason, if the court did not suspend the execution of the decision. The Court may also suspend the entry into force of a legal regulation, provided that the avoidance of serious and irreparable damage or disadvantage or the protection of the Fundamental Law or of legal certainty, necessitates immediate measures.
2. The rulings of the Court generally have erga omnes effect. Decisions on conflict of competences naturally have primarily inter partes effect. All the Constitutional Court’s decisions exert a binding effect on all organs of the State.
3. The most important decisions of the Court are published in the Magyar Közlöny (Official Gazette). All the decisions of the Court are published in the monthly Gazette edited by the Court (Alkotmánybírósági Határozatok). The Court also publishes a volume every year containing all the decisions of the respective year.