28 October 2011
The Eötvös Károly Public Policy Institute, the Hungarian Helsinki Committee and the Hungarian Civil Liberties Union analysed the draft of the new Constitutional Court Act, to be adopted under the new Hungarian Constitution. The three NGOs found that under the proposed new rules, the Constitutional Court would only be able to ensure respect for constitutional provisions to a limited extent. Read More
The main conclusions of the NGO analysis are:
A parliamentary committee submitted the bill to parliament, instead of the government. This procedure had breached the Fundamental Law, which provides that the government should submit all cardinal laws to parliament. The procedural error also meant that no professional or social debate could take place about the bill.
The bill empowers the parliamentary majority to nominate members of the Constitutional Court (CC) on its own. This guarantees neither political consensus in support of the nominee nor the justices’ professional qualifications. It also means that candidates with conspicuous political commitments may still be elected in the future.
In breach of the Fundamental Law, the bill would provide that, should a new member of the CC not be elected by the time the term of office of another justice ends, the former justice shall remain in office. This rule allows for „infinite membership” in the Court.
The bill gives a detailed set of rules concerning the benefits of the CC chief justice, including the use of mobile phones and two cars or the chief justice’s and his/her family members’ right to use a holiday resort. In contrast, when it comes to deadlines and length of procedures before the CC, the bill only mentions one word: they need to be reasonable.
In the future, citizens shall be entitled to turn to the CC only by way of a constitutional complaint. In order to ensure that the constitutional complaint guarantees effective protection of individual fundamental rights under equal conditions, the obstacles to their petitions (e.g. mandatory legal representation or the half-million forint (cc. 1700 EUR) fine imposed for the „abuse of right to submit a petition”, against which there is no remedy) need to be withdrawn.
In case the bill is adopted by parliament, almost all of the on-going procedures (1600 in all) at the CC will be automatically terminated. As a result, unconstitutional legal norms will remain in effect. From 1 January 2012, petitions that have been previously submitted by petitioners who by that time will have lost standing to submit actio popularis petitions, may be re-submitted as individual constitutional complaints. Unfortunately, this will require going through a lengthy legal procedure and suffering violations of fundamental rights.
The Hungarian version of the analysis is available here.
The analysis of the adopted Constitutional Court Act is available in English here. The analysis was sent by the authors also to the Venice Commission of the Council of Europe.