The Facebook Oversight Board: Some thoughts on transparency

Since it published its first six decisions this January, the Oversight Board established by Facebook has begun to attract (modest) scholarly attention, boosted by the publication of its decision in the case of Donald Trump’s ‘deplatforming’ last week (Decision 2021-001-FB-FBR of May 5, 2021). This court-like body uses the rhetoric of constitutional justice, but it is indeed a private organ, which raises several interesting questions. Can we draw an analogy between Facebook’s Community Standards (coupled with the Oversight Board’s foundational governing document, the Charter) and a constitution? Can we draw an analogy between the Oversight Board and a constitutional court specialized on freedom of expression? And if we can, how far these analogies may go? It had been envisioned as ‘almost like a Supreme Court’ by Mark Zuckerberg himself back in 2018 and consequently often referred to as the ‘Facebook Supreme Court’ in the media. Scholars have described it as a quasi-court. The Board, instead, defines itself as a ‘non-judicial grievance mechanism’ (for the first time in Decision 2020-006-FB-FBR, Section 8.3, and then again in the Trump case, see Sec. 3).
The Board’s motto, which appears in the title of its website and in the header of its decisions, is ‘Independent judgment. Transparency. Legitimacy’. The Charter solemnly proclaims that ‘the board will operate transparently, and its reasoning will be explained clearly to the public’. At the same time, the Bylaws (the Board’s secondary governing document that fleshes out the provisions of the Charter) provides that deliberation is to ‘be held privately to protect the information the board is reviewing and the security of the panel members’ (Art. 1, § 3.1.6.). Nothing surprising, if we accept the analogy with courts. Less conventional, instead, is the provision that makes the composition of the adjudicating five-member panels confidential (Charter, Art. 3, Sec. 2). Although the membership of the entire Oversight Board is public, the single members (never called ‘judges’ in any of the foundational documents) remain anonymous when deciding cases. The Charter actually specifies the reason behind this choice in the very same provision: ‘to ensure the safety and independent judgment of panel members’ (repeated in the Bylaws, Art. 1, § 3.1.3.). This might be an understandable choice from a civil law perspective, as in civil law countries we are used to judges who remain in the shadows and judicial decisions are delivered in the name of the court (or, often, of the state). It is, however, a more questionable choice from a common law perspective, which is the perspective of lawyers educated in the United States, the home country of Facebook. All the more interesting is that the US-based Stanford Law and Policy Lab recommended exactly this solution ‘to protect board member deliberation’, but without elaborating further on this matter (see pp. 5 and 36 of their Recommendations for the Facebook Content Review Board issued in 2019). One may wonder whether the choice of anonymous decisions confirms the non-judicial nature of the Oversight Board or rather represents a preference for a civil law approach to adjudication.
The secret composition of the panels may be seen as problematic for transparency, even though it is mitigated by the fact that four of the five members are assigned randomly by an automated system (Bylaws, Art. 1, § 3.1.3.). The fifth member shall come from the region where the case arose (Charter, Art. 3, Sec. 2), but even this member is assigned randomly if there are more members from the given region. In relation to this it can be mentioned as, to put it naively, a curiosity that notwithstanding the declared intent of ensuring diversity of composition (Charter, Art. 1), one-fourth of the members currently sitting on the Oversight Board (five of 20) come from the United States. Even assuming that the automated system of assignment ensures regional diversity on the panels, it is mathematically very likely that every panel will include a member that comes from the United States. However, we cannot know this for sure, given the confidentiality of the panels’ composition, and this compromises the credibility of the Board and the seriousness of its strive for diversity.
Still related to the transparency of decision-making, another unique solution adopted by Facebook was to allow the Board to disclose dissent but without breaking the adjudicating panel’s anonymity. From a comparative perspective, anonymous judicial dissent is not completely new but it is definitely exceptional. The Greek solution deserves special mention. Interestingly, anonymity of dissent in Greek courts is coupled with another unique rule, which makes disclosure of dissent compulsory (a rule enshrined in Art. 93(3) of the Greek Constitution). No similar imposition exists, however, for the members of the Oversight Board. While the rationale behind the anonymity rule is to avoid putting the individual members in the spotlight, compulsory disclosure of dissent certainly makes this reason more pressing.
As the Oversight Board has only published ten decisions so far, we cannot talk about consolidated practice, but these ten cases allow us to make some observations and to identify questions to think further. Just as it is done in Greece, the Oversight Board has made minority opinions an integral part of the reasoning instead of publishing them separately. This means that the minority opinion is (presumably) not authored by the minority itself, but it is phrased by the opinion-writer and becomes part of a dialectical reasoning. This practice is not in conformity with the Stanford Lab’s recommendations, which called for the possibility of ‘a dissenting or concurring opinion to accompany the final decision’ (see p. 32). It is, however, consistent with the Charter’s dedication to consensus-based decision-making (see Art. 3, Sec. 4). At the same time, four of the ten decisions present minority views. Considering that the panels are composed of five members only, 40% is a high rate. It is also remarkable that among the first six decisions that were published altogether on January 28 only one was non-unanimous. Was it a careful choice of the Oversight Board to publish mostly unanimous decisions at its première? It would not be surprising, knowing the first decades of history of the US Supreme Court and Chief Justice Marshall’s struggle for unanimous decisions. In any case, of the four cases decided later, three present minority views. A very different proportion.
Since the minority’s views are not formulated as a separate opinion but incorporated in a dialectical reasoning, they are not labelled as dissent or concurrence. However, if we look into the content of those minority views, we may see that in the first three of the four non-unanimous cases they may be characterized as dissenting opinions. In these cases, the minority disagreed with the outcome and would have either overturned Facebook’s decision (in the Azerbaijani case) or would have upheld it (in the Indian Muslims’ case and the Dutch ‘Zwarte Piet’ case), to the contrary of the majority. It is never specified whether the minority consisted of one or two members of the five-member panel, but in the Azerbaijani case the reasoning suggests that there might have been two dissenters. In any case, the panels’ decisions are not final but have to be approved by a majority of the entire Board (Charter, Art. 3, Sec. 7.1). Thus, it is all the more interesting to see that non-unanimous opinions also get the approval, even though there is no public information about whether any of the ten cases has been sent back to a new panel for re-review (Bylaws, Art. 1, § 3.1.8.).
The Board’s decision in Trump’s case and the minority opinions there presented are particular in several ways. It is the first case where the minority opinion may be defined as a concurring opinion.  Moreover, the reasoning is remarkably longer than in the previous cases, also due to the presence of four different minority views. These four different views may have been expressed by four different members or they may all come from the same member. We do not know, and there is nothing in the reasoning that would offer a clue about the number of members behind these minority views. The first two concurring views claim that there are additional grounds for the decision, the third one supplements the majority’s proportionality analysis, while the fourth one is related to remedial action. Thus, a minority argument is expressed in relation to four distinct questions. This suggests that there must have been a very lively debate in the panel before reaching a decision.
At last but not least, a substantive conclusion that we may draw from reading the minority opinions is that the proportionality test seems to be the most central and debated issue for the Oversight Board. In all four non-unanimous cases at least part of the minority view concerned the proportionality analysis.
The Oversight Board’s ambitious motto ‘Independent judgment. Transparency. Legitimacy’ poses a great challenge to this newly established body. There is a clear tension between the first two of these values. Indeed, it seems to be the underlying reason for the confidentiality of the panels’ composition that publicity may endanger the independence of the single members, and consequently of the Board as a whole. As regards legitimacy, instead, a recent empirical study found that in cases of higher political salience the formulation of dissenting opinions can be a meaningful way of securing greater support for a court’s policy outputs by suggesting evidence of procedural justice (Bentsen 2019). Therefore, it seems to be a wise solution to allow the disclosure of minority opinions, enhancing the Oversight Board’s legitimacy and public acceptance, but in a way that does not jeopardize the independence of the single members. This is an especially delicate question in relation to a newly established adjudicating body, which still has to build up its reputation.
On a final note, notwithstanding the questionable transparency of its own decision-making process, the Oversight Board contributes to enhance the transparency of Facebook (on this, listen to the Lawfare podcast on the Trump case, in which the participants conclude that the Oversight Board’s decisions fulfill an important ‘information-forcing function’). In its decisions, the Board repeatedly called for a greater transparency of how Facebook makes its content removal decisions. Matthew Schafer, a media law scholar, argued that the Board falls short of the very same principle that it applies to Facebook: access to information. He bases his criticism on the confidentiality of the panels’ composition and on the fact that the Oversight Board does not publish briefing provided by Facebook. But while the latter could be remedied by the Board, confidentiality of the panels’ composition has been imposed on the Board by Facebook through the Charter. Moreover, a balance between independence and transparency is difficult to draw. At the end of day, the question is whether revealing the identity of the members of the panel and of the dissenters is worth the potential negative effect that this could have on the Board’s independence.

La dignità umana delle persone senza fissa dimora. Secondo la Corte costituzionale ungherese non esiste un diritto di rifiutare l’aiuto offerto dallo stato

Con una sentenza emessa all’inizio di giugno, la Corte costituzionale ungherese ha rigettato una serie di ricorsi che riguardavano la costituzionalità di una norma (art. 178/B della Legge n. II del 2012 sulle contravvenzioni) che punisce con ammonizione, servizio sociale o detenzione chi soggiorna abitualmente in un’area pubblica (Decisione n. 19/2019 (VI. 18.) AB, per ora disponibile solo in lingua ungherese). I cinque ricorsi presentati in via incidentale, riguardanti un totale di otto casi di arresto per la contravvenzione in questione, sono stati uniti e decisi in un unico procedimento. Con una decisione 8 a 6, il giudice delle leggi ungherese ha scelto di offrire un’interpretazione correttiva della norma, stabilendo un c.d. requisito costituzionale (sulla falsariga dei Leitsätzer conosciuti dalla prassi della Corte costituzionale federale tedesca), invece di dichiararla incostituzionale. Secondo tale interpretazione una sanzione può essere legittimamente imposta soltanto nel caso in cui sia assicurato il collocamento della persona bisognosa nel sistema di assistenza.
La decisione ha suscitato scalpore nell’opinione pubblica e lo sdegno di molti studiosi di diritto costituzionale (vedi per esempio i due post pubblicati sul Verfassungsblog da costituzionalisti ungheresi). È stato oggetto di critica soprattutto un passaggio in particolare nella motivazione. La Corte costituzionale ungherese afferma che, “secondo il sistema di valori della Legge Fondamentale, nessuno ha il diritto ad essere nullatenente o senza fissa dimora, questo stato non fa parte del diritto alla dignità umana” (par. 102). Per conoscere il quadro completo del ragionamento della Corte, la seconda parte della frase però è altrettanto importante: “al contrario, tale stato deriva dalle disfunzioni interconnesse della convivenza sociale e della vita individuale, che una società fondata sulla fedeltà, sulla fede e sull’amore deve gestire e, possibilmente, eliminare sulla base del rispetto per tali valori”. I giudici costituzionali affermano inoltre che, secondo la loro lettura, è l’emarginazione sociale a violare il diritto alla dignità umana, e lo stato violerebbe tale diritto se lasciasse soli gli individui emarginati (par. 97 e 102).
In breve, lo stato ungherese ha l’obbligo costituzionale di creare e mantenere un sistema di assistenza alle persone senza fissa dimora (sancito dall’art. XXII, secondo comma, della Legge Fondamentale), ma, secondo il giudice delle leggi ungherese, l’adempimento a tale obbligo è possibile soltanto se le persone in questione collaborano con lo stato (par. 61 e 98). La legge sulle contravvenzioni prevede che una persona che abitualmente soggiorna in un’area pubblica debba essere prima avvertita dalle forze dell’ordine e invitata a recarsi a una struttura di accoglienza. Dopo tre avvertimenti fatti nell’arco di 90 giorni, le forze dell’ordine hanno il dovere di prendere la persona in custodia e iniziare un procedimento di contravvenzione (art. 178/B, quarto e settimo comma, della legge impugnata). Secondo la Corte costituzionale, tale disciplina rispetta i principi di gradualità e proporzionalità (par. 68).
Non è la prima volta che la Corte costituzionale ungherese si occupa di diritti delle persone senza fissa dimora e della (in)costituzionalità della penalizzazione della loro condizione. Sette anni fa ha già dichiarato incostituzionale una disciplina simile (Decisione n. 38/2012 (XI. 14.) AB). In quell’occasione la Corte ha stabilito che „è incompatibile con la protezione della dignità umana punire le persone che hanno perso la propria abitazione per un motivo a loro estraneo e che perciò vivono in un’area pubblica, ma non violano i diritti altrui, non recano danno e non commettono altre irregolarità” (par. 53). Non si tratta però di un overruling, in quanto nel 2018 sono state modificate sia la Legge Fondamentale (LF) che la disciplina legislativa, proprio in risposta alla decisione poc’anzi presentata. Con il Settimo Emendamento alla LF, il legislatore (che nell’attuale costellazione politica ha anche il potere costituente) ha elevato la norma incostituzionale a rango di disposizione costituzionale, togliendola dalla giurisdizione della Corte costituzionale. Oggi è l’art. XXII, terzo comma, della LF a stabilire che “è vietato soggiornare abitualmente in un’area pubblica”. Non è la prima volta che il legislatore ungherese sceglie una soluzione assai problematica dal punto di vista del principio dello stato di diritto in risposta a una dichiarazione di incostituzionalità.
Anche ammesso che la Corte costituzionale ungherese non abbia avuto un compito facile, considerando che oggi è la stessa LF a stabilire il divieto, la motivazione è piuttosto debole ed incompleta in più punti. Innanzitutto, il divieto costituzionale è generico e non determina alcun obbligo per lo stato di creare un reato o una contravvenzione. La Corte avrebbe potuto dire che assicurare l’uso conforme all’interesse pubblico delle aree pubbliche non è un interesse legittimo che giustifichi la penalizzazione del soggiorno abituale in un’area pubblica (questa è anche l’opinione del(la) giudice Czine, dissenziente, par. 131-34). Quattro giudici dissenzienti erano del parere che pur in presenza di un divieto espresso nella LF, la legge violi altri principi costituzionali. Il giudice Schanda (opinione dissenziente condivisa anche dai giudici Hörcherné e Szalay) ritiene che sebbene le persone senza fissa dimora abbiano l’obbligo di collaborazione, è da tenere in conto che una parte di loro „non è (più) in grado, o soltanto limitatamente, di collaborare”, e la Corte costituzionale „non può ignorare la realtà sociale” (par. 166). Per questi tre giudici porre le persone senza fissa dimora sotto processo per contravvenzione viola la loro dignità umana (par. 167). Anche il giudice Stumpf (dissenziente) è critico nei confronti del ragionamento della maggioranza circa il diritto alla dignità umana, definendolo contraddittorio, in quanto prima afferma che il diritto all’autodeterminazione e la libertà d’azione non si estendono all’infrazione di un divieto costituzionale, poi però esamina la necessità e la proporzionalità di una limitazione di tali diritti fondamentali (par. 175).
Oltre alla contraddizione lamentata dal giudice Stumpf, ci sono diversi argomenti nella motivazione della maggioranza non pienamente sviluppati. Per quanto riguarda la filosofia sottostante la nuova LF, in vigore dal 2012, è vero che essa si basa su un impianto poco liberale, nel quale l’uomo è visto „non come individuo isolato, ma piuttosto come un membro responsabile della società” (par. 60), „la libertà del quale comporta responsabilità” (par. 101), ma non è chiaro per quale motivo „l’unica via di uscita” dalla povertà e dallo stato di senza fissa dimora sia „avvalersi dell’aiuto offerto dallo stato”, come afferma la sentenza (par. 102). Rimangono, inoltre, senza risposta diverse critiche già espresse dalla Corte costituzionale nel 2012 nei confronti della disciplina legislativa precedente ma sempre valide. Per esempio, la nuova sentenza semplicemente omette di prendere in considerazione che il risultato della persecuzione del „soggiorno abituale in area pubblica” spinge molte persone senza fissa dimora che - il più spesso per via di esperienze negative passate - non hanno intenzione di recarsi a una struttura di accoglienza a territori periferici, non ufficialmente qualificati come area pubblica (come dimostrato con dati da una relazione presentata dalla Fondazione „Menhely”). La Corte del 2012 affermò esplicitamente che la norma impugnata non mirava a proteggere l’ordine pubblico, ma a rimuovere le persone senza fissa dimora dalle aree pubbliche e sollecitarle ad avvalersi dei servizi sociali (par. 53 della Decisione 38/2012).
Insieme alla disposizione costituzionale, anche la disciplina nella legge sulle contravvenzioni è stata riformulata nel 2018 con lo scopo di prevenire critiche simili a quelle già esposte nella sentenza del 2012. Ad esempio, il nuovo art. 178/B contiene una definizione di soggiorno abituale, la mancanza della quale è stata lamentata (vedi par. 58 della Decisione 38/2012). Il legislatore sembra aver tratto ispirazione anche dall’opinione dissenziente del giudice Dienes-Oehm, il quale raccomandò di porre l’accento sulla rimozione (forzata, se necessario) della persona dall’area pubblica come conseguenza legale della contravvenzione, e di applicare un’ulteriore sanzione solo in caso di particolare gravità della condotta e recidività (par. 108).
E meritano attenzione le opinioni separate di entrambe le sentenze, le quali rispecchiano chiaramente i cambiamenti avvenuti nella composizione della Corte nell’ultimo decennio. È forse noto che la nuova LF ha reso possibile per il governo eleggere i giudici costituzionali unilateralmente se in possesso di una maggioranza qualificata nel Parlamento (vedi un mio post precedente su questo blog). Il governo attualmente in carica è stato in possesso dei due terzi dei seggi per la maggior parte del tempo a partire dal 2010. Al momento della decisione del primo caso soltanto sei dei quindici giudici erano di nomina di questo governo, mentre attualmente tutti e quindici lo sono (per cui oggi si è soliti definire la Corte costituzionale ungherese come una packed court). Infatti, quattro di quei sei giudici hanno espresso il loro dissenso nel primo caso, mentre gli stessi quattro hanno fatto parte della maggioranza nel secondo caso. I restanti due giudici invece hanno espresso il loro dissenso nel secondo caso (insieme ad altri quattro non ancora in carica nel 2012), ma non nel primo. Perciò, anche se formalmente non si tratta di un overruling, almeno non secondo la maggioranza della Corte stessa, è chiaro che c’è stato un cambio di orientamento.
Senza soffermarsi sugli ulteriori dettagli del caso, leggendo la decisione qui presentata si può osservare che la giustizia costituzionale ungherese è cambiata radicalmente negli ultimi anni. Il cambiamento del contesto normativo che regola le competenze e la composizione della Corte costituzionale ha provocato una graduale trasformazione della sua giurisprudenza, sia nella sostanza che nello stile. La Corte, diventata famosa negli anni Novanta per il suo approccio attivista, mostra una crescente deferenza al legislatore e chiusura nei confronti delle fonti sovranazionali. Da questo punto di vista la decisione sui diritti delle persone senza fissa dimora è emblematica.
La motivazione asserisce senza lasciar dubbi che il parametro del controllo di costituzionalità è la nuova Legge Fondamentale, „il cui contenuto non può essere giudicato” dalla Corte (par. 53). In realtà, come hanno spiegato due ex giudici costituzionali nel loro amicus curiae, la possibilità di giudicare la legittimità del nuovo art. XXIII, terzo comma, della LF ci sarebbe stata, sia dal punto di vista procedurale che da quello sostanziale. Per il giudice dissenziente Juhász la Corte è andata comunque oltre le proprie competenze, e avrebbe violato il principio di separazione dei poteri stabilendo un requisito costituzionale (l’esenzione dalla pena nel caso in cui non sia assicurato il collocamento in una struttura di assistenza) (par. 162). Sempre sulla linea del self-restraint, la Corte afferma anche che l’efficenza del funzionamento del sistema di assistenza sociale non può essere oggetto di controllo di costituzionalità (par. 63) se non al fine di stabilire un livello minimo di assistenza (par. 108).
Inoltre, nonostante i numerosi riferimenti a trattati internazionali e alla giurisprudenza della Corte di Strasburgo sia nella Decisione 38/2012 che in un amicus curiae presentato da un gruppo di organizzazioni non governative, la Corte omette qualsiasi riferimento a qualsiasi fonte sovranazionale. Dal 2014 non è più membro della Corte neanche Péter Kovács, professore di diritto internazionale, che con le sue opinioni separate arricchiva le sentenze con riferimenti a fonti sovranazionali ed analisi fatte sulla base di esse. Adesso tali analisi non si trovano neanche nelle opinioni separate.
La parte più importante della decisione dal punto di vista dello sviluppo giurisprudenziale rimane senz’altro il ragionamento circa il diritto alla dignità umana delle persone senza fissa dimora. In sintesi, interpretando la (pur inconsistente) motivazione  della maggioranza dei giudici costituzionali attualmente in carica, il diritto all’autodeterminazione e la libertà d’azione, i quali derivano dal diritto alla dignità umana ma non costituiscono il nucleo essenziale di esso, possono essere limitati per salvaguardare l’ordine pubblico, e l’uso delle aree pubbliche secondo la loro destinazione (prevista dalla legge) sarebbe un „valore costituzionalmente protetto” che rende una tale limitazione necessaria. Poiché la disciplina prevede di iniziare il procedimento di contravvenzione soltanto in caso di mancata collaborazione da parte della persona senza fissa dimora, cioè in ultima ratio, la limitazione sarebbe non solo necessaria, ma anche proporzionata (par. 100). Con questa argomentazione la Corte costituzionale ungherese ha dimostrato, e non per la prima volta, che è in sintonia con l’ideologia conservatrice rappresentata dal governo attualmente in carica.

The Agreement on a Unified Patent Court cannot be ratified by Hungary, the Constitutional Court says

In a decision delivered on 26 June (Decision no. 9/2018 [VII. 9.] AB – the official English translation was released on the Court’s website this week), the Hungarian Constitutional Court found that the Agreement on a Unified Patent Court (signed by Hungary in 2013, but not yet ratified) violates the Hungarian Fundamental Law (FL), as it would transfer to the new Unified Patent Court (UPC) the jurisdiction over a group of private law disputes, drawing them off the jurisdiction of national courts, while Art. 25 (2) a) FL provides that private law litigations shall be decided by national courts. The Constitutional Court also found a violation of Art. 24 (2) c) and d) FL, which provide for the possibility of lodging constitutional complaints against judicial decisions with the Constitutional Court, because it would not be possible against the UPC’s decisions.
The UPC has been established in the ambit of enhanced cooperation with the participation of 25 Member States (Croatia, Poland, and Spain did not sign the Agreement). The plan of creating a common European patent system and a common patent court has been on the agenda of the European Union (EU) for many years now, and it had already triggered criticism and litigation. The first draft agreement on the European and Community Patents Courts was declared to be incompatible with EU law by the Court of Justice of EU (CJEU) in 2013 (Opinion no. 1/09 of 8 March 2011) on the ground that it would have given exclusive jurisdiction to an international court which is outside the institutional framework of the EU over the application and interpretation of secondary EU law in the field of patents. Two years later, a new Council Decision authorising enhanced cooperation in this area was challenged by Italy and Spain on several grounds (among others they contested the language regime), but in that occasion the CJEU dismissed their applications (Joined Cases C-274/11 and C-295/11).  Another two years later, Spain tried to challenge the legal instruments creating unitary patent protection once again, but the CJEU rejected all seven pleas (Case C-146/13, for a comment by Aurora Plomer see here). Currently there is a constitutional complaint (lodged by a patent attorney) pending before the German Federal Constitutional Court challenging the UPC agreement claiming, among others, that it would violate Germany’s sovereignty and questioning the independence of the UPC’s judges (read more about it here).
Thus, the Hungarian constitutional challenge does not come as a surprise, especially considering the harsh Euroscepticism expressed by the Hungarian government on several occasions. Indeed, the case before the Constitutional Court originates from an application presented by the Minister of Justice, acting on behalf of the Government. The Minister requested the interpretation of two constitutional provisions. In Hungarian constitutional justice certain public figures may request the interpretation of the provisions of the Fundamental Law in relation to a concrete constitutional issue (art. 38 of the Constitutional Court Act). In this case, the provisions in question were Articles E) (the FL’s EU clause) and Q) (on obligations under international law), while the concrete constitutional issue was the ratification of the UPC Agreement. In particular, the Minister of Justice wondered whether it violates Hungary’s constitutional identity if an international treaty which is not included among the founding treaties of the EU sets up an international court with exclusive jurisdiction over a group of private law disputes and without the possibility of appeal against its decisions before national courts or even the CJEU.
In its reasoning, the Constitutional Court further elaborates on the presumption of maintained sovereignty established in its Decision no. 22/2016 (the same in which it discusses the concept of constitutional identity – see my previous post on this blog commenting on that decision). The presumption of maintained sovereignty means that, by joining the EU, Hungary did not give up its sovereignty but only allowed for the joint exercise of certain powers (para. 60 of Decision no. 22/2016). Now the Court states that the presumption is to be interpreted restrictively: as long as an international treaty stipulated by the EU Member States does not become part of the acquis communautaire, it is to be examined whether Article E) or Q) provides the constitutional legal basis for it. Furthermore, the Constitutional Court distinguishes between an internal and an external point of view on sovereignty. The first one concerns the supreme power within the state, while the second one means the sovereign equality of states in international relations (para. 31).
From the external perspective there is a further distinction to be made, the Court argues. Transfer of sovereignty to the EU is to be treated separately from international law, as EU law has a sui generis nature. At the same time, the form of enhanced cooperation requires special consideration. While EU measures authorising or implementing such cooperation clearly fall within the scope of EU law, i.e. under Art. E) FL, it is less clear whether the international treaties concluded within the framework of enhanced cooperation do, or they remain in the realm of international law. According to the Constitutional Court it is not possible to answer this question in abstract terms, on the basis of the FL only, but the EU’s founding treaties are to be examined. If the Treaties specify the power to establish the UPC, the Agreement is to be considered under Art. E) FL, otherwise it is to be treated as an international treaty. In other words, Hungary is free to enter an international treaty to which only EU member states are parties, and which sets up an institution that applies EU law, but this treaty is to be treated under the EU clause only if its legal basis can be found in the EU Treaties (para. 32 of the decision). The Court also notes that this interpretation is in line with the CJEU’s case-law, in particular with its judgment in Spain v. Parliament and Council (C-146/13) (para. 33-34).
The perceived importance of the decision is shown by the fact that it is the first one officially translated into English since the constitutional identity case of 2016. In other words, these are the only two decisions also published in English in the last two and a half years (the new policy seems to be to publish short press releases in English on the most relevant decisions). Interestingly, though, this time the separate opinions are omitted in the translation. They are mentioned, but not translated, which goes against the Hungarian Constitutional Court’s practice. There are two dissenting opinions and one concurring opinion attached to the decision.
The concurring opinion is authored by Judge Pokol, who argues that the Court should have offered a more complete argumentation. He agrees that transferring the jurisdiction over a group of private law disputes to an institution not mentioned in the EU Treaties, such as the UPC, violates Art. 25 FL, but he would go even further in the reasoning. According to Judge Pokol, the transfer of jurisdiction is unconstitutional not simply because it implies the exclusion of Hungarian courts’ jurisdiction, but mainly because it violates the prohibition on sovereignty-transfer outside the European Union (see para. 56 of the original Hungarian version of the decision). He would have included a statement of principle in the holding of the decision declaring that sovereignty-transfer is not possible in the ambit of Art. Q) FL, i.e. in an international treaty that does not fall within the scope of EU law (para. 57). Judge Pokol leaves no doubt about his views on the nature of EU law. He claims that the founding treaties of the EU are part of international law, and the only feature that makes EU law special is that it is created with the continuous participation of the Hungarian government. This would be the reason for allowing sovereignty-transfer to the EU in certain areas (para. 58).
Judge Dienes-Oehm, on the other hand, disagrees with the majority in all points. He claims that the EU clause (Art. E) (2)) of the FL can be the basis for the ratification of the UPC Agreement (para. 61) and does not find any violation of Art. 25 FL, which according to him does not imply that jurisdiction over private law disputes would not be transferable, as indeed it has been done e.g. for matters subject to international arbitration (para. 63-65). He also emphasizes that Hungary approved the EU measures adopted in the ambit of enhanced cooperation without having raised concerns regarding constitutional self-identity (para. 61 and 71). While Judge Dienes-Oehm shared the opinion that constitutional self-identity poses a limit to the primacy of EU law, in this dissent he argues that the concept should be used sparingly, in the most important issues only (such as immigration policy and the setting up of a European Public Prosecutor’s Office), and consequently throughout the whole decision-making process, so that it can be employed effectively (para. 72).
The other dissenter, Judge Stumpf, contested the inclusion of Art. 24 FL in the holding of the decision as a basis for the Court’s finding that the UPC Agreement cannot be ratified. Art. 24 FL is the one that provides for the possibility of lodging constitutional complaints with the Constitutional Court, that according to the majority would be violated by excluding the constitutional review of the UPC’s judgments. Judge Stumpf argues that Art. 24 FL simply establishes the Constitutional Court’s jurisdiction over constitutional complaints against judicial decision, but it does not require that constitutional complaints shall be available against decisions of international courts as well (para. 77). Moreover, the Minister of Justice did not request the interpretation of Art. 24 FL in its application, so the Court should have exercised self-restraint in answering the petitioner’s question (para. 78). Finally, Judge Stumpf makes the important observation that the UPC Agreement was signed by Hungary, and its entry into force is conditional upon ratification by at least 13 Member States, therefore there is no reason to examine the violation of Hungary’s sovereignty or constitutional self-identity (para. 81).
The Hungarian Constitutional Court’s decision does not put at risk the setting up of a Unified Patent Court but only Hungary’s participation in the common European patent system. The success of the plan is, however, still endangered by the pending German constitutional complaint (in relation to which decision is expected in the second half of this year), because Germany, France and the UK (and at least other 10 Member States) must have ratified the UPC Agreement for it to enter into force. France ratified it already in 2014, while the UK’s ratification was an open question for a long time after the Brexit referendum. It finally arrived in April of this year. Now only Germany’s ratification is awaited, and the Agreement will enter into force, with or without Hungary’s participation.

The Hungarian Constitutional Court enters the dialogue on national constitutional identity

In a long-awaited decision published in December (Decision no. 22/2016 (XII.5.) AB of 30 November 2016, the only one officially translated into English that year), the Hungarian Constitutional Court seems to have settled some of the questions related to the relationship between the EU legal order and Hungary’s constitutional order. In this decision, the Hungarian constitutional judges offer some guidance on two important concepts: state sovereignty and constitutional self-identity.

The Hungarian Constitutional Court was almost unanimous in its conclusions; only one member (Judge Salamon) chose to dissent. Such level of agreement is unsurprising, considering that all ten judges had been appointed by the same parliamentary majority, which had been made possible by a reform of the appointment procedure in 2011. Interestingly, the decision had been delivered the day before four new judges entered into office. The four new judges, unlike the already sitting members, were elected with the support of one of the opposition parties (LMP). However, even if nine of the ten judges share the conclusions, the reasoning of the decision is enriched and/or contested by five concurring opinions, some of which in fact get close to a dissenting opinion.

The case was initiated by the Ombudsman, who requested the interpretation of two constitutional provisions: the ‘collective expulsion’ clause of art. XIV (1) and the ‘joint exercise of competences’ clause of the EU provision contained in art. E (2). The petition was prompted by the EU’s decision to order the transfer of 1294 asylum seekers from Italy and Greece to Hungary (Council Decision (EU) 2015/1601 of 22 September 2015). The Ombusdman asked whether this collective transfer violated the prohibition on the collective expulsion of foreigners provided by art. XIV (1), since the procedure does not provide for ‘the comprehensive examination on the merits of the individual situations of the applicants’ (para. 3). The other questions concerned more abstract issues related to the ‘joint exercise of competences’ clause of art. E (2). These included:

  • Are state bodies and institutions entitled or obliged to implement EU measures which are in conflict with fundamental rights protected by the Fundamental Law? And, in case, which Hungarian institution may declare this violation? (para. 13) The question essentially aims at clarifying if a fundamental rights-reservation review of EU law might be performed.
  • Where art. E (2) requires that ‘Hungary may, to the extent necessary to exercise the rights and fulfil the obligations set out in the founding treaties, exercise some of its competences deriving from the Fundamental Law jointly with other Member States, through the institutions of the European Union’, does that mean that the implementation of an ultra vires act might be restricted? If so, which Hungarian institution may declare that an EU measure was adopted ultra vires? (para. 14) The question essentially aims at clarifying if an ultra vires review of EU law might be performed.
  • Do art. E and XIV authorise or restrict Hungarian institutions and bodies to allow the transfer of a group of foreign persons collectively, without the assessment of their individual and personal situation, without their consent, and without the application of objectively prescribed criteria? (para. 15)

The Constitutional Court unfortunately decided to separate the first question and to examine it in another (future) proceeding (para. 29). It answered only the latter three questions in this decision. Thus, notwithstanding the law requires that a petition for constitutional interpretation shall concern a concrete constitutional issue (art. 38 of the Constitutional Court Act), the petitioner’s most concrete question has been detached from the rest of the petition. Consequently, the Court reasons at a high level of abstraction, and the concepts of state sovereignty and constitutional identity are discussed in very general terms. Moreover, in his concurring opinion, Judge Juhász expresses criticism of the separation of the petitioner’s first question on the ground that it postpones the decision for indefinite time, while the EU Council Decision in question is already applicable (para. 84).

First, as regards the fundamental rights-reservation review (alapjogi fenntartás), the Court acknowledged the point of view of the Court of Justice of the European Union (CJEU), but preferred to follow the lead of other national constitutional courts instead (para. 32-33). It explicitly refers to, and briefly summarises, the landmark cases of other Member States’ constitutional and supreme courts, including Estonia, France, Ireland, Latvia, Poland, Spain, the Czech Republic, the United Kingdom, and Germany (para. 34-44). The Court gives an affirmative answer to the Ombudsman’s question when it states that ‘within its own scope of competences … in exceptional cases and as a resort of ultima ratio, i.e. along with paying respect to the constitutional dialogue between the Member States, it can examine whether exercising competences on the basis of art. E (2) of the Fundamental Law results in the violation of human dignity, the essential content of any other fundamental right or the sovereignty (including the extent of the competences transferred by the State) and the constitutional self-identity of Hungary’ (para. 46).

In its reasoning, the Hungarian Constitutional Court also refers to the decision of the European Court of Human Rights in Matthews v. United Kingdom (1999), which established that a Member State’s liability for human rights violation cannot be exempted by making reference to implementing EU law (para. 48). In addition, the Hungarian Court expressly relies on the German Federal Constitutional Court’s Solange jurisprudence when declaring that the level of protection for fundamental rights offered by the European Union is adequate. For this reason, the Court reaches the same conclusion as the German Court, i.e. that fundamental rights review should be performed only as an ultima ratio (para. 49). The reception of the German solution is, however, poorly justified. As also Judge Juhász points out in his concurring opinion, the Court analyse the level of protection offered by EU law on the basis of Hungarian constitutional law. He argues that since the adoption of the Solange II decision in 1986 new directions of examination in time and space have become necessary due to the expansion of the European Union (para. 86). According to Judge Juhász, the level of protection of the EU cannot be defined in an exact way, and it raises several questions that are still to be answered (such as the relationship between the CJEU and the European Court of Human Rights, for example) (para. 87). Similarly, Judge Stumpf criticises the Court for having copied one sentence from a German judgment (para. 66 of the majority judgment which would be a translation from BVerfG, 2 BvE 2/08, of 30 June 2009) without being justified on the basis of the Hungarian Fundamental Law (para. 108 in his concurring opinion – para. 106 in the English version in which the numbering went wrong).

Second, as regards the ultra vires review, the Court imposes two limits on the transfer and joint exercise of competences: Hungary’s sovereignty and constitutional self-identity (para. 54). The review of both would be within the Constitutional Court’s competence (para. 55), which has to examine them with due regard to each other (para. 67). The Court establishes the presumption of maintained sovereignty (fenntartott szuverenitás vélelme), according to which, by joining the EU, Hungary has not surrendered its sovereignty (para. 60). This interpretation is in line with several other European constitutional courts’ jurisprudence. The identity review, on the other hand, would be based on art. 4(2) TEU, which provides that the EU shall respect the Member States’ national identities (para. 62).  In its reasoning, the Court argues that ‘national identity’ (translated as nemzeti identitás in the TEU’s official Hungarian translation) means ‘constitutional self-identity’ (alkotmányos önazonosság) (para. 64), and gives a few examples of values that would belong to this concept, such as fundamental freedoms, separation of powers, republican form of state, respect of autonomies under public law, freedom of religion, lawful exercise of power, parliamentarianism, equality before the law, acknowledging the judicial power (whatever that means), and the protection of national minorities living with us. These would be achievements of Hungary’s historical constitution (para. 65).

The Court is very succinct in its answer to the petitioner’s last question, while that is the only one examined in the present case which is related to the constitutional issue that prompted the petition in more concrete terms. The question was whether the Fundamental law authorises or restricts Hungarian institutions and bodies to allow the transfer of a group of foreign persons collectively, without the assessment of their individual and personal situation, without their consent, and without the application of objectively prescribed criteria. The Court finds that if it is likely that the joint exercise of competence violates human dignity, other fundamental rights, the sovereignty or the constitutional self-identity of Hungary (the latter being based on the historical constitution), it may examine, in the exercise of its competences, the existence of the alleged violation (para. 69).

The Court’s conclusion is downsized by Judge Dienes-Oehm in his concurring opinion. He states that EU law measures cannot be object of (preventive or subsequent) constitutional review or of constitutional complaint, because they do not fall within the notion of ‘legal rules’ (jogszabályok) as defined by art. 24 (2) of the Fundamental Law (para. 79). The Constitutional Court may examine the constitutionality of ultra vires EU measures only when exercising its competence of interpretation of the constitutional provisions. This would also mean, according to Judge Dienes-Oehm, that the Constitutional Court cannot impose legal consequences (para. 82).

Another concurring opinion, the one authored by Judge Varga Zs., examines the concept of ‘historical constitution’ more closely and offers a more exhaustive analysis on this point than the majority decision. He argues that ‘in the case of Hungary national identity is in particular inseparable from constitutional identity, since the constitutional governance of the country has always been one of the core values the nation has insisted on, even at the times when foreign powers occupied the whole country or part of it’. He claims that this legal value has been manifested and can be recognised in historical documents, such as the Golden Bull, the Tripartitum, the Torda Laws, the Pragmatica Sanctio, the laws of April 1848, and the laws of the Austro-Hungarian Compromise of 1867. The values represented by these documents would form Hungary’s constitutional self-identity, which cannot be waived either by way of an international treaty or a constitutional amendment, because ‘legal facts cannot be changed through lawmaking’ (para. 112 in the concurring opinion – para. 110 in the English version).

While this decision may be seen as offering an answer to some questions concerning the relationship between the new Hungarian Fundamental Law and the EU legal order, the issue is far from being settled. There are at least two circumstances that make it uncertain how the Court’s case-law will develop in the future. First, the arrival of four new judges to the Court after this decision might bring about a change in its orientation. Five judges decided to write separately in this case, which shows that the Court already lacks unity on these issues. Second, the high level of abstraction of the Court’s reasoning in this case makes it difficult to foresee how more concrete constitutional problems related to constitutional identity will be solved. The most concrete question raised by the Ombudsman – whether the collective transfer violates the prohibition on the collective expulsion of foreigners –, has been separated from the rest of the petition and is still to be answered.

The decision-making process of European constitutional courts. A comparative perspective

Mathilde Cohen, in her study on supreme and constitutional courts’ organizational cultures, hypothesised that there is a reciprocal influence between a court’s institutional design and the style of its opinions. I share her hypothesis. Thus, before exploring the practice of judicial dissent, I address its institutional and procedural contexts, since these exert a profound influence on this phenomenon. For this purpose the most relevant aspect of the decision-making process is represented by its personal dimension: the role of the judicial panel’s most prominent members (its president, the rapporteur judges and the opinion-writer) and that of law clerks.

EU court strikes down the language regime of EPSO’s recruitment process

On 24 September the General Court annulled three competition notices which require the candidates to choose English, French or German as their second language and as the language of communication with EPSO, the European Personnel Selection Office, responsible for recruiting staff to work for the European Union (Joined Cases T-124/13 and T-191/13). Italy and Spain requested the General Court to annul the relevant competition notices (published in December 2012 and January 2013), arguing that these are discriminatory and infringe the EU’s language regime established by Regulation No. 1 of 1958. The case was decided by the Eighth Chamber of the General Court, composed of three judges. The main author of the judgment is presumably the Greek judge, Dimitrios Gratsias, who is indicated as judge rapporteur.

Read more

Opinion 2/13 of the CJEU: Whose opinion?

While the U.S. Supreme Court, in a widely publicized case, is deciding on the states’ duty to recognize lawfully licensed same-sex marriages (Obergefell v. Hodges, judgment expected at the end of this month), the Court of Justice of the European Union (CJEU) delivered its opinion (Opinion 2/13) on a constitutional question of equally fundamental importance in last December. In the first case the judgment has not been delivered yet, but from the oral hearings and numerous comments we can already learn the possible personal position of all nine Supreme Court Justices participating in the decision. At the same time, six months after the publication of Opinion 2/13, we still know nothing about the personal position of the judges composing the CJEU. This striking contrast calls for a reflection.

Read more

A Flexible Constitution: The 4th Amendment to the Hungarian Fundamental Law – Part II

See Part I of this post here.

The text of the proposed Amendment was changed in certain respects during the parliamentary debate and in the constitutional affairs committee. A significant example is art. 19 of the Amendment aiming to modify the Fundamental Law's (FL) Closing Provisions. The proposal's original wording aimed at prohibiting any consideration of previous case-law of the Constitutional Court for interpreting the new FL. It was again a clear response to the Constitutional Court which continued to rely on its previous case-law, i.e. on decisions adopted under the old Constitution. Soon after the entering into force of the new FL, the Hungarian Constitutional Court in the reasoning of Decision no. 22/2012 (V. 11.) AB (available in English) clarified that in cases using the new FL as a basis for review it may anyway use the arguments included in its previous decisions, if the new constitutional provision has the same or similar content as the old constitutional provision. The Court added that it cannot, however, lead to a mechanical application of the previous case-law, but a careful comparison of the relevant provisions of the old and the new constitution is always required (see the reasoning of Decision 22/2012, par. 40-41).


Notwithstanding the Constitutional Court’s reasonable approach to transition from the old to the new constitution, which would allow continuity of Hungarian constitutional tradition without contradicting the new constitutional framework, the government decided to declare expressly ineffective all previous decisions of the Constitutional Court based on the old Constitution. Even if the wording of the provision was modified during the parliamentary debate, its message did not change. The new provision (point 5 of the Closing and Miscellaneous Provisions) also contains a second sentence specifying that the legal effects of the old Constitutional Court decisions remain intact. However, it only means that previously annulled legislation will not come into effect again. Thus, it is difficult to interpret the new wording differently from the old version: it seems clear that if previous Constitutional Court decisions lose their force, as the new provision states (hatályukat vesztik, in Hungarian), they cannot be taken into consideration in new cases. The Venice Commission expressed concerns already two years ago in its opinion on the new FL in relation to the proclamation of invalidity of the old Constitution included in the Preamble. According to the Venice Commission, if this proclamation “is meant to have legal consequences, it can only be read as ex tunc nullity”, and “it may be used as an argument for ignoring the rich case-law of the Hungarian Constitutional Court which (…) has played an important role in Hungary’s development towards a democratic state governed by the rule of law” (see Opinion no. 621/2011, par. 35). At that time the Hungarian government assured the Venice Commission that the above-mentioned proclamation of invalidity is to be understood as a political statement, having no legal consequences (see par. 37). The new provision introduced by the 4th Amendment seems to contradict this statement, and is difficult to interpret. What does it mean exactly that previous decisions lose their force when at the same time it is also provided that their legal effects remain intact? It seems clear the new version of the provision leads to the same result: the Constitutional Court cannot take into consideration its previous case-law. The Amendment’s clear message is that there should be no continuity in constitutional justice with the period between the regime change (1989-1990) and the adoption of the new FL (2011).


The list of provisions addressed to the Hungarian Constitutional Court does not end here. The Amendment also aims at preventing the Court from annulling constitutional amendments on substantive grounds. Article 24, par. 5, now provides that the Court may only review the conformity of the FL and an amendment with the procedural requirements of the FL pertaining to the adoption of the FL or its amendments. Furthermore, Art. 9 of the FL on the President of the Republic has also been amended in order to restrict his power to refer a constitutional amendment to the Constitutional Court to cases of incompliance with procedural rules (Art. 9, par. 3 [i]). It is a clear response to Decision no. 45/2012 (XII. 29.) AB of the Constitutional Court (available also in English). With this decision the Court in last December annulled a large part of the FL’s Transitional Provisions on the ground that they were enacted in excess of the constitutional delegation of power to enact transitional provisions, as they contained also substantive and non-temporary rules. However, in its reasoning the Court also stated that “it would be irreconcilable with the idea of a democratic State under the rule of law if the contents of the FL were becoming constantly disputable, thus making the contents of the FL, as the Constitutional Court’s standard, uncertain”. The argument goes on by underlining that constitutional legality has not only procedural requirements, but also substantial ones, and the constitutional criteria of a democratic state are at the same time constitutional values, principles and fundamental freedoms enshrined in international treaties. Consequently, the Constitutional Court may even examine the constitutionalization of the substantial requirements, guarantees and values of democratic states under the rule of law (see section IV/7 of the reasoning, par. 116-118). The Hungarian government has not respected the Constitutional Court’s standpoint, and decided to intervene in order to prevent the Court from any substantial review of constitutional amendments.

Moreover, the Amendment extends the restriction of the Constitutional Court's power in reviewing budgetary legislation (the central budget and its implementation, tax laws, pension and health care contributons, customs). A new paragraph inserted in Article 37 (par. 5) now provides that in the case of statutory provisions which entered into force during the period when the state debt exceeded half of the GDP, the restriction shall also apply if the state debt no longer exceeds half of the GDP, even if only in respect of this period. Paragraph 4 has provided (and it remained unchanged) that the Constitutional Court cannot review the constitutionality of budgetary legislation as long as the state debt exceeds half of the GDP, if not for the violation of certain constitutional rights expressly named by the same provision (right to life, human dignity, right to protection of personal data, freedom of thought, freedom of conscience and religion, and citizenship rights). As several observers have pointed out, the list does not contain the right to property. The Venice Commission has also condemned this unprecedented restriction of a constitutional court's powers (see Opinion 621/2011, para. 98), and expressed serious concerns about the extension of this restriction, already done by the Transitional Provisions now incorporated in the FL (see Opinion no. 665/2012, para. 38).


The Constitutional Court's competences and procedure are subject to changes also in some other aspects. The 4th Amendment modifies Article 24 on the Constitutional Court in several parts. One is the above-mentioned restriction on reviewing constitutional amendments. Another modification imposes a 30-day time-limit for the incidenter review decisions in order to prevent further delays in the cases of the referring ordinary courts (par. 2 [b]). Another important novelty is that the right to initiate ex post abstract review is extended to the President of the Curia (the supreme court) and the Chief Prosecutor (see Art. 24, par. 2 [e]). Moreover, a provision of the Constitutional Court Act (art. 53, par. 3) is elevated to the constitutional level: “The Constitutional Court shall examine or render null and void the provisions of any piece of legislation for which a review has not been requested only if its content is closely linked to that provision for which a review was requested.” It seems that this constitutional provision will lead to the elimination of the other condition determined by the CC Act, namely if failure to examine and annul the given provisions would entail infringement of legal certainty. As this additional criterion has given more liberty to the Constitutional Court to extend its review to norms not expressly challenged by the petitioner, it is likely that with the constitutionalization of the first part of the CC Act's provision the Amendment aims at restricting this liberty.


The Amendment is now waiting for the signature of President Áder who announced already two days after its adoption that he would have not sent it to the Constitutional Court for preventive review. (The announcement, stating also the reasons, is available here, in Hungarian.) The promulgation of the Amendment is expected in these days.


Facts and materials


  • The finally adopted version of the text of the 4th Amendment is available in English on the official website of the Hungarian government here. For an alternative unofficial translation see here. For the original Hungarian text see here.
  • Even if the amendment has been already approved by the Parliament, the Hungarian Minister of Foreign Affairs requested an opinion from the Venice Commission, with regard to the international commitments deriving from Hungary’s membership in the Council of Europe.
  • On 19 March the U.S. Helsinki Commission held a hearing on the 4th Amendent titled “The Trajectory of Democracy: Why Hungary Matters”, in which also a representative of the Hungarian government (József Szájer, one of the authors of the FL) testified. The video of the whole hearing is available here.
  • Joint Opinion of the Hungarian Helsinki Committee, the Eötvös Károly Policy Institute and the Hungarian Civil Liberties Union entitled “Main concerns regarding the Fourth Amendment to the Hungarian Fundamental Law”, published on 13 March.

A Flexible Constitution: The 4th Amendment to the Hungarian Fundamental Law – Part I

  • Shortly after the last elections in Hungary (2010) it became clear that the new government would have used its two-thirds majority in the legislature to make a new constitution. The idea of drafting a new constitution has been an issue for a long time in Hungary, since the country left behind its totalitarian past. It was, however, not expected that a government would have been able to draft it alone. The old constitution required only a two-thirds majority vote for constitutional amendments, which allowed the right-wing government to draft its own constitution. Even if we consider the so called “national consultation” process, consisting of sending (by post) a questionnaire to every Hungarian elector, who could give their opinion on twelve selected constitutional issues, and a few other attempts to involve the citizens in the constitution-making process through online forums (see for example this website), it cannot be affirmed that the Fundamental Law would be the result of a broad consultation and debate, and it was not subject to a referendum. (About the constitution-making process more in detail see a previous post on this blog.)

    It became even clearer after the entering into force of the new Fundamental Law (1 January 2012) that the government did not treat the constitution-making process differently from ordinary law-making. In fact, the procedure followed for the adoption of the first four amendments resembles the ordinary law-making procedure. They were adopted upon a proposal by a member or more members of the Parliament (MP), following a parliamentary debate. The only difference between a constitutional amendment and a cardinal law is that the former requires the two-thirds majority of all MPs, while the latter requires the two-thirds majority of the voting MPs. It means that if a government holds two-thirds majority in Parliament, and party discipline is strong in the governing coalition, as it is currently the case, the boundary between constitution-making and legislation is blurred.

    The Hungarian 4th Amendment is a 14 pages long document, incorporating the Transitional Provisions into the main body of the Fundamental Law and modifying or supplementing several of its articles. A few changes were made in the text of the proposal during the parliamentary debate and the discussions in the constitutional affairs committee. The Parliament finally adopted it on 11 March with 265 votes in favour and 11 against. The remaining 109 MPs abstained from voting or were not present in the House at all. None of the members of the governing coalition parties (Fidesz and KDNP, the Young Democrats and the Christian Democrats) voted against the Amendment, and only one of them was absent (detailed results of the voting here), which proves the strong party discipline mentioned above.

    The 4th Amendment introduces smaller or bigger changes into 27 articles of the Fundamental Law, inserts a new Article U in the first part entitled 'Foundation' (Alapvetés) and an almost completely new 'Closing and Miscellaneous Provisions'. The explanatory notes attached to the proposal (the English translation of the first proposal is available here, the original Hungarian version here) state that the Amendment's goal is to incorporate the Transitional Provisions into the Fundamental Law after that in December the Constitutional Court declared them invalid (Decision no. 45/2012 [XII. 29.] AB) on the ground that they were enacted in excess of the constitutional delegation of power to enact transitional provisions, as they contained also substantive and not temporary rules [see p. 16 of the explanatory notes – the page number refers to the original Hungarian version]. Consequently, the Amendment builds in the substantive rules of the Transitional Provisions into the main text of the Fundamental Law, and incorporates the rest in the final provisions renamed 'Closing and Miscellaneous Provisions' for the purpose [see p. 25]. (The text of the uniform proposal finally voted by the Parliament is available for the moment only in Hungarian here.)

    The explanatory notes mention expressly also other three Constitutional Court decisions to which the Amendment is a response [see p. 17]. First, in response to Decision no. 43/2012 (XII. 20.) AB, it adds a new sentence to Article L, par. 1, in order to elevate the basis for the concept of family to the constitutional level. Article L, which already defined marriage as “the union of a man and a woman” and the family as “the basis of the nation's survival”, now also specifies that “the basis of the family is marriage and the parent-child relationship”. This definition of family was provided by a cardinal law (art. 7 of Act no. CCXI of 2011 on the protection of families) declared unconstitutional by the Constitutional Court on the ground that it defined family too restrictively.

    Second, in response to Decision no. 1/2013 (I. 7.) AB, the Amendment inserts three new paragraphs into Article XI. Paragraph 3 now provides that “political advertising can be broadcasted in the media only free of charge in order to guarantee the conditions for the formation of a democratic public opinion and equal opportunities”, and during the electoral campaign only the public media service providers are allowed to broadcast political advertising. New paragraphs 4 and 5 inserted in the same Article aim at laying the foundations for the criminalisation of hate speech. The explanatory notes state clearly [see p. 21] that it is also a response to the Constitutional Court’s case-law. Indeed, the Court struck down such criminalisation as an unnecessary and disproportionate restriction of the freedom of speech already in 1992 (see Decision no. 30/1992 [V. 26.] AB). The Amendment lays the emphasis on human dignity, and provides that the exercise of the right to free speech cannot be aimed at violating another person’s human dignity (Article IX, par. 4). Paragraph 5 specifies that the exercise of the right to free speech cannot be aimed at violating the dignity of the Hungarian nation or of other national, ethnic, racial, or religious communities, adding also that a person belonging to such a community has the right to bring a claim to court against hate speech. The explanatory notes clarify [see p. 21] that this claim means a civil claim for compensation. According to the proponents of the Amendment the uniform practice of the national courts has held that a violation of individual rights is established only if the injured party, as an individual, can be identified, directly or indirectly, through the behaviour of the offender, thus if the victims of hate speech cannot be identified as an individual in the offending expression, they lose the right to bring a claim under civil law. Therefore, the Amendment aims at offering a remedy to these persons.

    Third, in response to Decision no. 38/2012 (XI. 14.) AB, the Amendment modifies Article XXII on the right to housing and access to public services, inserting a provision that constitutes – according to the proponents – a “requisite defence against improper use of public places” [see p. 17 of the explanatory notes]. Besides stating that “the state and local governments shall strive to guarantee housing for every homeless person in order to create the conditions for housing with human dignity”, Article XXII, par. 3, now also provides that a “law or local government decree may outlaw the use of certain public space for habitation in order to preserve public order, public safety, public health and cultural values”. The explanatory notes emphasise that a finding of unlawfulness may only be used in the interest of achieving the specific objectives, and may only be applied to a specific part of the public area [see p. 22].


    The Amendment is a response to the practice of the Constitutional Court in several other aspects as well, even if it is not always explicitly declared by the proponents in the explanatory notes. Article VII, par. 2, now provides that the Parliament has the power to recognise religious organisations as churches in order to collaborate with them for the public interest. Even if it adds that constitutional complaints can be presented against the cardinal law on the recognition of churches, it is clearly a response to the (four) constitutional complaints brought to the Constitutional Court against Act no. CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities. The Ombudsman also challenged the Act in August 2012. The Court delivered its decision during the parliamentary debate of the Amendment, on 1 March (Decision no. 6/2013 (III. 1.) AB), retroactively invalidating several provisions of the Act (the decision is also a classic example of plurality opinion, five judges dissented and four wrote or joined a concurring opinion). The Act was examined also by the Venice Commission which found that it “sets a range of requirements that are excessive and based on arbitrary criteria with regard to the recognition of a church” (see Opinion no. 664/2012, par. 108).

    Moreover, the Amendment modifies Article XI on the right to education, and adds a new paragraph providing that: “Law may set as a condition for receiving financial aid at a higher educational institution the participation in, for a defined period, employment or enterprise that is regulated by Hungarian law.” The explanatory notes justify the provision by emphasising that state higher education institutions are “part of the state organisational framework and their operations are funded out of the central budget” [p. 21]. The notes make it clear that the new paragraph “makes it possible for the law to place conditions on material support for participation as a student in higher education (state funding for studies)” [p. 22]. The proponents explain that “there are two components of this condition: the existence of work which creates value within the meaning of Article M (1) of the Fundamental Law; and that it should serve the interests of the communities of Hungary”, specifying that it means work in a legal relationship under Hungarian jurisdiction, not necessarily completed within the territory of Hungary. The required period and eventual exemptions are to be determined by the legislator. It has already been done by Act no. CCIV of 2011, delegating this task to the government, but this attempt was struck down by the Constitutional Court last year (Decision no. 32/2012 (VII. 4.) AB, a short summary in English here), which found it to be an ultra vires delegation of power. A week after the decision of the Constitutional Court, the government modified the Act including a provision requiring students to work for a Hungarian employer under Hungarian jurisdiction for a period double of the length of study financed by the state (art. 48/A) in the twenty years following graduation. Now a constitutional foundation is provided for this rule in Article XI of the Fundamental Law.


    Part II of the post will be published soon.



Hungary: voter registration declared unconstitutional

With its first decision delivered in 2013 (Decision no. 1/2013 [I.7.] AB) the Hungarian Constitutional Court annulled several provisions of the new law on electoral procedure. The new law has not entered into force yet, as the President of the Republic decided to send it to the Constitutional Court for a preventive review before signing it. President János Áder, who was elected by the Parliament last May and was among the founders of the governing Fidesz party, requested a preventive control of constitutionality of six provisions, two of which were related to voter registration and other four set limits on political campaigning before elections. The Constitutional Court found unconstitutional and annulled all of them. This post will analyse only the part of the judgment dealing with voter registration.


The Constitutional Court's decision on voter registration was far from unanimous: four of the five dissenting judges did not agree with it. Their dissent relied on both procedural and substantive grounds. The rapporteur judge of the case was Judge Stumpf, appointed to the Court in July 2010 by the current parliamentary majority. The challenged law (its text available in Hungarian here) was voted by the Parliament on 26 November, and President Áder decided to request its preventive review on 6 December (a copy of his letter, in Hungarian, can be downloaded here). He expressed his worries about the constitutionality of two rules concerning voter registration: art. 88, which outlines the procedure of registration, and art. 92, which applies the registration procedure provided for citizens resident abroad also to citizens living in Hungary who do not have a registered residence or domicile. According to President Áder the registration's modalities are defined too narrowly. The challenged law requires personal appearance at the local authorities or electronic registration via internet from resident citizens, while it offers the possibility to citizens resident abroad to register by post or via internet. The only exception to this rule is provided for persons with disabilities and detainees, who can request to be registered without leaving their home or the prison (art. 89 [2]). President Áder argues that requiring the citizens to register in the place of their residence is a disproportionate restriction of the right to vote protected by Art. XXIII of the new Fundamental Law, as there is no constitutional reason that could justify it. This limitation is especially onerous for citizens who commute for work or work temporarily abroad, who could in practice register only via internet. (And also in order to obtain a username and password for the website where registration can be done, personal appearance at the local authorities is required.) The previous electoral law provided that citizens temporarily working abroad who keep their residence in Hungary could register at a diplomatic office (embassy or consulate) abroad. Finally, President Áder expressed his concerns about the rule that excludes people who do not have a registered residence or domicile (for example homeless people) from personal registration, which would violate the principle of non-discrimination laid down Art. XV (2) of the new constitution.


The arguments advanced in favour of the introduction of voter registration


The new law on the electoral procedure that (wanted to) introduce voter registration actually extends voting rights to a broader range of citizens: for the first time since Hungary's democratic transition the right to vote is granted also to citizens resident abroad. This concession is coherent with the government's policy concerning Hungarian minorities living in the neighbouring countries, who since 1 January 2011 can request Hungarian citizenship. It was later written in Art. D of the New Fundamental law (adopted in April 2011) that “Hungary shall bear responsibility for the fate of Hungarians living beyond its borders”. This extension of voting rights required a revision of the electoral system and of the voting procedure, and the government intended to create a central electoral register containing the names of all voters. However, there was also another reason. President Áder, in his letter sent to the Constitutional Court, refers to a report of the Ombudsman published in May 2012 (no. AJB-267/2012) which finds that “the Hungarian domicile register in practice does not offer reliable information on the place of residence and domicile of the people”. Most of the complaints received by the Ombudsman were related to problems raised by the distinction between residence (lakóhely) and domicile (tartózkodási hely) made in Hungarian administrative law and that the former is a condition for the registration of the latter. Moreover, the government intended to use the voter registration system to adjust the electoral districts to the number of people effectively living in their territory. In the last years more and more Hungarians have gone to work abroad. Most of them, however, continue to be included in the domicile register. The Constitutional Court did not accept any of these arguments.


The Constitutional Court's decision


First of all it is to be underlined that the President of the Republic did not ask the Constitutional Court to declare unconstitutional voter registration as such. He expressed concerns about certain rules relating to the practical implementation of registration, but did not argue against voter registration. Actually he did not even examine the constitutionality of voter registration, as at the moment of his request for preventive review the legal basis of voter registration was to be found in art. 23 (3)-(5) of the Transitional Provisions of the Fundamental Law. The legal background of the case changed fundamentally a few weeks later when the Constitutional Court, on petition by the Ombudsman, annulled art. 23 (3)-(5) of the Transitional Provisions (Decision no. 45/2012 [XII.29.] AB). According to the Court several norms of the Transitional Provisions, among which that determining voter registration as a condition for the exercise of the right to vote, were unconstitutional as they did not contain transitional rules.


Three of the dissenters criticised the majority for not inviting the President of the Republic to reconsider and eventually modify his petition. According to Judge Pokol the President of the Republic could not know that his request for the review of certain technical rules of voter registration would have led to the annulment of the institution as such (see para. 181 of his dissenting opinion attached to the Court's decision). The majority opinion explains that the case was not sent back to President Áder for three reasons. First, art. 53 (6) of the Constitutional Court Act excludes the withdrawal of petitions (with the exception of constitutional complaints). Second, art. 52 (3) of the same Act allows the Court to “examine and annul other provisions of the challenged law if the contents of these provisions are closely related to each other and if failure to examine and annul the given provisions would entail infringement of legal certainty”. Finally, the Court argues that if it invited the President to reconsider his petition, it would have not been able to respect the time-limit of 30 days set by art. 6 (6) of the Fundamental Law for deciding on a petition received from the President of the Republic. Judge Pokol tries to refute this argumentation by stating that there is a gap in art. 53 (6) of the Constitutional Court Act, as it does not provide a solution for the case in which the constitutional provisions are modified after that the petition is presented to the Constitutional Court (para. 182). According to Judge Pokol it should have been for the Court to fill in this gap and to send the petition back to the President, considering also that the 30-days limit would logically start again in this case. Judge Szívós, on the other hand, in her dissenting opinion argues that sending back the petition and receiving an answer would not have required more than three working (para. 200). The question is not merely an exercise for pedantic lawyers. It had a fundamental importance in this case, as President Áder could have changed his petition stating expressly that he did not intend to challenge the institution of voter registration, only certain rules related to its practical implementation. In this case the constitutional judges would have not been able to use art. 52 (3) of the Constitutional Court Act extending the review to the institution of voter registration itself.


As regards the merits of the question of constitutionality, the Court begins its analysis with an account of Strasbourg case-law, with particular reference to the judgment delivered in the case of The Georgian Labour Party v. Georgia (application no. 9103/04) in 2008 (para. 43-47, 1/2013 AB). Even if in this case no violation of the Convention was found, the ECtHR’s reasoning contains some relevant findings concerning voter registration. For example, it states that „any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another” (para. 89, Appl. no. 9103/04), and that “the active system of voter registration cannot in itself amount to a breach of the applicant party’s right to stand for election” provided by Art. 3 of Protocol no. 1 of the ECHR (para. 92, Appl. no. 9103/04). The Constitutional Court found that the Hungarian electoral roll is a working system that has not displayed such serious shortcomings as the Georgian electoral roll which “omitted «entire apartment blocs or streets», listed many deceased persons, contained a large number of duplicate entries, listed voters in the wrong districts, etc.” (para. 85, Appl. no. 9103/04). Thus, according to the Hungarian constitutional judges, the introduction of active voter registration is not justified by any objective need (para. 46, 1/2013 AB). Judge Kovács, professor of international law, in his concurring opinion makes a more in-depth analysis of Strasbourg case-law, in particular with the criteria laid down in the Orujov v. Azebaijan case (application no. 4508/06) decided in 2011 which is to be considered a landmark case on the interpretation of Art. 3 of Protocol no. 1 ECHR (see in particular para. 40-42, Appl. no. 4508/06). Judge Kovács makes also a brief comparative analysis, examining those countries that require active voter registration (e.g. the U.S., France, and Portugal), and concludes that the foreign solutions are more simple and less onerous for the voters than the one adopted by the Hungarian legislator (para. 136-139, 1/2013 AB).


The Court argues in its reasoning that there is no constitutional reason for requiring the citizens resident in Hungary to register in order to be able to exercise their constitutional right to vote. The state disposes of all necessary data even without their registration (para. 67). Moreover, the introduction of active voter registration is not suitable to adjust the electoral districts to the number of people effectively living in Hungary, as in virtue of art. 4 (8) of the new electoral law[1] adjustments can be made only on the basis of the previous elections’ experiences. In the year before the parliamentary elections the electoral districts cannot be changed (para. 71). The Court underlines that it does not consider voter registration as such to be unconstitutional, but only the modalities of its implementation. It observes that the new Fundamental Law actually extends the right to vote to all Hungarian citizens, regardless their place of residence, and in relation to citizens resident abroad registration is an essential condition for the exercise of this right (para. 75-77). But it does not justify the extension of the registration requirement to resident citizens. It is for the electoral roll to serve the exercise of voting rights and not to the contrary (para. 80).


After the decision of the Constitutional Court the Hungarian government decided to retreat and to give up the idea of active voter registration.

[1] Act no. CCIII of 2011, entered into force on 1 January 2012. The Venice Commission and the OSCE/ODIHR delivered a joint opinion on this Act in June 2012: Opinion no. 662/2012.