Katalin Kelemen

• 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.

   

  Timeline:

  • 8 February 2013: Proposal no. T/9929 submitted to the Parliament by the governing parties’ MPs
  • 19 February: the parliamentary debate starts
  • 6 March: the uniform proposal (egységes javaslat) (T/9929/55) is submitted to the Parliament for the final vote
  • 11 March: voting in the Hungarian Parliament (265 in favour, 11 against, 109 not present or abstained)
  • 11 March: Joint statement by European Commission President and Council of Europe Secretary General

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.

After the Venice Commission (see a previous post here), with its Opinion no. 663/2012 issued in May, and the Hungarian Constitutional Court’s decision delivered in July (available in Hungarian here), on 6 November also the Court of Justice of the European Union expressed its opinion (Case C-286/12 European Commission v Hungary) on art. 90 (ha) of the Hungarian Act on the Legal Status and Remuneration of Judges (the Act’s text is available in English here), finding a violation of the principle of equal treatment. The provision in question lowered the upper-age limit of mandatory retirement of ordinary judges, prosecutors and notaries from 70 to 62 years, with retroactive effect.

In his speech reacting to the ECJ’s decision Prime Minister Viktor Orbán stated: „It has been a long time that I have not seen a dead dog being beaten in his head. That is the situation here.” (see the video here, at 04:27) He referred to the fact that the law found to be incompatible with EU law by the European Court had already been annulled by the Hungarian Constitutional Court a few months before.

However, the ECJ examined also the Transitional Provisions of the Hungarian Fundamental Law (in particular Art. 12), not challenged before the Constitutional Court (see par. 46 of the ECJ’s reasoning). Furthermore, the three bodies’ opinions offer different arguments and were delivered on different legal bases. The Venice Commission in March examined the practical arguments advanced by the Hungarian government in defence of the law (arguing that younger judges are more suitable to carry a heavy workload and more ambitious and flexible), but found them not convincing and not sufficiently proven (par. 104-105). The Commission expressly invited the Hungarian authorities „to provide for a less intrusive and not so hasty solution for a gradual decrease of the upper-age limit” (par. 110). Later in July the Hungarian Constitutional Court found a violation of judicial independence, enshrined in art. 26, par. 1 of the new Fundamental Law (its text is available here, in English). The law was challenged by a few judges forced to retire by lodging a new form of constitutional complaint introduced by the new Constitutional Court Act (discussed in detail in a previous post). Indeed, the complainants reached the Constitutional Court directly, i.e. not through an ordinary court’s proceedings, as the challenged law interfered with their rights directly (see art. 26, par. 2 of the new Constitutional Court Act). Art. 90 (ha) was declared unconstitutional, but the decision was far from unanimous. Seven judges expressed their dissent in six dissenting opinions (the Court is composed of 15 judges). The opinion of the Court was delivered by its President, Judge Péter Paczolay.

The European Commission started an infringement procedure against Hungary well before the decision of the Constitutional Court, with a letter of formal notice sent on 17 January 2012, in which it set out its view that the obligations under Directive 2000/78/EC on equal treatment in employment and occupation had not been fulfilled by Hungary. After issuing a reasoned opinion (in March), the European Commission brought an action to the Court of Justice in June, 12 days before the publication of the Venice Commission’s opinion. It means that the proceedings before the Hungarian Constitutional Court and before the European Court of Justice for some time ran parallel. Both expressed a negative opinion on the challenged law, even if on different legal bases. As mentioned above, the Constitutional Court found a violation of the principle of judicial independence, enshrined in the national constitution, while the ECJ found an incompatibility with an EU Directive.

In its judgment the ECJ takes into consideration the Hungarian Constitutional Court’s decision (par. 21) and the Hungarian government’s argument that the case has lost its purpose and there is no lo longer need to adjudicate on part of the action (par. 23 and 40). However, the Court does not depart from its case-law, and confirms that the failure to fulfil obligations must be examined on the basis of the position in which the Member State at issue found itself at the end of the period laid down in the reasoned opinion (see, among others, cases C-209/02 Commission v Austria [2004] and the very recent C-565/10 Commission v Italy [2012]), in this case on 7 April 2012, well before the decision of the Constitutional Court. The ECJ also underlines that the repeal of the challenged law by the Constitutional Court did not directly affect the validity of those individual measures by which the employment relationships of the judges concerned were brought to an end, those persons are not automatically reinstated (par. 46).

In fact, those 234 judges who were forced to retire on the basis of the challenged law are obliged to bring proceedings for the annulment of those measures in order to be reinstated. Several proceedings have been initiated before labour courts all over the country. A few of them have already reached the court of appeal level. For example, two judges from Kaposvár won their case before the Court of Appeal of Zalaegerszeg, which at the end of October ordered their reinstatement. The judgment obliged the National Judicial Office to propose the re-appointment of the judges concerned to the President of the Republic within 8 days. Thus, the Court of Appeal affirmed the labour court’s judgment which had been appealed by the National Judicial Office arguing that the court had no competence for the reinstatement of the judges, but only for a declaration of the unlawfulness of their forced retirement. The decision of the Court of Appeal of Zalaegerszeg will in all likelihood be followed by the other courts in the other ongoing cases.

As to the decision of the European Court of Justice delivered on 6 November, the reasoning concerning the substance of the action (par. 48-81) relies heavily on recent case-law, in particular on Fuchs and Köhler (Joined Cases C-159/10 and C-160/10 [2011]) and Prigge and Others (C-447/09 [2011]), that interpret Article 6 on discrimination on grounds of age of Directive 2000/78/EC. The Court examines the question of legitimate aim that could objectively and reasonably justify the contested provisions, and states beforehand that the aim of standardisation of the age-limit for compulsory retirement in the context of professions in the public sector can constitute a legitimate employment policy objective (par. 61). Also the aim of establishing a more balanced age structure facilitating access to young lawyers to the professions of judge, put forward by Hungary in the pre-litigation procedure, can constitute a legitimate aim of employment and labour market policy, according to the Court (par. 62). However, these aims can justify the contested discriminative measure only if it is an appropriate and necessary means of achieving them (principle of proportionality).

As regards the first aim (standardisation of the age-limit in the public sector), the Court accepts the argument that the contested measure is an appropriate means of achieving this aim, but refuses to accept its necessary nature. According to the Court, the retired judges had a well-founded expectation that they would be able remain in office until the age of 70 (par. 67). The contested provisions abruptly lowered the age-limit to 62 without introducing transitional measures of such a kind as to protect the legitimate expectations of the persons concerned (par. 68). It also means that their retirement pension will be at least 30% lower than their remuneration, and the cessation of functions does not take into account contribution periods, which does not therefore guarantee the right to a pension at the full rate (par. 70). The Court states that there was no evidence provided that would have proved that more lenient provisions would not have made it possible to achieve the objective at issue (par. 71).

As regards the second aim (establishing a more balanced age structure facilitating access for young lawyers to the professions of judge), the ECJ considered the contested provisions not even appropriate to achieve it, as in the medium and long terms they do not ensure a more balanced age structure. The Court explains that while in 2012 the turnover of personnel in the professions concerned is subject to a very significant acceleration due to the fact that eight age groups (from 63 to 70) will be replaced by one single age group, that turnover rate will be subject to an equally radical slowing-down in 2013 when only one age group will have to be replaced (par. 78).

Concluding, the European Court of Justice declares that by adopting a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach the age of 62 Hungary has failed to fulfil its obligations under Articles 2 and 6(1) of Directive 2000/78/EC, because the above mentioned measure gives rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued.

The extensive dialogue between the Venice Commission and the Hungarian government continues. On 19 June the Venice Commission published its opinion on the  new Constitutional Court Act of Hungary (its text in English available here), adopted in November 2011 and entered into force together with the new Fundamental Law on January 1, 2012 (already presented on this blog, here).  Opinion no. 665/2012 was adopted on request by the Monitoring Committee of the  Parliamentary Assembly of the Council of Europe, at its 91^st plenary session on 15-16 June.

This Opinion is only one a long series of documents issued by the Venice Commission in relation to the new constitutional asset of Hungary (see, for example, the Opinion no. 663/2012 on the cardinal laws concerning the judiciary, delivered in March, and discussed on this blog). At the same plenary session, the Venice Commission adopted also other three opinions concerning Hungary: Joint Opinion no. 662/2012 concerning the Act on parliamentary elections (requested by the Hungarian Foreign Minister), Opinion no. 671/2012 concerning the Act on the rights of nationalities and Opinion no. 668/2012 concerning the Acts on the prosecution service and on the status of the Prosecutor General (requested by the Monitoring Committee).

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The Venice Commission issued a new opinion concerning the Hungarian legal system on 19 March, examining two cardinal laws regulating the judiciary (Opinion no. 663/2012). This is only the first of a long series of opinions that are going to be delivered by the Venice Commission, since it received several requests of opinion at the beginning of this year. The Hungarian Foreign Minister, János Martonyi, asked the Venice Commission to provide opinions on the Hungarian cardinal laws concerning the independence of the judiciary, freedom of religion and parliamentary elections. Moreover, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe also requested the Venice Commission to provide its opinion on five further Hungarian cardinal laws, namely those concerning freedom of information, the Constitutional Court, prosecution, nationality issues and family protection.

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On December 19 the Hungarian Constitutional Court delivered a decision (no. 1746/B/2010 – for the moment available only in Hungarian) which annuls some provisions of the Act on the freedom of the press and the fundamental rules on media content (Act no. 2010/CIV – for an English translation see here), and of the Act on media services and mass media (Act no. 2010/CLXXXV – for an English translation see here) in the very last moment, before the curtailing of its openness entered into force. After New Year's Eve the Constitutional Court would not have been able to deliver a decision, since the constitutional review of the media laws was initiated by private persons, NGOs and individual members of the Parliament through actio popularis, an instrument which is now abolished by the new Fundamental Law and Constitutional Court Act, both entering into force on January 1 (see a previous post). The Act also provided for the termination of all ongoing proceedings at the moment of its entering into force, except for those which were initiated by one of those persons or groups entitled to challenge the constitutionality of a law according to the new rules (i.e. the government, a quarter of the members of Parliament and the ombudsman). So the Constitutional Court delivered its decision less then two weeks before this moment and it is based on the provisions of the old Constitution, which is not in force anymore. However, Article 61 concerning the freedom of expression was modified already in July 2010. New paragraphs were introduced in order to provide for the right to receive adequate information in respect of public affairs and a constitutional basis for the creation of a new administrative authority. Furthermore, the last new paragraph (par. 5) determined that for the adoption of a law concerning the media a two-thirds majority is required.

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On November 14 the Hungarian Parliament (with 252 votes in favour and 105 against) adopted a new law on the Constitutional Court (Act no. 2011/CLI). This new law is going to replace the Constitutional Court Act currently in force (still available on the website of the Court) after January 1, 2012. It means that the new law will enter into force together with the new constitution or Fundamental Law (see also an older post on its adoption). In fact, the reason for adopting a completely new law instead of just modifying the former one is that it elaborates a new scheme for Hungarian constitutional justice, based on the new constitution. The knowledge of this Act is essential for assessing the new system.

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La nuova Costituzione ungherese aumenta il numero dei giudici costituzionali da undici a quindici che continueranno ad essere eletti tutti dal Parlamento a maggioranza dei due terzi. La nuova Costituzione entra in vigore all’inizio del 2012, ma l’aumento del numero dei giudici costituzionali è stato anticipato da un emendamento costituzionale, approvato nel maggio 2011. Così il Parlamento ungherese si è potuto avvalere del nuovo sistema di nomina, e lo scorso 27 giugno ha eletto cinque nuovi giudici costituzionali che sono entrati in carica il 1 settembre. Sono stati eletti cinque nuovi membri e non soltanto quattro, perché c’era anche un posto vacante da ricoprire. I nuovi giudici costituzionali sono: Béla Pokol, professore universitario di teoria del diritto e tra il 1998 e il 2002 deputato parlamentare (del FKGP – Partito Indipendente dei Piccoli Proprietari, attualmente non presente in Parlamento); Egon Dienes-Oehm, un giurista con esperienza nel settore privato, nella pubblica amministrazione, in ambito comunitario e in quello universitario; István Balsai, deputato parlamentare (del partito Fidesz attualmente al Governo) e nei primi anni Novanta Ministro della Giustizia; Péter Szalay, avvocato, consigliere politico nel periodo della transizione democratica; e l’unica donna, non solo tra le nomine ma tra i quindici membri della Corte costituzionale, Mária Szívós, giudice penale della Corte suprema.

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The new Hungarian Constitution has not yet entered into force and Europe's two leading international organisations (the Council of Europe and the European Union) have already issued an opinion about it, demanding some changes to be done.
The Council of Europe gave its first opinion in the drafting stage of the new Constitution (Opinion no. 614/2011 of 28 March 2011), related to three specific legal questions, on request by the Hungarian government. The working group of the Venice Commission, composed of five members, had to answer questions concerning: 1) the incorporation in the new Constitution of provisions of the EU Charter of Fundamental Rights; 2) the role and significance of the ex ante review among the competences of the Constitutional Court; 3) the role and significance of the actio popularis in the ex post constitutional review. Yet the Commission did not limit itself to answer these three questions, but commented also the process of the adoption of the Constitution, expressing harsh criticism over the lack of dialogue between the government and the opposition and the tight schedule established for its adoption that prevented an extensive public debate on the proposed text.

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