Background

On 11 March 2013, the Parliament of Hungary adopted the Fourth Amendment (CDL-REF(2013)014) to the Fundamental Law (CDL-REF(2013)016 – consolidated version). The Venice Commission has been requested to examine the Fourth Amendment from the point of view of its compatibility with Council of Europe standards – by the Secretary General of the Council of Europe - and with regard to international commitments that derive from Hungary’s membership of the Council of Europe – by the Hungarian authorities.

The present opinion should be seen in the light of a number of earlier opinions on the Hungarian constitutional and legislative texts, which the Venice Commission provided since 2011. For the assessment of the Fourth Amendment, the following opinions are of particular relevance:

• Opinion on three legal questions arising in the process of drafting the new Constitution of Hungary[1];
• Opinion on the new Constitution of Hungary[2];
• Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary[3];
• Opinion on Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities of Hungary[4];
• Opinion on Act CLI of 2011 on the Constitutional Court of Hungary[5];
• Opinion on Act CLXIII of 2011 on the Prosecution Service and Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and other Prosecution Employees and the Prosecution Career of Hungary[6];
• Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary[7].

The Hungarian Government provided useful explanations on the Fourth Amendment in the form of a Technical Note (attached to the text of the Fourth Amendment in document CDL-REF(2013)014) and the more detailed Background Document on the Fourth Amendment to the Fundamental Law (CDL-REF(2013)019, hereinafter, the “Background Document”). During the meetings in Budapest, the representatives of the Hungarian Government also presented draft Bill no. T/10593 (CDL-REF(2013)017, hereinafter, “the Bill”), which is to implement the Fourth Amendment (CDL-REF(2013)014).  In accordance with its mandate, this Opinion does neither evaluate this draft law or other ordinary Hungarian legislation, nor does it evaluate the Fourth Amendment in the general context of its implementing legislation. However, it will sometimes refer to ordinary laws.

Conclusions

 The Fourth Amendment perpetuates the problematic position of the President of the National Judicial Office, seriously undermines the possibilities of constitutional review in Hungary and endangers the constitutional system of checks and balances. Together with the en bloc use of cardinal laws to perpetuate choices made by the present majority, the Fourth Amendment is the result of an instrumental view of the Constitution as a political means of the governmental majority and is a sign of the abolition of the essential difference between constitution-making and ordinary politics.

The Fourth Amendment to the Fundamental Law has changed the Constitution in a number of aspects, as concerns individual human rights, as concerns the ordinary judiciary and as concerns the role of the Constitutional Court of Hungary.

In constitutional law, perhaps even more than in other legal fields, it is necessary to take into account not only the face value of a provision, but also to examine its constitutional context. The mere fact that a provision also exists in the constitution of another country does not mean that it also ‘fits’ into any other constitution. Each constitution is the result of balancing various powers. If a power is given to one state body, other powers need to be able to effectively control the exercise of this power. The more power an institution has, the tighter control mechanisms need to be constructed. Comparative constitutional law cannot be reduced to identifying the existence of a provision the constitution of another country to justify its democratic credentials in the constitution of one’s own country. Each constitution is a complex array of checks and balances and each provision needs to be examined in view of its merits for the balance of powers as a whole.

However, the Fourth Amendment itself brings about or perpetuates shortcomings in the constitutional system of Hungary. The main concerns relate to to the role of the Constitutional Court and to a lesser extent the ordinary judiciary. In the field of human rights in general, several issues are regulated in a manner disregarding earlier decisions by the Constitutional Court.

These constitutional amendments are not only problematic because constitutional control is blocked in a systematic way, but also in substance because these provisions contradict principles of the Fundamental Law and European standards. In particular:

• the provisions on the communist past attribute responsibility in general terms, without any individual assessment;
• the absence of precise criteria for the recognition of churches and of an effective legal remedy against the decision not to recognise;
• the limitations on advertising have a disproportionate effect on opposition parties; and
• the provisions on the dignity of communities are too vague and the specific protection of the "dignity of the Hungarian nation" creates the risk that freedom of speech in Hungary could, in the future, be curtailed in order to protect Hungarian institutions and office holders.

In the field of the judiciary, the Fourth Amendment constitutionalises the overwhelming position of the President of the National Judicial Office as compared to the National Judicial Council, which is not even mentioned in the Fundamental Law. However, the Venice Commission warmly welcomes the Government’s announcement that it will propose to Parliament the removal of the system of transfer of cases on the constitutional and the legislative level.

The Venice Commission also welcomes the Government’s announcement to introduce a parliamentary procedure to abandon the special tax in case of unexpected expenditures resulting from court decisions. Furthermore, the Commission welcomes the Government’s announcement to introduce a parliamentary procedure to extend the deadline for the Constitutional Court in dealing with requests from ordinary courts from 30 days to 90 days. This proposal would result in an improvement but the deadline is still very tight and should be made more realistic. The Commission expresses its hope that Parliament will be able to implement such proposals soon.

Like other Central and East European countries, Hungary introduced the separation of powers and checks and balances in its Constitution and Hungary established a Constitutional Court. This Court quickly became renowned in Europe and abroad for its decisions advancing constitutional principles. The Fourth Amendment seriously affects the role of the Constitutional Court of Hungary in a number of ways:

1.       A series of provisions of the Fourth Amendment raise issues to the constitutional level as a reaction to earlier decisions of the Constitutional Court. Reacting to Constitutional Court decisions by ‘constitutionalising’ provisions declared unconstitutional is a systematic approach, which was applied already to the old Constitution, then to the Transitional Provisions and now to the Fundamental Law itself.  It threatens to deprive the Constitutional Court of its main function as the guardian of constitutionality and as a control organ in the democratic system of checks and balances.

2.       The removal of the possibility to base itself on its earlier case-law unnecessarily interrupts the continuity of the Court’s case-law on a a body of principles, which transcend the Constitution itself and directly relate to the basic principles of the Council of Europe: democracy, the protection of human rights and the rule of law.

3. Instead of removing the limitations on the competence of the Constitutional Court to review potentially unconstitutional legislation which has a budgetary incidence, the Fourth Amendment perpetuates this system which shields potentially unconstitutional laws from constitutional review even when budgetary problems have subsided.

Taken together, these measures amount to a threat for constitutional justice and for the supremacy of the basic principles contained in the Fundamental Law of Hungary. The limitation of the role of the Constitutional Court leads to a risk that it may negatively affect all three pillars of the Council of Europe: the separation of powers as an essential tenet of democracy, the protection of human rights and the rule of law.

The Venice Commission stresses that the Hungarian Fundamental Law should not be seen as a political instrument. The crucial distinction between ordinary and constitutional politics and the subordination of the former to the latter should not be disregarded, lest democracy and the rule of law be undermined in Hungary.

  Text of the opinion CDL-AD(2013)012