FOURTH AMENDMENT TO THE HUNGARIAN CONSTITUTION MAIN ISSUES OF CONCERN. Mélanie DE SAQUI DE SANNES, LL.M. Gide Loyrette Nouel, Budapest

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1 FOURTH AMENDMENT TO THE HUNGARIAN CONSTITUTION MAIN ISSUES OF CONCERN Mélanie DE SAQUI DE SANNES, LL.M. Gide Loyrette Nouel, Budapest I. Introduction and background The latest and most significant amendment to the young Hungarian Constitution entered into force on April 1 st, , fueling the intense debate around the wave of constitutional and legal reform in the country. Serious doubts over the compatibility of this Fourth constitutional amendment with the principle of the rule of law have been voiced on national 2 and international 3 levels. Hungary is once more the cause of important concern, two years after the adoption of its new Constitution 4 attracted the scrutiny of both the European Commission 5 and the Venice Commission. 6 The ongoing wave of reform was made possible by an exceptional situation of parliamentary supermajority. The conservative party Fidesz, led by actual Prime Minister Viktor Orbán, obtained - together with its ally KDNP (Christian Democratic People's Party) - 2/3 of seats in Parliament following the 2010 elections. From a political point of view, the governing party has thus been given considerable leeway to undertake the in-depth reform it deemed necessary to break with Hungary s communist past 7 and face economic challenges. 8 It is however accused by the opposition of abusing its power to pass measures considered, in form, to lack sufficient prior political debate 9 and, in substance, to undermine democracy. 10 From a legal point of view, the 2/3 majority fulfilled the requirements for the modification of the Hungarian constitutional order, through reforms at constitutional and legislative level. The supermajority adopted the new Constitution, 11 as well as so-called cardinal laws, which are required by the Constitution in order to specify certain areas of the constitutional order (e.g. operation of the Constitutional Court, administration of courts, protection of families, freedom of the press). 12 In addition, the Parliament enacted Transitional Provisions designed to organize the process of moving to a new constitutional order (e.g. determining the impact of the new Constitution on previously adopted laws and on the mandate of elected officials). 13 The new Constitution was amended 14 several times within the year following its entry into force. The First constitutional amendment 15 gave constitutional value to the Transitional Provisions, creating a small Fundamental Law 16 outside the Constitution. It also put an end to the ongoing debate about the independence of the Hungarian Central Bank by cancelling any possibility of merging the functions of its President with those of the Financial Supervisory Authority. The Second 17 and Third 18 amendments respectively introduced constitutional grounds for setting a registration condition for the exercise of voting rights - which was the object of strong criticism 19 - and modalities for the acquisition of agricultural land. The Fourth amendment to the Constitution introduces by far the most changes to the constitutional order, affecting the functioning of the Constitutional Court, the administration of the judiciary and the scope of certain fundamental rights. The main changes that have raised concern are presented below, in an attempt to set them before the background of ongoing reform in the country. II. Functioning of the Constitutional Court

2 2. Exclusion of any reference to prior decisions The Fourth amendment to the Constitution introduced a new provision according to which decisions of the Constitutional Court and their reasoning delivered prior to the entering into force of the new Constitution cannot be used for its interpretation. 20 As a result, the principles and interpretations developed by the Constitutional Court over the past twenty years no longer constitute a basis for future decisions. The Court is not prevented from coming to the same conclusions in future cases or from using the same reasonings as previously developed, but it is forced, should it wish to do so, to detail its argumentation in whole in a new decision instead of referring to its previous ones. While broadening the margin of interpretation of the Court, which is no longer bound by the case-law built on the basis of the previous Constitution, 21 this provision also creates great legal uncertainty with respect to applicable constitutional standards, since no continuity with the former practice of the Constitutional Court is ensured. Initially, the possibility for the Constitutional Court of referring to prior decisions had been questioned due to the statement contained in the Preamble of the new Constitution proclaiming the invalidity of the former Constitution of The Venice Commission, in its opinion on the new Constitution, considered that such a statement of political nature should not be understood as grounds for ignoring the rich case law of the Constitutional Court. 22 In addition, the Constitutional Court itself had interpreted this rule as allowing it to refer to arguments made in previous decisions as long as the constitutional provisions they were based on had remained similar. 23 The Fourth constitutional amendment breaks with this vision of continuity. The freedom of interpretation granted to the Constitutional Court is defended by the governing party as a guarantee of coherence, enabling new decisions to be made independently from considerations of the past. Opponents however point to the risk of arbitrariness if decisions are not embedded in a long-lasting constitutional practice. 24 Competence to review constitutional amendments The Constitution now reads that the Constitutional Court is competent to examine the procedural constitutionality of proposed amendments to the Fundamental Law, 25 while their substantial review is excluded from the scope of competence of the Court. The question whether the Constitutional Court is competent to review the Constitution, even though the Court s powers are derived from it, had not been entirely clarified under the former Constitution. Possibly due to the specific context of the parliamentary super-majority in Hungary and to the numerous amendments to the Constitution, the Constitutional Court had however recently granted itself the power to substantially examine such amendments. 26 The Fourth amendment to the Constitution does not allow such a jump, restricting the extension of the Court s competence to a procedural control of constitutional amendments. The exclusion of any substantial review of constitutional amendments is aimed at avoiding interference of the Constitutional Court in the exercise of the Parliament s constituent power. Competence in budgetary and tax matters

3 3. The latest constitutional amendment confirms the restriction to the competence of the Constitutional Court regarding the control of laws on budgetary and tax matters. 27 As long as the State debt exceeds half of the GDP 28, the constitutionality of such laws may only be reviewed with respect to specific fundamental rights, among which the right to life and human dignity and to freedom of thought, conscience and religion, but not, for example, the right to property. This provision, originally part of the Transitional Provisions, was struck down by the Constitutional Court in 2012 for lack of transitional nature, because it permanently excludes budgetary and tax laws adopted while the debt exceeded half the GDP from the control of the Court. 29 The latest constitutional amendment removes any ambiguity by integrating this rule into the permanent constitutional framework. Though the provision illustrates a laudable will to prioritize budgetary efficiency, it also creates a leveling between fundamental rights which, according to the Venice Commission, may impede their protection as a whole. 30 In addition, the Fourth amendment allows, for as long as the State debt exceeds half of the GDP, the establishment of a special tax aimed at covering the cost of potential fines which could be imposed on the Hungarian State by decision of the Constitutional Court or of the European Court of Justice. In other words, as it was pointed out by Vivian Reding, EU Commissioner for Justice and Fundamental Rights, in practice citizens would be penalized twice: once for not having had their rights under EU law upheld and a second time for having to pay for this." 31 Such a law, should it be adopted on the basis of the new constitutional provision, would also be excluded from the competence of the Constitutional Court. III. Administration of the judiciary Transfer of cases by the President of the National Judicial Office The Fourth amendment to the Constitution introduces a provision granting the President of the National Judicial Office (NJO) competence to transfer cases from the competent court to another court, in order to balance the case-load between courts and ensure the rendering of court decisions in reasonable time. 32 This rule, which was initially a Transitional Provision meant to apply until a balanced distribution of case-load between courts had been achieved, 33 was struck down by the Constitutional Court in 2012 because no definite time limit for the exercise of this competence was foreseen, making the provision lack the transitional purpose it was initially meant to have. 34 The provision is now integrated into the Constitution without any limitation of duration. The creation of the NJO in 2011 and the attribution of strong competences to its President came as a response to the need to establish an efficient and operational administration of justice. Though this goal is praiseworthy, the chosen model has raised the concern of the Venice Commission because it concentrates overwhelming powers in a single person. 35 In addition to his power to transfer cases, the President of the NJO can also put forward proposals for the appointment and relief of judges, and decide on their transfer. 36 Retirement of judges

4 4. The Fourth constitutional amendment does not directly affect the retirement age of judges, prosecutors and notaries, but a cardinal law regulating this issue has recently been enacted by Parliament 37 and provides for a gradual reduction of their retirement age (formerly set at 70 years) until it reaches the national retirement age (62 years). The implementation of a gradual lowering of the retirement age follows the ruling of the European Court of Justice which considered that the former system of abrupt forced early retirement of judges and prosecutors (in 2012) and notaries (by the end of 2014) constituted unjustified age discrimination, thus violating EU law. 38 The decision to spread the retirements over several years also appears necessary in order to minimize the direct influence of the President of the NJO on the appointment of new judges, which would gain in significance if many crucial positions in the judicial system were to be filled over a short period of time. 39 IV. Scope of fundamental rights General uncertainty due to absence of case-law basis The fact that the standards developed by the Constitutional Court in its past decisions may no longer be referred to in future decisions creates legal uncertainty regarding the extent of protection of the fundamental rights which had been defined and interpreted through case-law. The basic fundamental rights protected by the Constitution are stripped of the abundant details and clarifications brought by the Court. For example, a decision of the Court had set that the equal recognition of heterosexual and homosexual couples cohabitating without being married 40 could be derived from the general principle of equal treatment and the right to the protection of one s private life. It is also through a Court decision that for example the prohibition of discriminations had been defined, as the duty to treat all persons as equals without restriction to their right to human dignity, requiring that all rights and advantages be determined with respect and attention, equally taking into account the different personal interests of those concerned. 41 It remains to be seen whether the Constitutional Court will protect fundamental rights to the same extent as in the past. The case-law of the European Court of Human Rights and of the European Court of Justice, by which Hungary is bound, should offer guidance in this respect. Constitutional notion of the family Pursuant to the Fourth amendment to the Constitution, marriage is defined as the conjugal union of a man and a woman and marriage and the parent-child relationship are the basis of the family. 42 This traditional notion of the family was originally introduced in 2011 in the law on the Protection of Families, 43 but the provision was abolished by the Constitutional Court on the grounds that such a definition would exclude a number of family forms (partnerships where both members take care of each other s children, couples without children, single parents, same-sex unions ) from the protection due to families by the State. 44 The introduction of this notion of the family into the Constitution therefore raises concern as to the protection of non-traditional family structures at a constitutional level. Regarding in particular samesex unions, this constitutional amendment closes any possibility for the legislator to open marriage to same sex couples. Same-sex unions were recently authorized in Hungary by a law of following a decision of the Constitutional Court requiring a specific institution for homosexual unions, which did not duplicate the institution of marriage. 46

5 5. Freedom of the press - media regulation The Fourth amendment to the Constitution introduces a provision which expressly guarantees the free and equal access of all political parties to political advertising in the public media. 47 This principle of neutrality of public broadcasting had been set by case-law of the Constitutional Court under the previous Constitution, and its express integration into the new Constitution is to be welcomed as it ensures its protection despite the exclusion of any referral to previous decisions of the Constitutional Court. The provision as revised by the recent amendment also foresees that a cardinal law may restrict other forms of political campaign. Opponents to the recent reform fear that this will be used to enable the ban of political campaigning in the private media. 48 The Parliament had indeed previously adopted such a ban in the Election Procedure Act, 49 but the provision was struck down by the Constitutional Court at the beginning of this year on the grounds that such a rule would create a considerable restriction on political speech, especially since private media is the media reaching society to the widest extent. 50 Media regulation in Hungary has been an area of ongoing reform since controversial media laws were adopted in In particular, the political independence of the newly created Media and Infocommunications Authority was questioned and certain provisions regulating media content and conditioning the protection of journalistic sources were the object of strong criticism. 52 This led to a first set of reforms in 2011 and to a second set in 2012 after several provisions of these laws were struck down by the Constitutional Court. Use of public space - homelessness Pursuant to the latest constitutional amendment, the Constitution now foresees not only that the State shall strive to provide for decent housing conditions and access to public service for everyone, but also that it shall strive to guarantee housing for every homeless person. The amendment also adds that a decree may outlaw the use of certain public space for habitation in order to preserve the public order, safety and health, and cultural values. 53 This last sentence has been criticized as providing a constitutional basis for criminalizing homelessness. The criticism is based on the fact that a provision of the Petty Offence Act adopted in 2012, which was since abolished by decision of the Constitutional Court, 54 had set out that living on public premises constituted a petty offense punishable by fines or confinement. 55 In the light of the newly introduced protection of the homeless, the interpretation of the constitutional provision however seems aimed at maintaining control over certain public areas rather than at criminalizing homelessness as such. Churches - freedom of religion The Fourth constitutional amendment provides that certain conditions may be set by a cardinal law for the recognition of churches. 56 Such recognition grants religious organizations a favorable and protective legal status. This provision was initially part of the Transitional Provisions but was struck down by the Constitutional Court for lack of transitional nature, in a similar manner as the provisions on the competences of the Constitutional Court and of the President of the NJO (see above). 57

6 6. The integration of this provision into the permanent constitutional framework subsequently creates a constitutional basis for the already existing Hungarian Church Law, 58 which sets out criteria such as the requirement of existence for at least one hundred years internationally and twenty years in Hungary and of a certain degree of societal support. According to the Hungarian authorities, the regulation is aimed at guaranteeing the freedom of religion while reducing the number of registered churches operating in the country, some of which seem to have been registered for tax benefits rather than for conducting religious activities. 59 As a result of the adoption of this law, all formerly recognized churches (approx. 300) had to reapply for registration under the new law. The Venice Commission considers the Church law to provide a framework enabling the recognition of a relatively high number of churches in comparison to other European countries. 60 It however considers excessive the requirement of existence for a long period of time, and the recognition procedure to lack sufficient procedural guarantees, thus creating a risk of violation of the freedom of religion. 61 Higher education Where the new Constitution initially stated that the organization and financial management of institutions of higher education was to be regulated by law, the Fourth amendment introduced a modification placing their financial management under the supervision of the Government. 62 Though the independence of universities in the definition of content of research and education remains constitutionally protected, the abolishment of their financial autonomy 63 raises concern as to the reality of such independence. The Fourth amendment to the Constitution also foresees that receiving financial aid from the State for higher education may, by law, be set under the condition that the concerned students be employed in a Hungarian enterprise for a definite period of time after they finish their studies. 64 This provision subsequently constitutes a constitutional basis for the provision added in 2012 to the Act on Higher Education, according to which students whose tuition fees were covered by financial aid have to either work in Hungary for twice as long as they studied within the first twenty years after obtaining their degree (meaning working in Hungary for at least 10 years for students with a Master s Degree), or reimburse the full cost of their tuition fees. 65 This measure is considered by opponents to the recent amendment to disproportionately restrict the rights of students to choose their occupation freely, 66 but is defended by its proponents as a necessary means to ensure that public funds are used both to the benefit of individual students and of the Hungarian community as a whole. 67 V. Outlook and conclusion The Fourth constitutional amendment to the Hungarian Constitution introduces significant reforms into the constitutional order. These reforms have been carried out by the governing party with the support of an overwhelming parliamentary majority, and thus enjoy a high degree of legitimacy. These in-depth changes were however adopted at an extremely rapid pace through the enactment of a large number of laws and constitutional amendments, making it difficult for the parliamentary opposition, civil society groups, legal professionals or ordinary citizens to express their opinion and contribute to an open debate. 68 This manner in which the reform was carried out raises important concern, especially considering that the Constitutional Court s margin of action to control legal developments is significantly restricted.

7 7. First, the integration into the Constitution of Transitional Provisions, which had previously been abolished on procedural grounds by the Constitutional Court, excludes any possible control of their content in the future. The Constitutional Court is indeed not competent to substantially review constitutional amendments. In addition, a number of provisions were newly introduced into the Constitution in order to subsequently provide a constitutional basis for already existing laws. As a consequence, it is highly unlikely that such laws could be deemed unconstitutional by the Constitutional Court in case of expost constitutional review. Finally, the protection of fundamental rights in the future is rendered uncertain by the abolishment of the standards developed through the case-law of the Constitutional Court, together with the modification of the scope of a number of these rights. This is accentuated by the measures restricting the competence of the Constitutional Court in certain matters and by a feared decrease in independence of the judiciary. It remains to be seen if the decried risks occur as a result of this constitutional amendment. In the meantime, a political resolution is to be adopted in June 2013 by the European Parliament on the situation of fundamental rights in Hungary and the opinion of the Venice Commission on the latest constitutional amendments is expected around the same time. 69 If violations of EU law and of the European Convention of Human Rights were to be confirmed, the European Commission has indicated that it would take necessary steps in order to start infringement procedures where relevant. Only the future will tell with certainty whether the renovation of the Hungarian constitutional order brings progress or if it undermines democracy. 1 Fourth Amendment to the Fundamental law of Hungary, adopted on 11 March Hungarian Helsinki Committee/Hungarian Civil Liberties Union/Éötvös Károly Policy Institute - Main concerns regarding 3 European Commission press release of 12 April 2013: President Barroso voiced the Commission s serious concerns over the compatibility of the Fourth Amendment to the Hungarian Fundamental Law with EU legislation and with the principle of the rule of law. ; Victoria Nuland, US State Department spokesperson, expressed the concern of the US government that Hungary s constitutional amendments could threaten the principles of institutional independence and check s and balances that are the hallmark of democratic governance, 7 March The Fundamental Law of Hungary was adopted by Parliament on 18 April 2011 and entered into force on 1 January The European Commission launched infringement procedures IP/12/24, IP/12/222 and IP/12/395 against Hungary. 6 Formally known as the European Commission for Democracy through Law, it issued several opinions on the new Hungarian constitutional order, in particular opinion CDL-AD(2011)016 on the new Hungarian Constitution. 7 The former Hungarian Constitution had been in force since the creation of the communist People s Republic of Hungary in Its content underwent major reform in 1989 to transform Hungary into a liberal democratic state, but the changes took the form of amendments and no new Fundamental Law was formally adopted. 8 The new Constitution reflects the importance attached to balanced and sustainable budget management in article N(1). 9 Zita Gurmai, Hungarian politician and Member of the European Parliament for the Hungarian Socialist Party, debate on the Hungarian Constitution organized by the European University Institute in Florence, 2 March 2012: Amicus Brief for the Venice Commission, edited by: Prof. Gábor Halmai, Eötvös Loránd University / Prof. Kim Lane Scheppele, Princeton University, Feb Amicus Brief for the Venice Commission, edited by: Prof. Gábor Halmai, Eötvös Loránd University and Prof. Kim Lane Scheppele, Princeton University, Feb A 2/3 majority of all members of parliament is necessary to modify the Constitution according to article 24(3) of the prior Constitution of 1949 as amended in Cardinal laws require a 2/3 majority of present members of Parliament to be adopted, article T(4) of the new Constitution. 13 Act on the Transitional Provisions to the Fundamental Law of Hungary of 31 December 2011, entered into force on 1 January 2012, at the same time as the new Constitution. 14 A 2/3 majority of all members of parliament is necessary to modify the Constitution according to article S of the new Constitution of 2012.

8 8. 15 First Amendment to the Fundamental law of Hungary adopted on 18 June Expression used by the Constitutional Court to qualify the transitional Provisions in Decision 45/ Second Amendment to the Fundamental law of Hungary, adopted on 9 November Third Amendment to the Fundamental law of Hungary, adopted on 21 December The draft Electoral Law based on this constitutional provision set out that voters must register at least 2 weeks prior to elections. This is considered to favor political parties which have an active electorate. The law was struck down by the Constitutional Court before its enactment. 20 Closing provisions of the Constitution as modified by art. 19 of the Fourth Amendment to the Fundamental Law of Hungary. 21 Tibor Navracsics, Minister of Public Administration and Justice, in his letter to Thorbjorn Jagland, Secretary General of the Council of Europe, 7 March Opinion CDL-AD(2011)016 of the Venice Commission, 35, Decision 22/2012 of the Constitutional Court. 24 Hungarian Helsinki Committee/Hungarian Civil Liberties Union/Éötvös Károly Policy Institute - Main concerns regarding 25 Art. 24(5) of the Constitution as modified by art. 12 of the Fourth Amendment to the Fundamental Law of Hungary. 26 Decision 45/2012 of the Constitutional Court. 27 Art. 37(5) of the Constitution as modified by art. 17 of the Fourth Amendment to the Fundamental Law of Hungary. 28 Gross Domestic Product. 29 Decision 45/2012 of the Constitutional Court. 30 According to the Venice Commission in its opinion CDL-AD(2011)016, 98, 99, this provision goes against the aim of enhancing the protection of fundamental rights. 31 Intervention of Vivian Reding before the EU Parliament, Strasbourg plenary session on 17 April Art. 27(4) of the Constitution as modified by art. 14 of the Fourth Amendment to the Fundamental Law of Hungary. 33 Art. 11(3) of the Transitional Provisions to the Constitution. 34 Decision 45/2012 of the Constitutional Court. 35 Venice Commission opinion CDL-AD(2012)001, Section 76 of Act CLXI of 2011 on the Orgnisation and Administration of Courts. 37 Act XX of 2013 on the Modification of the Retirement Age of Members of the Judiciary. 38 European Court of Justice case C-286/ Venice Commission opinion CDL-AD(2012)001, 36 underlines the particular context of judicial appointment considering early retirement measures and powers of the President of the NJO. 40 Decision 14/1995 of the Hungarian Constitutional Court on couples who cohabit without being married, de facto concubinage, set the principle of equal recognition of heterosexual and homosexual couples. set the principle of equal recognition of same-sex civil unions. 41 Decision 1/1990 of the Constitutional Court. 42 Art. L(1) of the Constitution as modified by art. 1 of the Fourth Amendment to the Fundamental Law of Hungary. 43 Act CCXI of 2011 on the Protection of Families. 44 Decision 43/2012 of the Hungarian Constitutional Court. 45 Act XXIX of 2009 on same-sex registered civil unions. 46 Decision 154/2008 of the Constitutional Court. 47 Art.IX(3) of the Constitution as modified by art. 5 of the Fourth Amendment to the Fundamental Law of Hungary. 48 Hungarian Helsinki Committee/Hungarian Civil Liberties Union/Éötvös Károly Policy Institute - Main concerns regarding 49 Art. 151(1) of draft law T/8405 draft law, which was reviewed by the Constitutional Court before its enactment. 50 Decision 1/2013 of the Hungarian Constitutional Court. 51 Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules of Media Content and Act CLXXXV of 2010 on Media Services and Mass Media. 52 Hungarian Helsinki Committee/Hungarian Civil Liberties Union/Éötvös Károly Policy Institute - Media Regulation in Hungary, September Art.XXII of the Constitution as modified by art. 8 of the Fourth Amendment to the Fundamental Law of Hungary. 54 Decision 38/2012 of the Constitutional Court. 55 article and reference of the petty offense act of Art.VII of the Constitution as modified by art. 4 of the Fourth Amendment to the Fundamental Law of Hungary. 57 Decision 45/2012 of the Constitutional Court. 58 Act CCVI of 2011 on the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities. 59 Venice Commission Opinion CDL-AD(2012)004, 13 retracing the position of the Hungarian authorities. 60 Venice Commission Opinion CDL-AD(2012)004, Venice Commission Opinion CDL-AD(2012)004, 64 and Art.X(3) of the Constitution as modified by art. 6 of the Fourth Amendment to the Fundamental Law of Hungary.

9 9. 63 Hungarian Helsinki Committee/Hungarian Civil Liberties Union/Éötvös Károly Policy Institute - Main concerns regarding 64 Art.XI(3) of the Constitution as modified by art. 7 of the Fourth Amendment to the Fundamental Law of Hungary. 65 Art.48/A/b) of Act CCIV of 2011 on National Higher Education. 66 Hungarian Helsinki Committee/Hungarian Civil Liberties Union/Éötvös Károly Policy Institute - Main concerns regarding 67 Tibor Navracsics, Minister of Public Administration and Justice, in his letter to Thorbjorn Jagland, Secretary General of the Council of Europe, 7 March Amicus Brief for the Venice Commission, edited by: Prof. Gábor Halmai, Eötvös Loránd University and Prof. Kim Lane Scheppele, Princeton University, Feb. 2012, p European Commission press release of 12 April 2013.