Dr. Tamás Sulyok is the current President of the Hungarian Constitutional Court. In an interview which is certainly the highlight of this issue, he was kind enough to answer Lawyr.it’s questions about his career path, his role as President of the Court, the cases the Court is called to adjudicate upon today, as well as its relationship with other European Courts, the future of the Constitutional Court’s jurisdiction, and much more. In the next pages, you will have the opportunity to read a detailed presentation of the Constitutional Court’s working processes from the perspective of a prominent Judge and insider.
Lawyr.it: How would you describe your career that led you to the Constitutional Court? What are the major differences compared to your former professional practice and what are the experiences that you could use as a Judge and as President of the Court?
TS: My curriculum vitae spannes different periods of Hungarian history. I was born in 1956 and grew up under a communist dictatorship. I witnessed the political changes of 1989-1990 which was a euphoric period for the Hungarian intellectuals. After these times I also experienced the world of the free-market capitalism that opened the gates for a completely new, exciting world. My interest in civil and public law was significantly shaped by my influential professors at the university, e.g. Elemér Pólay, István Kovács and Béla Kemenes, who were able to capture the attention of the students with their charismatic personality and incredible professional knowledge. At this time, my devotion to public law primarily manifested in analysing philosophical – legal – questions. That is to say, I was a member of the Students’ Association of Philosophy and I even managed to prepare a prize-winning essay for the National Conference of Students’ Associations. Due to the fact that I graduated from the university with the grade of summa cum laude, I found myself in a favourable situation, since I was the only candidate who managed to qualify for the position as a law clerk at the Csongrád County Court. It did not take long to me though to realise that I would never be much interested in criminal law. Thus, my orientation towards civil law continued. After passing the bar exams I had to face a dilemma since there was an opportunity to get appointed Judge in the Criminal Division only if I had joined the Communist party. However, I made it clear that I did not want to be a Judge. Thus, I was the first law clerk to leave the court after 1945 and at the same time I also left Csongrád County as the President of the court strongly “suggested” to do so. I became a legal counsel at a farming company which was the scene of flourishing economy and modern technology at that time and I had the chance to gain a wide range of knowledge from agricultural issues to matters of tourism. After it became possible for legal counsels to establish law firms, which made it possible to deal with legal issues of economic nature, two of my colleagues and I were among the first to set up such an association. After the political changes, I started practising as a lawyer in 1990, and I mostly dealt with business and corporate matters, and besides, with certain areas of administrative law. In 2000, I was asked to teach constitutional law at the University of Szeged, which I happily accepted, but I also went on with my legal practice. At the same time, I happened to get elected as an honorary consul for Austria and I remained in this position until my election as Judge to the Constitutional Court in 2014. It was a varied and interesting responsibility to represent a State concerning cultural and economic issues and I have to admit that I am sad a little bit that this position is considered to be incompatible with my duties as member of the Constitutional Court. Naturally, I also had to give up my legal practice when I was elected. For a practising lawyer clients always come first, and I had been representing many of them for decades. Usually, when I agreed on being the lawyer of a client, my legal work included handling all of his or her legal problems from marriage through corporate issues to inheritance. It is fair to say that in some sense, a lawyer shall represent “the whole person”. In the first few months after I had started working at the Constitutional Court, I often woke up in the middle of the night feeling worried that my clients would not be calling me, and I would probably starve to death. Naturally, I instantly calmed down when I realised that this was not the case at all, but still, I should like to admit that sometimes I miss the personal connection with my clients. In other words, being a lawyer was not only a challenging profession, but it also meant gaining valuable personal relationships. I had to hand over my former clients to my other colleagues, which was certainly a loss from an individual aspect. Working as a constitutional Judge is different by the nature of the position. Unlike being a lawyer, it is not about providing direct help to “everyday people”. Nonetheless, such a task is the very essence and one of the key functions of the constitutional complaints. [1] In other words, the competences of constitutional complaints of the Court are for helping the individuals to solve their problems when they are facing the labyrinth of bureaucracy and legal procedures, especially when their fundamental rights have been violated. The recent jurisdiction of the Court aims at bringing back what has been lost with the ever-increasing number and complexity of legal norms. So to say, that is the reason why the law actually exists: to protect the people from the arbitrariness and autocracy of the authorities. In this field I could make use of several elements of my former professional activities. As a practising lawyer you shall understand that besides professional knowledge, a learning-process plays an immensely important role in the legal work. You may also realise that you could often achieve more by seeking compromises, as well as by preparing reasonable, well-established proposals based on a balanced representation of mutual interests. This is an important guideline for me at the Constitutional Court where decision-making requires the support of the majority of the members. A single constitutional judge is not entitled to decide on the merits on his own, a decision requires at least eight votes in favour out of fifteen Judges.
[1] Constitutional complaints may be submitted at the Constitutional Court mainly when a fundamental right of the petitioner, guaranteed by the Fundamental Law, had been violated by a judicial decision. Exceptionally, a constitutional complaint procedure may also be initiated when the application of a legal provision is contrary to the Fundamental Law, or when such a legal provision becomes effective without a judicial decision and as a result, the petitioner’s fundamental rights are violated directly. The constitutional complaint therefore is not a claim for classical judicial review, and the Constitutional Court is not a forum for legal remedy for the concrete case. Another important rule is that the Constitutional Court only finds the complaint admissible if the conflict with the Fundamental Law significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance. (Source: https://hunconcourt.hu/competences/)
Lawyr.it: What are your views on the presidency, what kind of role does the President have in the formation of the decisions?
TS: The President represents the Court, he exercises the employer’s rights over the personnel of the Court - except for the Judges. In short, he has a wide range of duties regarding the administration of the Court as well, which implies that he has to work somewhat more. With regards to the functioning of the Court, he is primus inter pares (first among equals) among the fifteen Judges, with the same rights and options. Similar to my colleagues, I shall be a reporter Judge of given cases and in general my vote has the same weight as of the other members. However, there is an exception from this rule when there is a tie, which only occurs when one of the Judges is not present on the voting. It is interesting, however, that the President of the Austrian Constitutional Court does not possess a right to vote generally, only on those occasions when the votes are evenly divided. In my view, the responsibility of the President is to support and strengthen the quality of the decisions of the majority. In order to achieve this objective, it may also happen that I alter / shape my conception in a way that it could still fit into the majority’s opinion. It is also possible that I make an attempt to influence the majority in a certain direction. As a last resort, I am entitled to write a dissenting opinion, since I believe that the role of the President is to contribute to the formation of the majority decision. This is what I am basically striving for.
Lawyr.it: It is a re-occurring matter of debate to what extent the considerations and arguments of strictly constitutional legal nature shall be attributed significance, and what role the specific branches of law should play in the decision-making of the Court. What is your opinion in this regard; could you illustrate it with an example?
TS: When I describe the role and function of constitutional law to my students at the university, I usually state that it is similar to the “cuckoo nestling”: the egg of constitutional law is dropped into the nest of specific legal branch(es) and when the squealer hatches, it taps the other birds’ heads, trying to get its own will, logic and system through. The objective of the so-called “genuine constitutional complaint” (which was first introduced by the German Grundgesetz) is exactly to examine the judicial decisions from the aspect of the violation of fundamental individual rights. Gaining information from the sphere of specific legal fields is therefore a starting point. The consideration of these findings enables us to gain deeper insight into the background of the case. The situation is somewhat easier though when it comes to the ex post review of conformity with the Fundamental Law, i.e. posterior norm control. Under this competence we have to evaluate an abstract constitutional matter [2]. Still, it happens regularly that constitutional legal messages from decade-old files need to be discovered and interpreted, which makes our job a bit similar to the one of the gold garbler, who stands by the river, shakes the sieve and waits for the nugget (the constitutional issue and message in this case) to be found. Although there is an undeniable intersection of the specific legal branches and the constitutional legal sphere, we strive to avoid the modification of the judicial decision in terms of specific legal questions. This happens on those occasions only when an actual problem, relevant from the perspective of constitutional law is raised. It is an interesting issue how this can be carried out in practice, e.g. when a civil court decides on the rights relating to the personality or a criminal court delivers a judgment in a case of defamation or slender. It is probable that one or two from about a thousand judicial decisions become relevant, based on the respect for fundamental individual rights, like the right to the freedom of expression in a procedure about the rights relating to the personality. This may occur in less evident situations as well, for instance, when a fine is imposed on a news portal within the framework of monetary supervision, because its report led to the discontinuation of trading with certain shares and resulted in an anomaly at the stock market. In this exact case, the court had failed to acknowledge that the freedom of the press was significantly influenced and it handled the case merely as an administrative legal issue. This was the first occasion for the Constitutional Court to express that all courts are obliged to take into account the relevance of fundamental rights in the concrete cases. The lack of such an investigation means that the Constitutional Court does not have to examine any other aspects; it is a satisfactory basis for the annulment of the decision. After that the judge makes a new decision on which the Constitutional Court has no influence anymore. If we examine the shares of the specific branches of the law in the cases referred to the Court, it can be inferred that in 2018 civil law made up 42%, administrative law 24% and criminal law 18% of our procedures. Besides, 11% was brought on labour law and on electoral matters as of 5%. Even though the manifestation of the specific fields of law is clear, it is not relevant from the perspective of the Constitutional Court’s jurisdiction but it is rather a secondary, orienting element for us.
Constitutional complaints in 2018 according to the branches of law
The table indicates that the consideration of the constitutional aspects must pertain to the legal system as a whole, regardless of the specific branches of law, since the Constitutional Court examines cases of civil, administrative, criminal or labour law, as well as matters related to elections within the framework of the constitutional complaint procedures.
[2] The rules regarding the posterior norm control were significantly changed by the provisions of the Fundamental Law. Until the end of 2011 anyone, without any legal interest had been entitled to submit a petition for seeking a constitutional review of a legal norm. According to the new rules that entered into force on 1st January of 2012 such a proceeding can be initiated only by the Government, one-quarter of the Members of Parliament, the Commissioner for Fundamental Rights (ombudsman), the president of the Curia and by the General Prosecutor. If, upon such a petition, the challenged law is found to be contrary to the Fundamental Law, the Court annuls it. Generally, in such a case, the annulled law remains in force until the publishing of the Court’s decision and the annulment does not concern the already existing legal bounds. In exceptional cases, the Court may order the retroactive or the pro futuro annulment of the unconstitutional regulation, for the sake of legal certainty. (Source: https://hunconcourt.hu/competences/)
Lawyr.it: How would you evaluate the current role of the Constitutional Court’s jurisdiction - especially in the sphere of maintaining and strengthening the rule of law and specific constitutional values?
TS: The Constitutional Court has a key role in the preservation and protection of the rule of law, this is actually the reason why the so-called “Kelsen-type” constitutional court jurisdiction had been established. Naturally, the concept of the rule of law had a different meaning at that time. The other related and core function of the Court is the protection of fundamental human rights. This forms a major part of our job, since the rule of law is also to be defended through the protection of the rights of the individuals. Another interesting task - which is a characteristic of the constitutional courts in the Member States of the European Union - is that the courts are given the opportunity to get engaged in the cross-country dialogue. This gains specific significance, because various legal regimes exist parallel within the European Union: the EU law which becomes internal law, e.g. in the case of directives, and the laws of the Member States that represent the roots of European law. Alongside their national laws, the states set up a unique legal system which lacks a state as a background. This was also expressed by the Court of Justice of the European Union. It is necessary to highlight that there is no hierarchy among these systems. This regime is maintained by the states, it is the parallel nature and the lack of hierarchy that demand discussion. In my view, this is certainly a positive tendency which needs to manifest itself in the dialogue between the Court of Justice of the EU and the constitutional courts of the Member States, as well as among the constitutional courts themselves. This process enriches both the law of the EU and the Member States and although the end of it cannot be seen clearly at this moment, it is a challenging and exciting mission to shape and observe this progress.
Lawyr.it: What kind of international relations does the Constitutional Court have, what is the role of the President in the establishment and maintenance of these?
TS: The Hungarian Constitutional Court has bilateral as well as multilateral relations. We traditionally have a firm and well-functioning relationship with the Austrian Constitutional Court. We organise meetings on a yearly basis in Transdanubia, Styria or Burgenland. The former President of the Austrian Court, Mr Holzinger has been awarded with the highest decoration of the State by the President of the Republic. It was solemnly given to him within the framework of a bilateral conference with the Minister of Justice. I also attribute a high relevance to the formation of bilateral relations with the German Federal Constitutional Court. One of the main reasons for this is that in 2012 the Hungarian Court was vested with the power, which originates from the German Court: to decide in the cases of Urteilverfassungsbeschwerde, the constitutional complaints against judicial decisions [3]. Thereby, the Court examines the interference of the judicial interpretation of the law with fundamental rights and we consider the German Court as an example, since its knowledge and experience are forty-five years ahead of ours in this field. We have also received an invitation to a bilateral meeting next year. Having said that, the President of the German Court, Mr Andreas Voßkuhle - as well as Mr Koen Lenaerts, the President of the Court of Justice of the European Union - accepted to hold a keynote speech on a conference that is to be organised by the Hungarian Court in March of 2019. I attribute specific significance to this in light of the judicial dialogue across Europe. I have often expressed my concern - also at the World Conference on Constitutional Justice - that the mother tongue of Hans Kelsen gradually loses its dominance in constitutional courts and is frequently replaced by French and Spanish, even though the German language is genuinely appropriate for discussing and analysing constitutional matters. It creates a complicated situation, since it is not possible to express certain legal concepts and terminology in a substantively accurate manner in these languages. As for English, the remarkable dissenting features of the common law system compared to the continental legal regime(s) sometimes make it improper for this purpose. I hope and trust that the future would bring a positive line of development in this regard. We maintain close connections with the constitutional courts of the neighbouring States. We tend to organise yearly gatherings with the Romanian Constitutional Court and President Dorneanu also places great emphasis on the maintenance of these. The Hungarian Court took a side with the Romanian Court on international forums when the President of the Republic of Romania claimed that he was not willing to implement the decision of the Court. Although the Hungarian Court was the only one which declared that every Constitutional Court resolution - regardless of their content - is executable, I consider this approach truly important. We also cooperate with the Slovakian and the Czech Constitutional Courts. For example, we are in the preparatory phase of a conference in Brno. Besides, the Czechs will also organise the Conference of European Constitutional Courts in Prague. I could also mention several other courts, for instance, the Serbian, Croatian, Slovenian or the Polish, as well as the Belgian or the Dutch, but we also preserve close connections to the Swiss Supreme Court. It is fair to say that I shall consider the Swiss President, Mr Ulrich Meyer as a friend of mine. Our relations with the Venice Commission bear specific relevance. I participated in a plenary session of the Commission last summer on which I introduced the decisions of the Hungarian Court related to the working of the Commission. The European Court of Human Rights is another key partner and a bilateral meeting will take place next year with the contribution of former president of the Constitutional Court, Péter Paczolay. Last but not least, the intensive cooperation with the accredited diplomatic bodies in Budapest is also remarkable and it is worth being mentioned. As President I regularly hold informative meetings on which most of the ambassadors are present, which leads to the fact that they can also turn to us with trust and this contributes to the direct communication and discussion.
[3] After the new Act on the Constitutional Court entered into force, constitutional complaints may be submitted not only against the legal regulations, but also against concrete judicial decisions. The person or organisation affected in concrete cases may turn to the Constitutional Court against the judicial decision that was contrary to the Fundamental Law if the decision made regarding the merits of the case or other decision terminating the judicial proceedings violates their rights enshrined in the Fundamental Law. It is also required that possibilities for legal remedy have already been exhausted by the petitioner or no possibility for legal remedy is available for him or her. The subject of the examination is the judicial decision itself and not the legal regulations. When the Court establishes that the judicial decision is contrary to the Fundamental Law, the Court annuls the decision. (Source: https://hunconcourt.hu/competences/)
Lawyr.it: How would you describe the role of the case law of the European Court of Human Rights in the jurisdiction of the Constitutional Court in comparison to former tendencies and how significant role should it play in your opinion?
TS: The judicial dialogue also plays an outstanding role in terms of the European Court of Human Rights. The human rights protection system formed on the basis of the European Convention on Human Rights under the aegis of the Council of Europe is a regime of immense importance. States Parties may decide in what way and on what level they wish to carry out its integration into their national constitutional sphere. For instance, the Austrian and the Slovenian lawmaker made the choice to acknowledge the rules of the Convention - and thus, the case law of the ECtHR - on a constitutional level. The Hungarian approach is different: to place the relevant norms on the stage of laws, on a degree lower than the constitutional protection. This does not mean that there would be a difference in the measuring on several occasions, however, there are some cases of differentiation. As an example, the Hungarian Constitutional Court could only provide and ensure the protection of purchased property under the right to property. In contrast, the practice of the ECtHR places the peaceful enjoyment of benefits and possessions into focus in the sphere of the same right. This implies that the Hungarian Court will not understand the loss of a concession or a licence to a given activity under the scope of the protection of property, but they could only be taken into account in the field of the right to enterprise. The approach towards the decisions of the ECtHR is the easiest when our measures are similar or exactly the same as the ECtHR’s. According to one of our recently conducted researches - from 721 references to foreign courts’ decisions between 1998-2008 altogether - the Hungarian Court cited the case law of the ECtHR in 65 resolutions (9% of the relevant cases). It is interesting that this number increased to 73 to this day since 2012 when the Fundamental Law entered into force. A core reason for this phenomenon is that the abstract posterior norm control - that played a key role in the functioning of the Court until 2012 - did not require the references of the case law to a vast extent. These days the Constitutional Court primarily carries out case-law jurisdiction which demands an increased presence of ECtHR practice in the resolutions.
Lawyr.it: What is the proportion of the types of cases in the Constitutional Court’s jurisdiction? To what extent are the cases rejected?
TS: It may be observed that between 2012-2018 the constitutional complaints formed 93% of the cases, judicial initiatives for norm control in concrete cases 6% [4] and only 1% was represented by the posterior norm control, the preliminary norm control [5] and by other types of petitions. The data from 2018 are quite similar, the proportion of judicial initiatives has risen to 8% and the constitutional complaints formed 91%. The reason for this is that the Fundamental Law has placed emphasis on the individual protection of fundamental rights, which has two dominant understandings. One of them is that initiating a posterior norm control now has three ways: (i) the judicial initiative by any judge on any level of the institutional hierarchy if he or she believes that the regulation to be applied is contrary to the Fundamental Law, (ii) the constitutional complaint aimed at norm control when the petitioner argues that the law which had been applied by the court in the binding judgment violated the Fundamental Law and (iii) the “direct” constitutional complaint in which the petitioner claims that a rule - without a judicial decision or an intervention by the authorities - violated his or her fundamental rights directly. Therefore, the range of the concrete posterior norm control is comparatively wide, whereas the right to initiate abstract posterior norm control has been limited as I mentioned before. The role of this power, which had previously been a main sphere of the Constitutional Court’s jurisdiction, has largely been replaced by the concrete posterior norm control and the strongest means of the individual protection of fundamental rights: the constitutional complaint against judicial decisions.
Petitions arriving to the Constitutional Court according to competences
The Constitutional Court’s procedure consists of two phases: first, the Secretary General examines the petitions based on formal and substantive requirements prescribed by the Act on the Constitutional Court. Then comes the judicial analysis and the discussion on the merits of the case. As a significant percentage of the petitions do not fulfil the prior legal requisites, only about 30-40% of the cases reach the judicial phase.
Considering the cases assigned to the Judges it may be inferred that there is a similar ratio in matters which are suitable for being substantially decided by the Court.
In the present year:
Decisions by decision-making organs
Rejections by the General Secretariat
The graph depicts that approximately 65% of the complaints prove to be inadmissible in the phase of the examination by the General Secretariat.
This tendency was characteristic in the past three years as well:
Concluded cases / decisions in the merits in the past three years (2015-2018)
Decisions according to content (2012-2018)
[4] In case of posterior norm control the Constitutional Court performs an abstract norm control, and the object of the examination is the norm itself. The decision usually does not affect the concrete case which was the base of the petition. The situation is different if a judge, in the course of the adjudication of a concrete case in progress, is obliged to apply a legal regulation that he or she perceives to be contrary to the Fundamental Law, or which has already been declared to be contrary to the Fundamental Law by the Constitutional Court. In this case the judge shall suspend the judicial proceeding and submit a petition to the Constitutional Court stating that the legal regulation or a provision thereof is contrary to the Fundamental Law and for the exclusion of the application of the legal regulation contrary to the Fundamental Law. The Constitutional Court may establish that the legal regulation or a provision thereof is contrary to the Fundamental Law and may exclude the application thereof in the concrete case or even with a general scope. (Source: https://hunconcourt.hu/competences/)
[5] The ex ante review of conformity with the Fundamental Law, i.e. preliminary norm control, is based on a petition containing an explicit request submitted by an authorised person (the Parliament or the President of the Republic). The Constitutional Court examines the conformity of the adopted but not yet promulgated provisions with the Fundamental Law. This competence of the Court extends to the preliminary review of the conformity of certain provisions of international treaties with the Fundamental Law. (Source: https://hunconcourt.hu/competences/)
Lawyr.it: In comparison to other States, how does the percentage of rejections look like in the practice of the Hungarian Constitutional Court, to what extent are the cases accepted for consideration and what could be the reason(s) for possible differences?
TS: Examining the statistics, it is fair to say that more than 70% of the petitions referred to the Court cannot be accepted for consideration of the merits of the case at all, they need to be rejected immediately, and only 500-600 cases are examined by the Court from about 2000 cases per year. In 2018, rejections on formal grounds amounted to 76%, while decisions on the merits were 24%. By comparison, only 2.3% of the constitutional complaints were “successful” at the German Constitutional Court last year. Besides, the Croatian, Slovenian and Czech Courts annul hundred(s) of judicial decisions per year, whereas the Hungarian Court’s statistic on annulments is around 10-15 cases, which may imply that there are no systematic issues that could justify such excessive interventions.
The chart shows the data from 2018. Approximately 24% of the cases have been concluded with a decision on the merit or rejection on the merit and 76% of the claims have been rejected on formal grounds. Rejection on the merit can take place when the Court concludes that the given legal norm or judicial decision is in accordance with the Fundamental Law. The Court also has the power of annulment, to declare a ban on application or legislative omission. This happened in 6% of the cases.
Lawyr.it: What are your views on the future of Constitutional Court jurisdiction in light of the decreased role of the preliminary and posterior norm control and the increased proportion of constitutional complaints?
TS: In my view, constitutional courts would have a significant role both at the level of the European Union and specifically at the national level. It has already been expressed in the 1990s that the rule of law is a reality and an objective at the same time, thus it can always be improved, and the system of the protection of fundamental rights shall also be constantly developed. The discussions between the courts and with the Court of Justice of the European Union also bear specific relevance as they contribute to the enrichment of the national legal regimes. The Constitutional Court always strives for the formulation of a more advanced legal dogmatic and the German Constitutional Court, as well as other ones the powers of which are similar to those of the Hungarian Court, serve as important examples. The increasing precision of the dogmatic of constitutional law provides the maintenance and strengthening of the trust of the community towards the Court. As the Constitutional Court does not have the executive power to ensure the realisation of its decisions, their acceptance and appearance in the practice is largely dependent on a vulnerable social consensus. In lack of executable resolutions, our decisions would only be implemented if the subjects can trust the Court. In my opinion, we are on the right path in this regard and all the constitutional courts in Central-Eastern-Europe make remarkable efforts to reach public confidence through resolutions of ever-increasing quality. I shall find this as the main aim of the courts, especially in those states where the institution of dissenting opinion exists. It is undeniable that a Judge of the Constitutional Court may only be genuinely independent if he or she has the right to express such an opinion. However, this also sets a higher standard and requirement for the majority decisions: their persuasive power must be increased gradually to endure the necessarily erosive effect of dissenting opinions. This is similar to a pile of hay being hung in front of the mule: it may never be reached, it is motivating, though.
The constant increase in the number of constitutional complaints
Within this sphere there is also a constant rise of the complaints against judicial decisions.
Lawyr.it: How do you see the realisation of the declarations and decisions of the Constitutional Court in the legal practice? Have there been cases that turned out to be specifically problematic from this aspect?
TS: The fact that the Constitutional Court has been vested with the power of annulling binding judicial decisions, even the decisions of the Curia, has unavoidably created an opportunity for a debate between the ordinary courts and the Constitutional Court. The judges of the ordinary courts often refer to the Constitutional Court Judges as “generalists”, while Constitutional Court Judges may find the ordinary court judges “specialists”. I don’t think that this approach is correct, as we have completely different spheres of influence and jurisdiction. In my view, the Hungarian law-maker properly settled the Constitutional Court’s supervision as of ultima ratio character. Therefore, the power of annulling judicial decisions does not violate the judicial independence. Technically, we have a right of cassation and the Curia bears the competence for further procedural steps to be taken - based on the resolutions - in the judicial system. This is especially important, since the Constitutional Court may never take over the function of the ordinary judicial organs, it even has to avoid the impression thereof. The Constitutional Court annuls the judgment and the case regularly starts over at the level of the ordinary court(s). After that we make an attempt to figure out how these cases were concluded and - based on the practice of the last five-six years - completely different paths can be witnessed when it comes to the reactions to and realisation of our resolutions. Probably the most interesting option is when the Curia widens the scope of our decisions for which the prior legal interpretation within a specific branch of law had not given opportunity. For instance, in case of a fine which resulted from draining, the Constitutional Court declared that if the authority misses the deadline for imposing a penalty for environmental protection, this means the violation of the right to fair proceedings in itself. Thus, a procedure in which the authority does not have to keep the regulations, while the polluter is fined for the breach of the law, and could be fined regardless of the deadline, cannot be fair. The Constitutional Court held that neither the fairness of the procedure, nor the requirement of equality before the law made the breach possible for the authorities. The Curia agreed with this approach and extended its scope to all cases of administrative law, among others, to tax matters. It is significant that the ordinary courts have the right to interpret our resolutions in a broader manner and if we can convince them of their correctness, they are in fact doing so. Another, a little more extreme situation is when the decisions of the Constitutional Court pertain to a firm and long-established legal dogmatic. Naturally, the integration of the differing principles and findings into the legal system proves to be more complicated, for example, when the courts should re-interpret a decade-long legal practice established in proceedings about the rights relating to the personality. According to the interpretation of the Constitutional Court, this practice may violate concrete fundamental rights, such as the right to the freedom of expression. It happened that the Court had to formulate the same decision on different occasions to initiate its acceptance in the legal practice. In these cases, it is understandable that there is a more confrontative attitude and slow acceptance. However, in order to defend fundamental individual rights, we have no other choice but making certain dogmatic changes. Evidently, there is a third large sphere, when the courts simply accept our decisions and where they act accordingly without broadening their scope. This is what happens in the vast majority of the instances.
Lawyr.it: How would you evaluate the limitation of the powers of the Court in terms of the economic matters based on which the Court may only examine such issues in case of a violation of certain fundamental rights?
TS: I take the view that a complex, differentiated approach shall be applied in this regard. It is important to examine the reasons in the background. In order to avoid the increase of the state debts, the lawmaker wanted to have a moratorium in matters of the budget in terms of the decisions of the Constitutional Court. When the map of the “new Europe” was drawn in Yalta and Hungary fell under Soviet occupation it was foreseeable that fifty years of communism would not bring about economic flourishment and a significant part of our debts stem from this period. The other aspect is that the diminution in question is limited in time, it depends on the condition that state debts fall under 50% of the GDP. With the realisation of this requirement, it seizes to exist immediately, without any further action of the lawmaker. Besides, the limitation is partial, since the Court’s supervisory power still exists with reference to certain fundamental rights. The Court already established a practice in 2012-2013 that those rights which may serve as bases for the examination shall be interpreted broadly, whereas the scope of the limitation should be narrowed. In addition, the diminution does not concern the constitutional complaints against judicial decisions, the analysis of conflicts with international treaties and we have already carried out examination based on judicial initiative. It does not pertain to the regulation of tax procedures, so we can examine the keeping of the fairness of these proceedings on every occasion. It is also worth mentioning that parallel with the limitation in this field, the powers of the Court were broadened in the sphere of the individual protection of fundamental rights. Also, the laws on the budget and taxes usually remain outside the Court’s jurisdiction, since it would be difficult to make a difference between a tax rate of 16% and 20% from a perspective of fundamental rights. These questions barely have constitutional relevance and their evaluation would therefore be problematic. Self-evidently, if the rate of the tax becomes extremely excessive, an issue may occur, however, in this case there would be such concrete rights that would provide reasons for the examination by the Court. For instance, we conducted analyses last year with reference to the freedom of religion, but evaluation on the basis of human dignity may rise as well. In general, I could tell that although we cannot consider a limitation of power as a positive phenomenon, the course of Hungarian history, especially the state debts deriving from the communist era may provide justification to a certain extent.
Lawyr.it: How do you consider the last twenty years of the Constitutional Court’s functioning compared to the previous, more activist tendencies and how do you see the Court’s current jurisdiction?
TS: The Constitutional Court’s jurisdiction is always strictly connected to the Fundamental Law, thus, it has a completely different nature today than under the former Constitution. Following the political changes in 1989-1990, the Constitutional Court was de facto the “second chamber” of the Hungarian Parliament and in the light of the specific historical background this tendency was perfectly understandable and justifiable. The main function of the Court back then was to sweep away the socialist elements from our legal system. (In Italy for example, it took more than ten years to set up the Court, still, it wiped out more than forty regulations deriving from the fascist regime.) In that situation the Hungarian Court adequately annulled even more rules. It was a significant change with the entering into force of the Fundamental Law that the role of the abstract posterior norm control - which had already meant a huge burden on the proper functioning of the Court - was reduced. Parallel with the decrease of the proportion of posterior norm control, the constitutional complaints gained dominance, these form approximately 90% of the Court’s jurisdiction these days, and the Court has the opportunity to deal with cases of less political character. Naturally, such cases sometimes occur unavoidably, but we are striving for performing the best of our knowledge and expertise on these occasions to provide clear constitutional argumentations and messages behind the political contents and to place the real emphasis on the professional aspects and considerations.
By Krisztina Petra Gula
This material was published in Lawyr.it Vol. 6 Ed. 2, April 2019.
