Abstract
The Fundamental Law brought about a significant change in the powers of the Hungarian Constitutional Court with the introduction of the constitutional complaint against judicial decisions. While the Constitutional Court was previously only able to conduct a narrow review of the application of the law within the framework of ex post (abstract) norm control aimed at the objective protection of the constitutional order, this type of complaint provides an opportunity to enforce the rights guaranteed in the Fundamental Law when assessing compliance with the obligation of interpretation in conformity with the Fundamental Law. However, the concept of fundamental rights alone is not sufficient to define the extent of constitutional review, which is why the Act on the Constitutional Court limits the scope of review to violations of fundamental rights relevant from a procedural law perspective, in line with the remedial function of constitutional complaints. The basis for review is the obligation of interpretation in conformity with the Fundamental Law [Article 28 of the Fundamental Law], therefore I examine the subject matter of the review primarily in light of decisions that call this obligation into question. In addition, the Constitutional Court also reviews the correctness of legal interpretation and application, so the analysis also addresses the subject matter of the review in these cases. The study thus distinguishes between direct and indirect violations of fundamental rights and, in the context of a comparative legal analysis, seeks to answer the question of where the line is drawn between matters falling within the jurisdiction of the ordinary courts and those falling within the jurisdiction of the Constitutional Court.
Keywords: constitutional complaint, fundamental rights, obligation of interpretation in conformity with the constitution, proportionality test, fair balance, prohibition of arbitrariness.
I. Introduction
During the democratic transition in Hungary, constitutional aspirations gave rise to the institution of the Constitutional Court. The Kelsenian model of the constitutional court was a separate and independent constitutional institution created by Article 32/A of the Constitution.[2] The main task of the Constitutional Court – and the only one enshrined in the Constitution – was the ex-post control of the constitutionality of laws, with particular reference to the protection of fundamental rights. The Constitution also provided that the ex post review procedure of the Constitutional Court may be initiated by any person in the cases provided for by law [Article 32/A (3)].
According to the Constitutional Court, the only power that followed from the Constitution was the power of ex post review, and this power was compulsory and complete.[3] This was also the legal basis for the review of the decisions of the Supreme Court, to which the Constitutional Court has extended its jurisdiction to ensure legal unity.[4] The primary function of abstract norm control is the objective protection of the constitutional legal order, thereby making the Constitutional Court the guardian of the hierarchical legal order.[5]
[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service.
[2] For an overview, see Fruzsina Gárdos-Orosz – Kinga Zakariás: Organisational, functional and procedural changes of the Hungarian Constitutional Court 1990-2020, in Fruzsina Gárdos-Orosz – Kinga Zakariás (eds.) The main lines of the jurisprudence of the Hungarian Constitutional Court: 30 case studies from the 30 years of the Constitutional Court (1990-2020). Nomos, 2022. 17–44.
[3] Decision 4/1997. (I. 22.) AB of the Constitutional Court of Hungary ABH 1997, 41, 49.
[4] Decision 42/2005. (4 November) AB of the Constitutional Court of Hungary, ABH 2005, 514–515.
[5] László Sólyom: Az alkotmánybíráskodás kezdetei Magyarországon, Osiris, 2001. 29.