Civil Organizations to Venice Committee on Constitutional Court Worries

On January 25th, the Monitoring Committee of the Council of Europe Parliamentary Assembly requested that the Venice Commission, the Council of Europe's advisory body on constitutional matters review five further Acts, including the Act on the Hungarian Constitutional Court. The Hungarian Helsinki Committee, the HCLU and the Eötvös Károly Institute sent their opinion of the new Act on the Constitutional Court to the Venice Committee.

As previously noted by the civil organizations prior to the adaptation of the Act, the Constitutional Court will be less effective in its ability to act as a protective body for the Constitution, and as a result, power of the Parliament will increase and fundamental rights protection will decrease. The three organizations made the following observations, among others, to the Venice Committee:

  1. The Bill on the Constitutional Court was submitted by a parliamentary committee to the Parliament instead of the Government. This procedure breached the Fundamental Law, which provides that the Government shall submit all cardinal laws to the Parliament. This procedural error also meant that no professional or social debate could take place regarding the Bill.
  2. The Constitutional Court Act empowers the parliamentary majority to nominate members of the Constitutional Court on its own. Thus, neither political consensus in supporting the nominee nor the justices’ professional qualification is ensured. Candidates with conspicuous political commitments may still be elected as Constitutional Court judges in the future.
  3. In breach of the Fundamental Law, the Constitutional Court Act provides that should a new member of the Constitutional Court not be elected by the time the term of office of another judge ends, the former judge shall remain in office. This rule allows for “infinite membership” in the Constitutional Court.
  4. In the future, citizens shall be entitled to turn to the Constitutional Court only by way of a constitutional complaint. In order to ensure that the constitutional complaint guarantees effective protection of individual fundamental rights under equal conditions, the obstacles to the petitions (e.g. mandatory legal representation or the half-million forint – cc. 1 700 EUR – fine imposed for the “abusive” use of the right to submit a petition) need to be withdrawn.
  5. By adopting the Constitutional Court Act, almost all ongoing procedures (1600 in total) at the Constitutional Court were automatically terminated. As a result, unconstitutional legal norms will remain in effect. After 1 January 2012, petitions that have been previously submitted by petitioners who have lost standing to submit actio popularis petitions may be re-submitted as individual constitutional complaints. Unfortunately, this will require going through a lengthy legal procedure and suffering violations of fundamental rights.

Analsys compiled by the civil organizations and English translations of a number of paragraphs of the Act can be accessed here (pdf).

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