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«EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) OPINION ON THE FOURTH AMENDMENT TO THE FUNDAMENTAL LAW OF HUNGARY Adopted by the ...»

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Strasbourg, 17 June 2013

CDL-AD(2013)012

Opinion 720 / 2013 Or. Engl.

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

OPINION

ON THE FOURTH AMENDMENT

TO THE FUNDAMENTAL LAW

OF HUNGARY

Adopted by the Venice Commission at its 95th Plenary Session (Venice, 14-15 June 2013) on the basis of comments by Mr Christoph GRABENWARTER (Member, Austria) Mr Wolfgang HOFFMANN-RIEM (Member, Germany) Ms Hanna SUCHOCKA (Member, Poland) Mr Kaarlo TUORI (Member, Finland) Mr Jan VELAERS (Member, Belgium) This document will not be distributed at the meeting. Please bring this copy.

www.venice.coe.int CDL-AD(2013)012 -2Table of contents I. Introduction

II. Preliminary remarks

III. Amendments to the Chapters “Foundation” and “Freedom and Responsibility” of the Fundamental Law

A. The protection of marriage and family (Article 1)

B. Communist past (Article 3)

C. The recognition of churches (Article 4)

D. Media access for political parties (Article 5.1)

E. Limitation of the freedom of speech (Article 5.2)

F. Autonomy of institutions of higher education (Article 6)

G. Financial support to students (Article 7)

H. Homelessness (Article 8)

IV. The rule of law and independence of the judiciary

A. The role of the President of the National Judicial Office (Article 13)

B. The transfer of cases by the President of the NJO (Article 14)

V. Constitutional Court

A. Adoption of provisions on the constitutional level as a reaction to Constitutional Court decisions

B. Previous Case-Law (Article 19)

C. Review of constitutional amendments (Article 12.3)

D. Review of budgetary laws (Article 17.1)

E. 30 day limit for the review of requests from ordinary courts (Article 12.1)................ 27 F. Request for

Abstract

control by the Curia and the Supreme Prosecutor (Article 12.2)

G. Special tax in case of court judgments leading to payment obligations (Article 17.2)

VI. Constitutionalism

A. Use of cardinal laws

B. Instrumental use of the Constitution

VII. Conclusions

-3- CDL-AD(2013)012 I. Introduction

1. By letter of 11 March 2013, the Secretary General of the Council of Europe, Mr Thorbjørn Jagland, requested an opinion of the Venice Commission on the compatibility of the Fourth Amendment to the Fundamental Law of Hungary with the Council of Europe Standards.

2. By letter of 13 March 2013 to the Secretary General of the Council of Europe, the Minister for Foreign Affairs of Hungary, Mr János Martonyi, requested an opinion of the Venice Commission on the Fourth Amendment, with regard to the international commitments that derive from Hungary’s membership of the Council of Europe.

3. On 12 April 2013, a delegation of the Venice Commission, composed of Mr Wolfgang Hoffmann-Riem, Ms Hanna Suchocka, Mr Kaarlo Tuori and Mr Jan Velaers, accompanied by Mr Thomas Markert and Mr Schnutz Dürr from the Secretariat, visited Budapest. The delegation met with (in chronological order) Mr Róbert Répássy, State Secretary of the Ministry of Public Administration and Justice, Mr László Sólyom former President of Hungary, Mr Tamás Gaudi-Nagy and Mr Csaba Gyüre (Jobbik party), Mr Bence Rétváry, State Secretary of the Ministry of Public Administration and Justice (KDNP) and Mr Imre Vas (Fidesz), Mr Attila Mesterházy fraction leader of the Hungarian Socialist Party (MSZP), Mr Gergely Bárándy (MSZP), Mr Gábor Galambos (MSZP), Mr Vilmos Szabo (MSZP), Mr Pal Schiffer (Politics can be different), Mr László Varju (Democratic Coaliton), Ms Tímea Szabó (Together 2014) and Mr

József Szájer Member of the European Parliament (Fidesz) as well as with the following NGOs:

Hungarian Helsinki Committee, Hungarian Civil Liberties Union and the Eötvös Károly Institute.

4. On 15 May 2013, a delegation of the Venice Commission, composed of Mr Christoph Grabenwarter and Ms Hanna Suchocka, accompanied by Mr Thomas Markert and Mr Schnutz Dürr from the Secretariat met in Vienna with the independent experts Mr Delvolvé, Professor Emeritus at the University of Paris Panthéon-Assas, France, Mr Péter Kruzslicz, Assistant at the University of Szeged, Hungary, and Mr András Patyi, Rector of the National University of Public Service, Hungary, as well as with a delegation of the Hungarian Government, composed of Mr Krisztián Gáva, Deputy State Secretary for the Legislation of Public Law of the Ministry of Public Administration and Justice, Mr Gábor Baranyai, Deputy State Secretary of the Ministry of Foreign Affairs, and Ms Ágnes Kertész Head of the Legal Service of the Hungarian Permanent Representation to the European Union in Brussels. The present opinion takes into account the results of both visits.

5. The Venice Commission is grateful to the Hungarian authorities for the excellent cooperation in the organisation of the Budapest and the Vienna meetings. The Commission would like to thank the independent experts and the Hungarian authorities for the explanations provided.





6. The present opinion was discussed at the Sub-Commission on Democratic Institutions on 13 June 2013 and, following an exchange of views with the Minister of Foreign Affairs of Hungary, Mr Martonyi, was subsequently adopted by the Venice Commission at its 95th plenary session (Venice, 14-15 June 2013).

II. Preliminary remarks

7. On 11 March 2013, the Parliament of Hungary adopted the Fourth Amendment (CDLREF(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 and with regard to international commitments that derive from Hungary’s membership of the Council of Europe.

CDL-AD(2013)012 -4The 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 Hungary1;

 Opinion on the new Constitution of Hungary2;

 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 Hungary3;

 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 Hungary4;

 Opinion on Act CLI of 2011 on the Constitutional Court of Hungary5;

 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 Hungary6;

 Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary7.

9. 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.

10. The Technical Note and the Background Document insist that, for the most part, the Fourth Amendment results from an integration into the Fundamental Law of the Transitional Provisions, which had been annulled by Constitutional Court decision 45/20128 on formal grounds. In this respect, it is important to note that the Venice Commission had received a request for an opinion on the Transitional Provisions to the Fundamental Law9, but had postponed the preparation of such an opinion while an appeal against the Transitional Provisions was pending before the Constitutional Court. The Commission did not resume the work on that opinion after a large part of the Transitional Provisions was annulled by the Court. Nonetheless, several Articles of the Transitional Provisions had been criticised already in the other opinions mentioned above and this opinion will refer to these points, where appropriate.

Adopted by the Venice Commission at its 86th Plenary Session (Venice, 25-26 March 2011), CDLAD(2011)001.

Adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011), CDL-AD(2011)016.

Adopted by the Venice Commission at its 90th Plenary Session (Venice, 16-17 March 2012), CDLAD(2012)001.

Adopted by the Venice Commission at its 90th Plenary Session (Venice, 16-17 March 2012), CDLAD(2012)004.

Adopted by the Venice Commission at its 91st Plenary Session (Venice, 15-16 June 2012), CDL-AD(2012)009.

Adopted by the Venice Commission at its 91st Plenary Session (Venice, 15-16 June 2012), CDL-AD(2012)008.

Adopted by the Venice Commission at its 92nd Plenary Session (Venice, 12-13 October 2012), CDLAD(2012)020.

Decision 45/2012, 29.12.2012, Magyar Közlöny (Official Gazette), 2012/184, [CODICES: HUN-2012-3-010].

Decision of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe of 13 March 2012.

-5- CDL-AD(2013)012

11. The Hungarian Government also provided an opinion on the Fourth Amendment, requested by the Minister of Foreign Affairs, Mr Martonyi, prepared by Messrs. Francis Delpérée10, Pierre Delvolvé11, and Eivind Smith12, which concludes that some provisions of the Fourth Amendment are in conformity with European standards, some could be interpreted in conformity with European standards and some provisions are “of a debatable nature” with regard to these standards. That opinion examines in detail the relevant case-law of the Court of Justice of the European Union and the European Court of Human Rights. It defines as the framework of its analysis the legislation of the European Union and the European Convention on Human Rights.13

12. In accordance with its general practice, the Venice Commission will examine the Fourth Amendment in the present opinion from a wider scope of reference. Hungary is bound by the Statute of the Council of Europe’s three main pillars, which are: human rights, democracy and the rule of law. The present opinion evaluates the Fourth Amendment from the point of view of its compatibility with all of those standards14 and against the commitments that derive from Hungary's membership of the Council of Europe15. In addition to human rights obligations and Council of Europe standards, these commitments include democratic principles, particularly checks and balances, and judicial independence as part of the rule of law.16 Therefore, taking

into account the legal context of the Fourth Amendment, the present Opinion will:

(a) analyse the provisions of the Fourth Amendment individually and in the light of the relevant decisions of the Constitutional Court and, (b) examine systematically the effect which these provisions (taken together) have on the checks and balances and on the rule of law in Hungary.

13. As a response to the draft of this Opinion, the Hungarian Government transmitted “Comments of the Government of Hungary on the Draft Opinion of the Venice Commission on the Fourth Amendment to the Basic Law of Hungary” (hereinafter “the Government Comments”) and a “Note on Arguments that could be Opposed against the Draft Opinion of the Venice Commission on the Fourth Amendment to the Basic Law of Hungary” by Mr Delvolvé. A major point made in these texts is that in several cases, the Fourth Amendment only contains “enabling clauses” and that the implementing legislation could attenuate the scope and effects of the constitutional provisions. However, this Opinion examines the Fourth Amendment itself and not the implementing legislation, which has not been submitted for opinion. The Commission evaluates these “enabling clauses” as concerns their scope, taking a risk oriented approach. In some cases, the Constitutional Court could even find unconstitutional implementing legislation that does not follow the direction given in the Fundamental Law.

14. This opinion is based on an English translation of the Fourth Amendment and the implementing Bill. The translation may not accurately reflect the original version on all points and, certain comments may result from problems in the translation.

Senator, Professor Emeritus at the Catholic University of Leuven, President of the International Academy for Constitutional Law.

Member of the Institute, Professor Emeritus at the University of Paris Panthéon-Assas.

Professor at the Institute of public and international law at the University of Oslo, President of the Division of Humanities and Social Sciences at the Norwegian Academy of Science and Letters, Vice-President of the International Association of Constitutional Law.

Page 5 seq. (French version).

The request to the Venice Commission by the Secretary General asks the Commission to examine the Fourth Amendment “from the viewpoint of its compatibility with Council of Europe standards”.

Minister Martonyi’s request expressly relates to the “international commitments deriving from Hungary’s membership of the Council of Europe” Report on the Rule of Law, adopted by the Venice Commission at its 86th plenary session (Venice, 25-26 March 2011), CDL-AD(2011)003rev, para. 55.

CDL-AD(2013)012 -6Amendments to the Chapters “Foundation” and “Freedom and

III.



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