European constitutional justice in the XXI. century is no longer conceivable without that the constitutional courts of the Member States take into account each other's practice and experiences. However, the relationship between supranational and constitutional courts is even more important in the European legal order. In the spirit of this, the practice of the Hungarian Constitutional Court (hereinafter: "HCC") is presented in the light of the way in which it applies foreign case law.
The HCC is committed to the European constitutional dialogue, in the spirit of which the body takes into account the decisions of the European forums in many of its decisions. In this context, we refer to the case law of the Court of Justice of the European Union (hereinafter: CJEU), the case law of the European Court of Human Rights (hereinafter: "ECtHR") and the case law of the Constitutional Courts of other Member States. However, before we go into the description of the application of foreign case law, it is necessary to review the legal environment concerning the HCC.
In Hungary, the operation of the HCC is basically determined by three sources of law: (i) the constitutional rules on the Constitutional Court under Article 24 of the Fundamental Law of Hungary (hereinafter: "FL");[1] (ii) the Act CLI of 2011 on the Constitutional Court (hereinafter: HCCA);[2] and (iii) the Rules of Procedure of the HCC.[3] Under (i) and (ii) Art. 24. (9) lays down that "the detailed rules for the powers, organization and operation of the Constitutional Court shall be laid down in a cardinal Act", which is the HCCA. Under (ii) and (iii) the HCCA sets forth under its Article 70 that "the detailed rules of the procedures followed by the Constitutional Court shall be laid down in the Rules of Procedure of the Constitutional Court", which is then adopted by a resolution of the full session of the Court.
According to Article 24 of the FL, the HCC shall be the principal organ for the protection of the FL itself. And as such, it is subordinated only to the FL. In the light of all this, it can be said that foreign case law can only play a complementary role in the jurisprudence of the HCC. There are, of course, decisions in which the consideration of foreign case law was based on the HCC's own discretion. (These are usually references to the case law of the constitutional courts of the Member States.) In other cases, the application of foreign case law is more of an unwritten obligation. This is typical of the practice of supranational courts such as the ECtHR and the CJEU. The practice of these forums is applied by the HCC taking into account the FL (primarily), the EU legal order and the constitutional dialogue.
According to the HCC, the constitutional dialogue is an applicable tool to guarantee the sui generis nature of both national and European law and may be able to strike a balance in specific situations between the inviolable core of Member States' constitutional law and application priority of European law developed by the CJEU. Without a dialogue between the above courts, open to each other and to each other's arguments, neither the sui generis nature of constitutional law of the Member States nor of the European law can be guaranteed.[4] In the spirit of the constitutional dialogue, the HCC in 47 cases between 2012 and 2020 relied on the case law of the CJEU[5] and 113 cases relied on the case law of the ECtHR.[6] For the decisions,
- 38/39 -
we will describe only a few of these, especially the HCC's practice of constitutional dialogue as a tool.[7] In the case of a number of decisions concerning the case law of the CJEU, the HCC has also taken into account the case law of other Member States, so these decisions are discussed in the relevant chapter below.
In Decision 9/2018. (VII. 9.) AB,[8] based on the petition of the Hungarian Government, the HCC interpreted Articles E) and Q) and Article 25 of the FL. The Government's question was whether the constitutional self-identity of Hungary, in particular Article 25 of the FL on the judicial power, would - on the basis of Article E) of the FL - be violated by the promulgation of an international treaty, which: (i) is not included among the founding treaties of the EU and which is not considered a legal act of the Union, but the state parties to which can only be the Member States of the EU; (ii) is considered the precondition for the effective implementation of an enhanced cooperation established in the framework of EU law; and (iii) sets up an international court structure, which has exclusive jurisdiction in a specific group of cases delimited partly by EU law and partly by another international agreement through the intermediary of EU law; is empowered to interpret and apply EU law and other international treaties concluded by the state parties - even with parties which are not Member States or with the participation of such states - and national law; and only offers legal remedies against its decisions within the court structure to be established.
The HCC examined whether the so-called "enhanced cooperation" included in the law of the EU should be considered as part of the Union law (whether the agreement setting up the court structure complying with the criteria specified in the first question fell within the scope of Article E of the FL and whether it might violate the constitutional self-identity of Hungary), or whether it should be handled as a treaty concluded on the basis of international law (falling under Article Q).
The HCC noted that by joining the EU, Hungary had not given up its sovereignty but it did allow for the joint exercise of certain powers. The maintaining of Hungary's sovereignty should be presumed in the course of assessing the joint exercising of powers additional to the rights and obligations specified in the founding treaties of the EU (the so-called presumption of maintained sovereignty). The form of enhanced cooperation should enjoy special consideration under public law. Hungary was free to conclude an international treaty the only states parties of which were the Member States of the EU, and which created an institution that applied the law of the EU. However, all this would only become part of the law of the EU if its legal basis was to be found in the founding treaties. This should be examined by the Government in the case of the concrete cooperation. If in the present case the Government found that the founding treaties of the EU had already specified the power related to establishing the institution concerned (the Unified Patent Court), the legal basis of the publication of the implementation of international treaty would be Article E of the FL, otherwise the legal basis would be Article Q.
Regarding the conditions of validity necessary for promulgating an agreement under international law (Article Q of the FL) the HCC emphasized that the Unified Patent Court would apply in its procedure not only the law of the EU but also the national laws of the Member States.
International agreements establishing judicial forums will typically set up an institution which provides a special additional legal remedy. However, if a specific group of cases were to be dealt with in their entirety by a special court and it was not a simple question of the remedy, this would be a different matter. The operation of such an international forum, supplementing the national court structure, would result in drawing legal disputes between private parties away from the jurisdiction of the national courts and this would of course call into question the FL's chapter on the judicial system, which states that the national courts will decide, without exception, on all legal disputes of private law.[9]
The HCC referred to the fact that upon the request of the Council of the European Union the CJEU examined the draft of the UPC Agreement and in its opinion No. 1/09 delivered on 8 March 2011 it concluded that the draft agreement on establishing a unitary system for the settlement of legal disputes in patent matters was inconsistent with the provisions of TEU and TFEU. The background of this argument was that the former draft agreement, by conferring on an international court which is outside the institutional and judicial framework of the EU an exclusive jurisdiction to hear a significant number of actions brought by individuals, would deprive courts of Member States of their powers in relation to the interpretation and application of EU law and the CJEU of its powers to reply, by preliminary ruling, to questions referred to it by those courts. According to the CJEU, - continues the HCC - this would have altered the essential character of the powers which the Treaties confer on the institutions of the EU and on the Member States and which
- 39/40 -
are indispensable to the preservation of the very nature of EU law. The HCC stated that as a result of this decision, the UPC Agreement published on 20 June 2013 in the Official Journal of the European Union sets forth in its preamble that: "CONSIDERING that, as any national court, the Unified Patent Court must respect and apply Union law and, in collaboration with the Court of Justice of the European Union as guardian of Union law, ensure its correct application and uniform interpretation; the Unified Patent Court must in particular cooperate with the Court of Justice of the European Union in properly interpreting Union law by relying on the latter's case law and by requesting preliminary rulings in accordance with Article 267 TFEU." Based on the above, the HCC stated that the Article 20 of the UPC Agreement lays down the primacy of Union law and Article 21 regulates requests for preliminary rulings for the purpose of the correct application of the EU law.
Between 2012 and 2020, the HCC took into account the decisions of the German Federal Constitutional Court in the largest number among constitutional courts of the Member States, referring to the Federal Constitutional Court's decisions a total of 13 times.[10] In the same period, the HCC cited three times the practice of the French Constitution Council,[11] two times the practice of the Constitutional Court of Austria,[12] but references could be explored to the case law of Slovakia, Czech Republic, Turkey, Poland, Slovenia and more.[13]
In the spirit of the European constitutional dialogue, the HCC emphasized in several decisions that it considered important to take into account the practice of the constitutional courts of the Member States[14], bearing in mind, of course, that practice can only play a supporting role in the HCC's interpretation. Overall, it can be stated that the HCC applies the practice of the constitutional courts of the Member States (i) either in a targeted manner, taking into account the decision or decisions of a CC, (ii) or by performing a system-wide, comparative analysis.
In formulating its position, the HCC, in support of its reasoning, took into account, for example, the practice of the French Conseil constitutionnel (Constitutional Council) in Decision 3/2019. (III. 7.) AB.[15] In its decision the HCC established, that when interpreting and applying Section 353/A (1) of the Act C of 2012 on the Hungarian Criminal Code[16] it is a constitutional requirement that the provision shall not extend to altruistic conduct unrelated to the prohibited aim specified in the statutory definition, i.e. conduct performed fulfilling the obligation of helping the vulnerable and the poor. However, the HCC rejected the petition seeking the declaration of the conflict of Section 353/A of the Act C of 2012 on the Criminal Code with the FL. With regard to the high international and political importance of the case and the spirit of constitutional dialogue, the HCC examined the jurisprudence of another Member State of the EU. In the framework of this examination, the HCC established that in France, in the case No. 2018/717-718,[17] the Conseil constitutionnel (Constitutional Council) reached a similar conclusion with regard to the French criminal offence of facilitating the illegal entry, movement and residence of a foreign person found in the Act No. 2012-1560 (with a statutory definition similar to that of the Criminal Code).[18] The HCC's decision stated, that the Conseil constitutionnel attributed constitutional importance to the slogan-word "fraternity" found in the preamble and in Article 2 of the Constitution of France and stated that "no principle nor any constitutional rule ensures foreign nationals general and absolute rights of entry and residence within the French national territory. Furthermore, the objective of fighting against illegal immigration partakes of the safeguarding of public order, which is an objective that has constitutional value". It also established that the French Act excluded voluntary humanitarian assistance, therefore the Conseil constitutionnel annulled parts of the law in a mosaic-like manner.[19]
In a similar way, when formulating the reasoning, the HCC took into account the case law of the German Federal Constitutional Court in Decision 2/2019. (III. 5.) AB.[20] In the decisionit was concluded that the HCC'sauthentic (erga omnes) interpretation of the FL should be respected by all other organs. The case was relevant to the awarding of refugee status, and the HCC held that the Hungarian State is not constitution-
- 40/41 -
ally obliged to award such status to all applicants. Based on the petition submitted by the Government, the HCC had to answer three questions, for which it had to interpret Article R) (1), Article E), Article 24 (1) and Article XIV (4) of the FL.[21] With regard to the above, the petitioner asked the HCC the following questions:[22] (i) Can it be concluded from Article R (1) of the FL that, as the basis of Hungary's legal system, the FL is at the same time the source of legitimacy for all sources of law - including the law of the European Union under Article E) of the FL?[23] (ii) Does it follow from Article 24 (1) of the FL that the HCC's (authentic - erga omnes) interpretation of the constitution may not be derogated by any interpretation provided by other organs? (iii) In case of an affirmative answer to the second question, how does the HCC provide a genuine interpretation of the second sentence of Article XIV (4) of the FL with regard to the right to asylum, taking into account the Seventh Amendment?
The HCC pointed out that the transfer of competences on the basis of Article E) (2) of the FL is based on the Founding Treaties as international treaties signed by the Member States and the ratification of which requires a majority required for the adoption of a constitution under Article E) (4).[24] In the opinion of the HCC, the requirement of a majority for the adoption of a constitution specified in Article E) (4) results in the obligation of a cooperative interpretation of the law and the Union law shall enjoy a primacy of application in contrast with the internal law created by the domestic legislator. The HCC cited the jurisprudence of the Federal Constitutional Court of Germany in which the German Court pointed out that "the uniform enforcement of the European law in the Member States is of central importance concerning the success of the European Union"[25] and the legal community of the 28 members could not survive without the uniform enforcement and effect of European law in the Member States.[26]
Also, in formulating the reasoning, the HCC took into account the case law of the German Federal Constitutional Court and the ECtHR in Decision 6/2018. (VI. 27.) AB.[27] The applicant of the decision, a transsexual foreign citizen, lodged a constitutional complaint seeking the annulment of a decision of the Budapest-Capital Administrative and Labour Court. The applicant had previously been granted refugee status by the Hungarian authorities as he had been pursued in his home country due to his trans-sexuality. The applicant filed an application for gender reassignment with the Immigration and Asylum Office (as follows, the Office), as his official documents identified him as female, but this description did not match his real gender identity. The Office rejected his request stating that there was no procedure or formal decision-making process available to cover these issues. The reason for the rejection was that the Office had no competence at all in this field and it could not refer the case to a competent authority for the applicant's birth certificate to be amended since his birth had not been registered in Hungary. The applicant's challenge of the decision of the Office with the Administrative Court was rejected, on the basis that only Hungarian citizens were entitled to have changes to their gender altered by the registrar with the competence to alter the birth certificate. The process of changing the name was the legal basis of the alteration of the gender. As the applicant in this matter was not a Hungarian citizen, he did not have a Hungarian birth certificate and so this type of process was not applicable.
The applicant lodged a constitutional complaint against the decision of the Administrative Court, stating that it had violated his right to human dignity (Article II of the FL); right to private life [Article VI. (1) of the FL] and the prohibition of discrimination [Article XV. (2) of the FL]. He claimed that the right to a name stemmed from the right to human dignity which was also applicable to transsexuals. There was, in his view, no reason to insist on the birth certificate; he was registered in the personal data and address registry and his gender and name could have been changed through this data. The rights to human dignity and to private life do not only belong to Hungarian citizens. They are universal human rights. The decision of the Administrative Court constituted a violation of the prohibition of discrimination based on national origin. The HCC rejected the applicant's complaint on the basis that the Administrative Court, for want of applicable legal regulation, could not have come to any other conclusion. The HCC also examined and took into consideration[28] various judgments of the CJEU, the ECtHR and the Federal Constitutional Court of Germany.[29]
The HCC underlined that there is still no consensus on certain specific questions concerning the legal recognition of gender. It referred to the fact that ECtHR accepted as a proportionate restriction the Finnish regulation that made the legal recognition of gender
- 41/42 -
dependant on transforming marriage into a registered partnership[30], but according to the German Federal Constitutional Court this would qualify as an unjustified restriction with regard to those who wish to keep on living in a marriage with each other. The HCC examined the decision 1 BvL 10/05, 27 May 2008 of the Federal Constitutional Court in which the German body pointed out that the right to sexual self-determination and sexual identity belong to the narrowest and the most intimate sphere of personhood.[31]
In Decision 3/2020. (I. 3.) AB on purchasing electronic cigarette,[32] the HCC stated that the omission by the National Assembly had resulted in a situation in conflict with the FL, because together with restricting the retail trade of electronic cigarettes and the connected products to the tobacco shops with mandatory concession, it failed to provide appropriate compensation for those affected by the restriction of the right to enterprise, therefore, the HCC called upon the National Assembly to meet its obligation of legislation.
The decision is based on the initiative of MPs for posterior norm control and the constitutional complaint submitted by a company trading with electronic cigarettes and its accessories, who challenged the provision in the Act on repelling smoking among young people and on the retail trade of tobacco products, restricting to tobacco shops the retail trade of certain products, such as electronic cigarette, refill cans and electronic devices imitating smoking. Since 2011, the petitioner company has been specialized on the retail trade of electronic cigarette and its accessories through its webshop and its shops, however, due to the amendment of the law in 2016, it had to terminate its commercial activity related to the relevant products, it had to close its shops and dismiss two thirds of its employees, and it could not sell the remaining stock of products. Due to the prohibition of online sales, the business activity of the petitioner company has become impossible, and the law-maker failed to provide for compensation, failed to provide for an opportunity to continue its operation by announcing new concessions.
According to the petitioner, the regulation violated its right to property and the right to enterprise, and it is also against the prohibition of discrimination. In the context of the right to enterprise, the HCC pointed out in the decision that the scope of protection of this fundamental right covers both the market entry and the continuation of a commenced activity, although it underlined that the relevant fundamental right does not guarantee that no changes may take place in the legal environment. In enacting a limitation, the legislator is bound to employ the most moderate means suitable for reaching the specified purpose, i.e. the limitation should not exceed the level absolutely necessary for achieving the constitutionally justifiable objective. In the context of the restriction of the right to enterprise, the subject matter of the explicit concern is the manner of its practical realization: the position of the enterprises engaged in the retail trade of electronic cigarettes already operating at the time of the entry into force of the amendment of the law was made less advantageous due to the fact that the law-maker did not pay any attention to their fundamental right to maintain their business activity, or to the actual damage incurred in the particular case, resulting from the statute under review.
For the purpose of eliminating the situation being contrary to the FL the HCC stated that there has been a situation contrary to the FL caused by an omission, as the provisions of the Act and of the FL may be harmonized by establishing a legislative omission, and by making a call upon the law-maker.[33]
In its decision - to support the reasoning - the HCC noted that in 2015 the Constitutional Court of Austria reviewed a similar case. There the challenged provision of the law extended the tobacco monopoly to the refill liquids with or without nicotine content and to disposable electronic cigarettes, thus, after the amendment of the law, these items could only be bought in tobacco shops. Thus, subsequently, the petitioners were only allowed to sell the electronic cigarette device itself. In its decisions No. G 118/2015, No. G 131/2015 and No. G 204/2015, the Constitutional Court of Austria found that the restriction was necessary, but it was disproportionate with respect to the right to enterprise.[34]
The HCC conducted a systematic, wide-ranging examination into the practice of CJEU and the constitutional courts of the Member States in the Decision 22/2016. (XII. 5.) AB on the interpretation of Article E) (2) of FL.[35] In its "Lisbon-decision"[36] in 2010, the HCC did not essentially outline the direction to follow in terms of the constitutional relationship of the Hungar-
- 42/43 -
ian legal system and the European integration. However, with their decision 22/2016. (XII. 5.) AB, the HCC took into consideration the interpretation of Article 4 (2) TEU in light of the "integration provisions" of the FL (primarily Article E) and to answer the questions it left open in the Lisbon-decision.
The HCC stated that under the concept of constitutional identity, the HCC understands the self-identity of Hungary and the scope of this identity can only be considered on a case-by-case basis based on the "whole Fundamental Law and certain provisions thereof, in accordance with the National Avowal and the achievements of the historical constitution - as required by Article R) (3)[37] of the Fundamental Law." [38] At the same time, the HCC regards constitutional identity as a bridge between Member States and European integration when it states that the protection of constitutional identity should be granted in the framework of an informal cooperation with the CJEU - namely constitutional dialogue - based on the principles of equality and collegiality.[39] The Commissioner for Fundamental Rights has filed the motion for interpretation to the HCC, based on which the "Identity decision" was made. The Commissioner's petition was filed in relation to the provisions of Article XIV and Article E (2) of the FL in view of the prohibition of group expulsion, and asked for the interpretation of Article (E) (2) (i) regarding whether Hungary was obliged to implement measures that are in violation of the FL; (ii) whether an EU act could violate fundamental rights; and (iii) the Commissioner asked for further "guidance" in relation to ultra vires actions of the EU.[40] The HCC separated the questions in the petition and considered the interpretation of Article XIV in a separate procedure, while the questions concerning Article E) have been discussed above.[41] Following the presentation of the petition and the determination of its competence, the HCC engaged in a broad-ranging comparative examination into the high court practices of the Member States.[42] As a result, the position of the HCC is that in exceptional cases and as a last resort ("ultima ratio") it is possible to examine "whether exercising competences on the basis of Article E) (2) of the Fundamental Law results in the violation of human dignity, the essential content of any other fundamental right or the sovereignty (including the extent of the competences transferred by the State) and the constitutional self-identity of Hungary." [43] Regarding the possibility of an exercise of competences under Article E) (2) infringing fundamental rights, it is determined by the HCC that any exercise of public authority in the territory of Hungary (including the joint exercise of competences with other Member States) is linked to fundamental rights.[44]
Decision 22/2016. (XII. 5.) AB is perhaps one of the decisions with the most foreign elements in the case law of the HCC. The HCC examined more then twenty decisions[45] about the provisions on the limitations of the joint exercise of competences. Among others the HCC examined the case law of Supreme Court of Estonia,[46] French Constitutional Council,[47] Supreme Court of Ireland,[48] Constitutional Court of Latvia,[49] Constitutional Court of Poland,[50] Spanish Constitutional Court,[51] Constitutional Court of the Czech Republic,[52] England and Wales High Court,[53] Supreme Court of the United Kingdom[54] and the German Federal Constitutional Court.[55]
With reference to the German Solange decisions, the HCC declared that it must act with regard to the possible application of European law in protecting fundamental rights. However, the HCC also noted that - as a last resort - that "it must grant that the joint exercising of competences under Article E) (2) of the Fundamental Law would not result in violating human dignity or the essential content of fundamental rights."[56] With regard to ultra vires acts, the HCC emphasized the fact that the "Integration clause" of the FL allows for the application of the EU legal acts in Hungary but also means the limitation of joint exercises of competences.[57] In accordance with the above, based on Article E) (2) FL and Article 4 (2) TEU, as a constraint on the joint exercise of powers within European integration, the HCC established "sovereignty control" and "identity control" (protection of the constitutional identity of Hungary).[58] In this context, the HCC essentially declared and strengthened the consensus on constitutional identity in Hungarian academic literature, when it states that the HCC is the supreme guardian of the protection of constitutional self-identity.[59] However, following this declaration of principle, the HCC notes that "the direct subject of sovereignty- and identity control is not the legal act of the Union or its interpretation, therefore the Court shall not comment
- 43/44 -
on the validity, invalidity or the primacy of application of such Union acts."[60]
In Decision 26/2020. (XII. 2.) AB, the HCC systematically examined the conditions under which the constitutional courts of Member States examine the constitutionality of the initiation of preliminary ruling proceedings.[61] In this context, HCC examined the case law of the German Federal Constitutional Court,[62] the Austrian Constitutional Court,[63] the Slovak Constitutional Court,[64] the Czech Constitutional Court[65] and the Slovenian Constitutional Court.[66] The HCC noted that the competence of the HCC to initiate preliminary ruling proceedings can also be deduced from the interpretation of the FL, in particular, if there was a risk of restricting Hungary's inalienable right to dispose of its territorial unit, population, state form and state system or the fundamental rights and freedoms based on the Article E) (2) of the FL. In assessing the issue, the HCC considered the practice of the German Federal Constitutional Court - mutatis mutandis - to be relevant.[67] In its decision, with regard to the preliminary ruling procedure, the HCC stated that it could be considered as part of the institutionalized European judicial cooperation. The HCC also stated, that the TFEU makes the preliminary ruling procedure mandatory in certain cases, and this creates a necessary dialogue between the court of a Member State applying EU law and the CJEU.[68] The HCC referred to the 22/2016. (XII. 5.) AB and noted that it "considers the constitutional dialogue within the European Union to be of highlighted importance." In the Decision 26/2020. (XII. 2.) AB, besides the wide range of foreign case law, the HCC also referred to the jurisprudence of the CJEU, namely the C-283/81 CILFIT case.[69]
The HCC referred to the Decision 2/2019. (III. 5.) AB (examined above) as well, which decision stated that both the Union law and the national legal system based on the FL aim to carry out the objectives specified in Article E) (1). With regard to this, "the creation of European unity", the integration, sets objectives not only for the political bodies but also for the courts and the HCC, defining the harmony and the coherence of legal systems as constitutional objectives that follow from "European unity". To achieve the above - continues the HCC in the decision -, the laws and the FL should be interpreted - as far as possible - in a manner to make the content of the norm comply with the law of the EU.[70] ■
NOTES
[1] The text of the FL is available in English: http://njt.hu/translated/doc/TheFundamentalLawofHungary_20201223_FIN.pdf
[2] The text of the HCCA is available in English: http://hunconcourt.hu/act-on-the-cc/
[3] The Rules of Procedure is available in English: hunconcourt.hu/rules-of-procedure/
[4] Decision 26/2020. (XII. 2.) AB, Reasoning [24].
[5] The petitions refer to CJEU practice in 137 cases during the same period.
[6] The petitions refer to ECtHR practice in 107 cases during the same period in which cases, however, the HCC did not consider the reference to ECtHR practice to be reasonable. Some of the most significant decisions in which the HCC has examined or relied on the case law of the ECtHR are available in English: Decision 1/2019 (II.13.) AB on the case of pouring paint on a Soviet memorial, see: http://hunconcourt.hu/uploads/sites/3/2019/07/1_2019_en_final.pdf; Decision 30/2017 (XI.14.) AB on annulling certain provisions of the Act on Public Employment and on the Amendment of Acts Connected to Public Employment (The summary of the decision is available in the CODICES, see: www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/hun/hun-2017-3-002); Decision 13/2016 (VII.18.) AB on the ban on protesting in front of the Prime Minister's house (The summary of the decision is available in the CODICES, see: www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/hun/hun-2016-2-003); Decision 34/2014 (XI.14.) AB on the consumer forex based loans (The summary of the decision is available in the CODICES, see: www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/hun/hun-2014-3-010)
[7] Decision 61/2011. (VII. 13.) AB, Decision 30/2015. (X. 15.) AB, Decision, 22/2016. (XII. 5.) AB, Decision 2/2019. (III. 5.) AB, Decision 26/2020. (XII. 2.) AB.
[8] The full text of the decision is available in English: http://hunconcourt.hu/uploads/sites/3/2018/07/dec-on-unified-patent-court.pdf
[9] The brief summary of the decision is available: www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm
[10] Decision 26/2020. (XII. 2.) AB, Decision 22/2020. (VIII. 4.) AB, Decision 13/2020. (VI. 22.) AB, Decision 2/2019. (III. 5.) AB, Decision 3332/2018. (X. 26.) AB, Decision 6/2018. (VI. 27.) AB, Decision 3312/2017. (XI. 30.) AB, Decision 29/2017. (X. 31.) AB,Decision 22/2016. (XII. 5.) AB , Decision 30/2015. (X. 15.) AB, Decision 36/2014. (XII. 18.) AB, Decision 4/2013. (II. 21.) AB, Decision 61/2011. (VII. 13.) AB.
[11] Decision 22/2016. (XII. 5.) AB, Decision 2/2019. (III. 5.) AB, Decision 3/2019. (III. 7.) AB.
[12] Decision 26/2020. (XII. 2.) AB, Decision 3/2020. (I. 3.) AB.
[13] Cf.: Decision 26/2020. (XII. 2.) AB, Decision 22/2016. (XII. 5.) AB, Decision 61/2011. (VII. 13.) AB.
[14] Cf.: Decision 22/2016. (XII. 5.) AB, Reasonig [33].
[15] The English version of the decision is available in the following link: http://hunconcourt.hu/uploads/sites/3/2019/05/3_2019_en_final.pdf
[16] The Hungarian Criminal Code is available in English: http://njt.hu/translated/doc/J2012T0100P_20200331_FIN.PDF
[17] The decision is available in English: www.conseil-constitutionnel.fr/en/decision/2018/2018717_718QPC.htm
[18] Cf. Decision 3/2019. (III. 7.) AB, Reasoning [84].
[19] Decision 3/2019. (III. 7.) AB, Reasoning [84].
[20] The English version of the decision is available in the following link: http://hunconcourt.hu/uploads/sites/3/2019/03/2_2019_en_final.pdf
[21] Cf. Decision 2/2019. (III. 5.) AB, Reasoning [7].
[22] The arguments and detailed reasons given by the petitioner are set out in Reasoning [4]-[6] of the decision.
[23] About the position of EU law in the case law of the HCC between 2012 and the current examined decision see: Sulyok Márton - Kiss Lilla Nóra: In Unchartered Waters? The Place and Position of EU Law and the Charter of Fundamental Rights in the Jurisprudence of the Constitutional Court of Hungary. Hungarian Yearbook of International Law and European Law 2019/7 395-417, 397-402.
[24] Decision 2/2019. (III. 5.) AB, Reasoning [21].
[25] Cf. BVerfGE 73, 339, 368.
[26] Cf. BVerfGE - 2 Bvr 2735/14, 37.
[27] The full text of the decision is available in English: http://hunconcourt.hu/uploads/sites/3/2018/06/6_2018_en_final.pdf
[28] The HCC also cited Resolution 2048 (2015) of the Parliamentary Assembly of the Council of Europe on Discrimination against transgender people in Europe and a judgment of the Court of Justice of the European Union.
[29] Decision 6/2018. (VI. 27.) AB, Reasoning[50]-[56]
[30] Hämäläinen v. Finnland, Judgement of 16 July 2014, no. 37359/09.
[31] While a person's affiliation with a particular gender is initially determined by outward physical characteristics at the time of birth, a person's gender affiliation is not limited to the above and it is dependent on his/her psychological make-up. If a person's perceived affiliation with a particular gender contradicts his/her outward sexual characteristics, respect for human dignity and the fundamental right to protection of personhood require that the transsexual person should be allowed to have his/her physical and mental make-up aligned, including both the surgery and its legal implications concerning personality rights. Cf. Decision 6/2018. (VI. 27.) AB, Reasoning [54] and Decision 1 BvL 10/05, 27 May 2008 of the Federal Constitutional Court, paragraphs 37-38.
[32] The full text of the decision is available in English: http://hunconcourt.hu/uploads/sites/3/2020/06/3_2020_en_final.pdf
[33] The brief summary of the decision is available: http://hunconcourt.hu/translations-summaries?ev=2020
[34] Decision 3/2020. (I. 3.) AB, Reasoning [69].
[35] The full text of the Decision is available in English: http://hunconcourt.hu/uploads/sites/3/2017/11/en_22_2016-1.pdf
[36] Decision 143/2010. (VII. 14.) AB.
[37] According to Article R (3) of the Fundamental Law: "The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal contained therein and the achievements of our historical constitution."
[38] Decision 22/2016. (XII. 5.) AB, Reasoning [64].
[39] Decision 22/2016. (XII. 5.) AB, Reasoning [63].
[40] Decision 22/2016. (XII. 5.) AB, Reasoning [1]-[21].
[41] Decision 22/2016. (XII. 5.) AB, Reasoning [29].
[42] Decision 22/2016. (XII. 5.) AB, Reasoning [33]-[45].
[43] Decision 22/2016. (XII. 5.) AB, Reasoning [46].
[44] Decision 22/2016. (XII. 5.) AB, Reasoning [47]-[49].
[45] Decision 22/2016. (XII. 5.) AB, Reasoning [34].
[46] Decision 22/2016. (XII. 5.) AB, Reasoning [35].
[47] Decision 22/2016. (XII. 5.) AB, Reasoning [36].
[48] Decision 22/2016. (XII. 5.) AB, Reasoning [37].
[49] Decision 22/2016. (XII. 5.) AB, Reasoning [38].
[50] Decision 22/2016. (XII. 5.) AB, Reasoning [39].
[51] Decision 22/2016. (XII. 5.) AB, Reasoning [40].
[52] Decision 22/2016. (XII. 5.) AB, Reasoning [41].
[53] Decision 22/2016. (XII. 5.) AB, Reasoning [42].
[54] Decision 22/2016. (XII. 5.) AB, Reasoning [43].
[55] Decision 22/2016. (XII. 5.) AB, Reasoning [44].
[56] Decision 22/2016. (XII. 5.) AB, Reasoning [49].
[57] Decision 22/2016. (XII. 5.) AB, Reasoning [53].
[58] Decision 22/2016. (XII. 5.) AB, Reasoning [54].
[59] Decision 22/2016. (XII. 5.) AB, Reasoning [55].
[60] Decision 22/2016. (XII. 5.) AB, Reasoning [56].
[61] Decision 26/2020. (XII. 2.) AB, Reasoning [30].
[62] BVerfGE 82, 159 <194>, 1 BvR 1159/08 -, Rn. 4.
[63] VfGH 27. 06. 2012, 2.5.; U 330/12; VfGH 11. 12. 1995, B 2300/95.
[64] III. ÚS 388/2010, II. ÚS 381/2018, II. ÚS 792/2016.
[65] II. ÚS 4225/16, 26 September 2017, ÚS 1009/08, 8 January 2009, Pl. ÚS 50/04, 8 March 2006.
[66] Up-1056/11, 21 November 2013; Up-561/15, 16 November 2017.
[67] Cf. Decision 26/2020. (XII. 2.) AB, Reasoning [26], and BVerfGE 134, 366, BVerfGE 142, 123; BVerfGE 146, 216, BVerfG, Urteil des Zweiten Senats vom 05. Mai 2020 - 2 BvR 859/15.
[68] Decision 26/2020. (XII. 2.) AB, Reasoning [24].
[69] Decision 26/2020. (XII. 2.) AB, Reasoning [2].
[70] Decision 2/2019. (III. 5.), Reasoning [36], Decision 26/2020. (XII. 2.) AB, Reasoning [24].
Lábjegyzetek:
[1] The Author is counsel, senior lecturer; Constitutional Court of Hungary, Faculty of Law and Political Sciences, University of Szeged.
Visszaugrás
