Kinga Zakariás: The extent of constitutional review of judicial decisions in German and Hungarian Constitutional Court Practice[1] (ABSz, 2025. Különszám, 45-54. o.)

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]

With the entry into force of the Fundamental Law on the 1st of January 2012, the possibility for anyone to submit a petition for an ex post abstract review of the law was abolished, and pursuant to Article 24 (2) e) of the Fundamental Law, the Constitutional Court reviews the conformity of legislation with the Fundamental Law at the initiative of a defined group of petitioners, the Government, a quarter of the members of Parliament, the President of the Curia, the Prosecutor General or the Commissioner for Fundamental Rights.

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The Fundamental Law - following the German model - redefined the powers of the Constitutional Court, which many considered to be 'one-sided': it introduced the constitutional complaint against a judicial decision [Article 24 (2) d)]. The Fundamental Law has retained and, at the same time, incorporated into the Constitution, the old constitutional complaint for review of the law applied in an individual case [Article 24 (2) c)]. In addition, the Act CLI of 2011 on the Constitutional Court (hereinafter: HCC Act) has created the possibility of an exceptional constitutional complaint directly against a statute [Section 26 (2)]. In contrast to actio popularis, the HCC Act made the substantive adjudication of all three types of complaint conditional on the person concerned being affected [HCC Act Section 56 (2)].

The Fundamental Law has made the constitutional complaint against a judicial decision the most important competence of the Constitutional Court. According to Article 27 of the CC Act, persons or organisations affected by judicial decisions contrary to the Fundamental Law may submit a constitutional complaint to the Constitutional Court if the decision made concerns the merits of the case or another decision terminating the judicial proceedings, within sixty days of the notification of the decision complained of, provided that the petitioner has already exhausted all remedies.

This shift from the objective protection of the constitutional order to the subjective protection of fundamental rights represented a significant change in the relationship between the Constitutional Court and ordinary courts.

In the context of constitutional complaint proceedings against judicial decisions, both the German Federal Constitutional Court and the Hungarian Constitutional Court review final judicial decisions and annul them if found unconstitutional. This constitutional court jurisdiction, therefore, inevitably causes tension in the relationship between the constitutional court and the ordinary courts. Thus, it is important to clarify what the constitutional court review covers in practice and what it should cover in view of the legal status of the constitutional court and the function of constitutional complaints.

In my study, I aim to develop a dogmatically correct framework for the constitutional review of judicial decisions within the context of comparative legal analysis, based on the conceptual frameworks developed in German legal scholar literature.[6]

II. Limiting the extent of constitutional review in German and Hungarian practice

Section 90 (1) of the German Constitutional Court Act (hereinafter: GCC Act) limits the extent of judicial review to violations of fundamental rights and similar constitutional rights.[7] According to Section 27 of the HCC Act, constitutional complaints may be lodged on the grounds of a violation of a right enshrined in the Basic Law for the Federal Republic of Germany (hereinafter: Basic Law). However, given the abstract nature of fundamental rights, it is difficult in practice to distinguish between fundamental rights and 'simple rights' (einfaches Recht).