The constitutional protection of property has been continuously shaped by the 35 years of practice of the Constitutional Court. Initially, the Constitutional Court had to clarify whether the right to property could be considered a fundamental right at all. In its later practice, the Constitutional Court focused on defining the scope of constitutional protection of property, in the context of which it pointed out that the constitutional concept of property does not cover the civil law concept of property. The Constitutional Court laid down the theoretical basis for constitutional protection of property in Decision 64/1993. (XII. 22.) AB, in which it stated that the Constitution grants fundamental rights protection to the right to property as the traditional material basis of individual autonomy of action. The Constitutional Court currently considers this to be the theoretical starting point in its practice and examines whether the property rights in question fall within the scope of constitutional property protection. The Constitutional Court's understanding of property rights is consistent with the practice of the European Court of Human Rights, which the Constitutional Court has always regarded as a benchmark in its practice.
Keywords: right to property, constitutional protection of property, legitimate expectations
The right to property was incorporated into the constitutional system by Section 7 of Act XL of 1990 on the Amendment of the Constitution of the Republic of Hungary.[2] According to the ministerial explanatory memorandum to the Act, "the rule declaring the right to property fills a long-standing gap in the law". However, the fundamental nature of the right to property was not clear after the entry into force of the amended Article 13 of the Constitution[3] due to its placement in the regulatory system. The Constitutional Court laid down the theoretical foundations of constitutional protection of property in its Decision 7/1991. (II. 28.) AB. In this decision, it pointed out that "although the Constitution does not regulate the right to property in Chapter XII, the so-called fundamental rights chapter, but declares it separately from civil liberties, it clearly grants it constitutional protection as a fundamental right even if certain laws restrict partial property rights in certain circles".[4]
The Constitutional Court thus made it clear early on in its practice that the right to property is protected as a fundamental right. Accordingly, the current constitutional regulation places the right to property in the chapter of the Fundamental Law entitled 'Freedom and Responsibility' and regulates it in Article XIII[5] .
The fundamental nature of the right to property entails several specific criteria that affect the content of the fundamental right and the framework of constitutional protection. First and foremost, it should be noted that, unlike other fundamental rights, property is not a given, but can only be defined as a 'legislative decision'[6] . This was also emphasised by the legislator in its explanatory memorandum to Article XIII (1) of the Fundamental Law. According to this, "[t]he right to property, unlike many other fundamental rights, does not denote a natural state that is a given, but exists only in a specific social context, within the framework of legal regulation by the State, and subject to its preconditions."[7]
Due to this characteristic of the right to property, constitutional protection requires that it be based on an unquestionable legal title as defined by law. The Constitutional Court emphasised this point in its decision 37/1994. (VI. 24.) AB of the Constitutional Court of Hungary: "Only those assets are protected by the
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fundamental right under Article 13 (1) of the Constitution which can be clearly established as falling within the scope of the legal elements of the assets to be transferred to the ownership of the parties concerned by law."[8]
It is therefore clear that the Constitutional Court only examines whether the right to property has been infringed in the case of an 'undoubted legal title'[9] , i.e. in the absence of legal regulations establishing an undoubted legal title, the right to property cannot be infringed. Consequently, the right to property inherently contains a contradiction that necessarily affects the content of constitutional legal protection, in that legal protection is aimed at excluding unlawful state intervention in private property relations, the subject of legal protection is determined by the legislator through the establishment of legal regulations governing property relations[10]. Consequently, when examining a violation of the right to property, it is particularly important to consider the point in time at which the violation occurred, because the right to property can only be examined in the context of the material relationships existing at a given point in time. The violation of fundamental rights by state intervention must be examined in relation to these circumstances existing at a given point in time. In this context, the essence of the constitutional protection of property lies in the fact that the State cannot arbitrarily deprive a person of their lawfully acquired property.
Accordingly, the Constitutional Court emphasises that "[t]he legal concept and content of property is generally determined not directly by the Fundamental Law, but by other legal norms. However, the scope and content of the rights protected by the Fundamental Law must be determined on the basis of the Fundamental Law. This contradiction poses a difficulty in defining the rights protected as property. The contradiction can be resolved by the fact that the Fundamental Law protects specific rights existing at a specific point in time, recognised as fundamental rights to property with the content defined by law: based on the fundamental right to property, the legislature is generally obliged to respect those rights which are components of the fundamental right to property in the constitutional sense of the term".[11] Article XIII of the Fundamental Law therefore protects acquired property against confiscation or restriction.[12]
Among the specific characteristics of the right to property, it should also be emphasised that the object of property is generally replaceable. This was also pointed out by the Constitutional Court, which stated: "[t]he nature of constitutional protection is determined by the specific characteristic of property - not found in other fundamental rights - that it is generally replaceable in terms of its constitutionally protected role. The subject of constitutional protection is primarily the object of ownership, i.e. the substance of property. However, the Constitution itself allows for expropriation in the public interest, thereby indicating that the limit of the constitutional guarantee of property is the securing of the value of the property."[13]
Among the specific characteristics of the right to property, it is also necessary to mention that legal protection extends only to acquired property, because the object of property - material assets - is only available to a limited extent.[14] This is why the right to property does not include the acquisition of property, i.e. no one has a subjective right to acquire property.[15] Accordingly, the Constitutional Court emphasised that "the protective function and role extends only and exclusively to the protection of already acquired property rights, but not to pending claims that have not yet been adjudicated".[16]
The criteria for the right to property referred to above necessarily have an impact on all aspects of the constitutional protection of property. We will examine this issue in more detail below. In this context, we will examine the scope of constitutional property protection.
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Initially, the Constitutional Court did not distinguish between the civil law and constitutional law concepts of property, but considered property rights - in accordance with their civil law content - to be constitutional rights. Accordingly, in Decision 7/1991. (II. 28.) AB of the Constitutional Court of Hungary, it pointed out: "[the] right of disposal is a partial right belonging to property rights, meaning the freedom to decide on property rights. However, the restriction of the right of disposal only entails the restriction of the right of ownership itself as a constitutional right, and is therefore only unconstitutional if it is unavoidable, i.e. if it is done without compelling reasons, and if the severity of the restriction is disproportionate to the objective to be achieved by the restriction."[17]
The Constitutional Court first addressed the question of whether the constitutional concept of property rights encompasses other property rights in addition to property rights in the civil law sense in its Decision 17/1992. (III. 30.) AB of the Constitutional Court of Hungary. In this decision, it specifically examined rights in rem and pointed out in principle that "Article 13 (1) of the Constitution applies not only to property rights but also to all related property rights. A comparison of laws also shows that several foreign constitutional courts include property rights within the scope of constitutional protection of property. In line with this, the Constitutional Court considers the provisions of the Constitution relating to the protection of property to be a fundamental right that both the Constitutional Court and the courts may apply to the protection of other property rights of a material nature." In light of these findings, the Constitutional Court stated in the case in question: "[the] right of use is a limited and alienable right in rem, which is an absolute (in rem) right obtained from the owner and has an independent existence without this independence affecting its connection to the right of ownership. The right of use is therefore an independent partial right of ownership, which in terms of its content is a 'share' of the right of ownership that has monetary value."[18]
The Constitutional Court laid down the theoretical basis for the constitutional content of the right to property in its decision 64/1993. (XII. 22.) AB of the Constitutional Court of Hungary. In this decision, the Constitutional Court pointed out the following: "[t]he scope and manner of constitutional protection of property does not necessarily follow civil law concepts. There is no civil law equivalent to necessary and proportionate restrictions or the essential content of the right to property. The partial rights of ownership - which, even under civil law, do not always belong to the owner and in some cases do not belong to him by law - cannot be identified with the essential content of the right to property enjoying constitutional protection." The Constitutional Court therefore emphasised that "the scope of property protection under the Constitution cannot be equated with the abstract protection of property under civil law, i.e. neither with the partial rights of possession, use and disposal, nor with its definition as a negative and absolute right".[19]
In its decision, the Constitutional Court laid down the essence of the constitutional content of the right to property. According to this, "[t]he Constitution grants fundamental rights protection to the right to property as the traditional material basis of individual autonomy of action. Constitutional protection must follow changes in the social role of property in such a way that it can continue to fulfil the same protective function. Therefore, when it comes to the protection of individual autonomy, the fundamental right to property protection also extends to property rights that have taken over this former role of property, as well as to public law-based entitlements (e.g. social security claims). On the other hand, however, the social constraints of property allow for far-reaching restrictions on owner autonomy under the constitution."[20] In the practice of the Constitutional Court, a functional approach to property rights has thus become predominant, i.e. "the protection of property applies to all property rights that are functionally capable of replacing the role of property in ensuring personal autonomy"[21],[22].
In its later decisions on the constitutional content of property based on the above principles, the Constitutional Court emphasised that the right to property is related to "one's own property or value-creating work".[23] Consequently, in its practice based on this approach, the Constitutional Court has narrowed the scope of constitutional protection of property, because it did not recognize the protection of property for all property rights that are functionally capable of replacing the role of property in ensuring personal autonomy. The central element of the Constitutional Court's understanding of property rights is therefore that the right to property
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protects individual autonomy in relation to one's own assets and value-creating work.
As mentioned above, in its early practice, the Constitutional Court only protected civil law property rights. Thus, in its Decision 1256/H/1996 AB of the Constitutional Court of Hungary, the Constitutional Court stated that the rights of use, possession and disposal are partial rights belonging to property rights, which constitute the content of property rights and represent power over and enjoyment of the thing".[24] Accordingly, in its Decision 18/1992. (III. 30.) AB of the Constitutional Court of Hungary, referring to the explanations given in decision 7/1991. (II. 28.) AB of the Constitutional Court of Hungary, it pointed out that the right of disposal is a partial right belonging to the right of ownership, which includes the freedom to make decisions about the property. At the same time, the Constitutional Court emphasised that "the right of ownership is not an unlimited right. Article 8 (2) of the Constitution allows for the restriction of fundamental rights by law." In this regard, it pointed out in the case in question that "the prohibition of disposal of property rights, i.e. the complete restriction of the right of disposal, is clearly closer to infringing the essential content than granting a right of pre-emption in favour of a third party."[25] In connection with the scope of protection of the right to property, the Constitutional Court emphasized in its initial practice that "the right of possession and use are partial rights belonging to the right of ownership, which constitute the content of the right of ownership and represent power over and enjoyment of the thing; the power that can be exercised over a thing."[26]
The Constitutional Court first extended the constitutional concept of property to include property rights in rem.[27] Subsequently, in its Decision 64/1993. (XII. 22.) AB of the Constitutional Court of Hungary, it established the constitutional protection of all property rights with the restriction that the person concerned may invoke the protection of property if the property right is functionally capable of replacing the function of property in ensuring personal autonomy.
In its subsequent practice, the Constitutional Court included individual property rights within the scope of protection of the right to property, regardless of whether they were of a private or public law nature. Accordingly, it extended constitutional protection of property to individual social security claims. In its Decision 43/1995. (VI. 30.) AB of the Constitutional Court of Hungary, it pointed out that "the protection of property does not lose its connection with one's own property or value-creating work in the field of social security either." At the same time, the Constitutional Court emphasised that a distinction must be made between the more comprehensive protection of 'insurance' services paid for with one's own contributions and the lesser protection of welfare-type benefits.[28] The main consideration for protection is that "it may extend as long as the service performs the same function that material property would serve, from which it follows that this characteristic cannot be eliminated."[29] Consequently, in the practice of the Constitutional Court, property protection has also extended to property rights that have taken over this former role of property, as well as to public law-based rights, and therefore the Constitutional Court has assessed the constitutionality of the reduction or termination of insurance-type social security services in accordance with the criteria of property protection.[30]
The Constitutional Court extended constitutional property protection to "established and practised regular gainful activity" that provides a regular income.[31] Accordingly, the Constitutional Court also included the right to operate an independent medical practice within the scope of constitutional protection of property.[32]
Thus, according to the practice followed by the Constitutional Court since 1992, the protection of fundamental property rights has been extended to property rights that are not classified as property under ci-
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vil law, and this protection has been extended beyond the originally protected property rights of a material nature.
According to the practice of the Constitutional Court based on Article XIII (1) of the Fundamental Law: 'The legal concept and content of property is generally not defined directly by the Fundamental Law, but by other legal norms. However, the scope and content of the rights protected by the Fundamental Law must be determined on the basis of the Fundamental Law."[33] The Fundamental Law protects the rights defined by law in the context of constitutional property by allowing the Constitutional Court to consider other fundamental rights and constitutional values in conjunction with property rights when deciding on individual cases. It follows that Article XIII of the Fundamental Law protects already acquired property and, in exceptional cases, property expectations.[34]
In connection with Article XIII of the Fundamental Law, the Constitutional Court typically emphasises that "the extension of constitutional protection of property rights to rights of material value other than civil law property rights is based on the function of property in protecting individual autonomy."[35] The constitutional protection of property is therefore essentially the protection of certain property rights (statuses) as fundamental rights.[36] Although the Constitutional Court continues to maintain in its practice that constitutional protection of property is related to "one's own property and value-creating work," it has not recognised constitutional protection of property in connection with the withdrawal of financial compensation (essentially: severance pay).[37]
Following the entry into force of the Fundamental Law, the Constitutional Court maintained its practice whereby constitutional protection of property also extends to property rights that are 'property-like' in terms of their function. In this context, it confirmed its practice that constitutional protection of property extends to "services related to social security relationships"[38] , but only if the conditions for the determination and payment of the service are laid down by law.[39]
In its Decision 33/2015. (XII. 3.) AB of the Constitutional Court of Hungary, the Constitutional Court also pointed out that freedom of contract is closely linked to the right to property protected by the Fundamental Law. Article XIII (1) of the Fundamental Law guarantees freedom of ownership and the protection of the private autonomy of owners. One of the partial rights of ownership is the owner's freedom of "disposal", of which freedom of contract is a necessary element.[40] However, it does not follow from these findings of the Constitutional Court that freedom of contract enjoys fundamental rights protection under Article XIII (1) of the Fundamental Law. In its decision, the Constitutional Court clearly emphasised that freedom of contract is not a fundamental right, but enjoys the protection of the Fundamental Law as an independent constitutional right.[41] For this reason, the Constitutional Court ruled that freedom of contract, as an independent constitutional right, cannot be considered a property right covered by constitutional protection of property.[42]
With regard to the relationship between the right to property protected by Article XIII of the Fundamental Law and the right of pre-emption, the Constitutional Court stated that the right of pre-emption is not unconstitutional as long as it does not lead to the emptying of property rights on the one hand or the impossibility of freedom of contract on the other. The Constitutional Court pointed out that no one has a subjective right to establish a right of pre-emption in law and that it should be absolute and take precedence over all others.[43] Therefore, no one has a constitutional right to acquire land, and in general, there is ample room for freedom of contract with regard to the acquisition of arable land.[44] The Constitutional Court pointed out that the right of pre-emption clearly limits the fulfilment of the buyer's interests, but does not limit those of the seller. This is relevant in constitutional law insofar as the right to property guaranteed in Article XIII of the Fundamental Law does not protect the buyer's intention to purchase, but does protect the seller's
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intention.[45] The Constitutional Court therefore did not find that fundamental rights protection could be established.[46]
Property claims are also not covered by constitutional property protection. Therefore, if the person concerned is in the process of acquiring property, but even if they have applied for the registration of a sale with retention of title, they cannot invoke the right to property guaranteed in Article XIII of the Fundamental Law.[47] The claimant's claim against the debtor is also outside the scope of property protection.[48] At the same time, the Constitutional Court confirmed its previous practice that the protection of possession and neighbours' rights, as well as their enforceability, enjoy property protection based on Article XIII of the Fundamental Law.[49]
In addition to the above, the Constitutional Court extended the scope of constitutional property protection to, among other things, legal relationships related to financial leasing,[50] trademarks,[51] and to the use of a football team's coat of arms protected by trademark[52]. In another case, the Constitutional Court pointed out that making it more difficult to view a work of art cannot be interpreted within the scope of constitutional property protection, because the protection of the right to property does not extend to all partial rights arising from copyright. The fundamental right to the integrity of a work cannot be identified within the framework of the right to property, as its protection is linked to personal rather than financial interests.[53] This personal right is the artist's personal interest, which is intended to guarantee the preservation of the unique and individual characteristics of the work, such as the free disposal of the work of art, i.e. the protection of artistic expression, which can be interpreted as part of the freedom of artistic life and as a personal right.[54] The protection of the unity (integrity) of the work therefore does not fall within the scope of protection under the Fundamental Law.
The Constitutional Court did not recognise any 'infringement'[55] of the right to property in connection with the security deposit either. A security deposit is "an ancillary obligation securing a contract, the purpose of which is, on the one hand, to increase the obligor's willingness to perform and, on the other hand, to facilitate the enforcement of claims: in the event of non-performance or inadequate performance of the contract, it ensures that the obligee's claim is satisfied. The security deposit provides the entitled party with collateral (or even a direct right of satisfaction) - i.e. it is a form of collateral security - but its most important feature is that it is an ancillary obligation linked to a basic obligation." The Constitutional Court emphasised that "despite its material nature, a security deposit is a contractual guarantee which does not create an ownership position and does not qualify as a property right 'in the nature of ownership' in terms of its function, which would be covered by constitutional protection of property rights".[56]
In connection with Article XIII of the Fundamental Law, the Constitutional Court typically emphasises that "the extension of constitutional protection of property rights to other property rights beyond civil law property rights is based on the function of property in protecting individual autonomy."[57] The constitutional protection of property is therefore, in essence, the fundamental protection of certain property rights (statuses).[58]
In the practice of the Constitutional Court, not only existing property but also, in exceptional cases, the possibility of acquiring rights may be protected by the Constitution as an legitimate expectation.[59] In the broadest sense, legitimate expectation of ownership is a legal situation in which there is a possibility of acquiring a specific right, but this requires the fulfilment of additional conditions or other circumstances. In the case of an expectation, therefore, we cannot speak of a subjective right, and consequently of a claim. In the practice of the Constitutional Court, the protection of an expectation is based on "how close it is to 'fulfil-
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ment', i.e. to the opening of a subjective right to the service".[60]
Following the entry into force of the Fundamental Law, the Constitutional Court has only recognised the constitutional protection of the "expectancy situation" in a very limited number of cases. In one case, the Constitutional Court pointed out that "according to its consistent practice, economic activity alone is not protected by Article XIII of the Fundamental Law. The fact that the petitioner had been engaged in extensive textbook publishing and distribution activities for a long period of time, from which he had derived regular income, does not mean that the economic activity in question can be regarded as acquired property or a constitutionally protected property expectation and, as such, would be protected under Article XIII of the Fundamental Law. Similarly, the fundamental right to property enshrined in the Fundamental Law does not guarantee the return on the investments and assets necessary for businesses and entrepreneurs to carry out their economic activities, nor does it guarantee their market value.[61] According to the Constitutional Court, the hope of future profits from business activities and the expected profits arising therefrom cannot be considered property rights recognised and protected by constitutional property rights.[62]
Based on the above practice, the Constitutional Court found that, on the basis of the final official licences (5-year fixed-term licences authorising metal trading activities and licences authorising waste management activities), the economic activities carried out by the petitioners over a longer period of time within the scope of the activities specified in the licences (falling within the scope of institutional waste management activities) over a longer period of time on the basis of the final official licences (5-year fixed-term licences authorising metal trading activities and licences authorising waste management activities) did not fall within the scope of constitutional property protection. The same applies to certain activities covered by official licences and to the final official licences themselves, which cannot be transferred, are revocable and cannot be considered as constitutionally protected property rights.[63] In another case, the Constitutional Court also pointed out that the status of liquidator, which expires every seven years and can only be renewed by a successful tender, and the regular income and profits derived from the resulting time-limited legal status, does not mean that this activity can be considered acquired property or an expectation arising from property rights.[64]
In its Decision 3209/2015. (XI. 10.) AB Decision 33/2015. (XII. 3.) AB of the Constitutional Court of Hungary, the Constitutional Court also pointed out that: "[t]he Constitutional Court's practice regarding legitimate expectations shows that the Constitutional Court has extended the protection of the fundamental right to property not to entitlements in general, but to entitlements under public law, entitlements to social security benefits, which are based on the consideration provided by the interested parties, i.e. the payment of contributions. Consequently, social security expectations are statutory entitlements, meaning that a violation of the fundamental right to property may arise in the case of entitlements based on legislation.[65] However, in a later decision, the Constitutional Court also included expectations based on a contract (financial leasing) within the scope of constitutional property protection, on the grounds that the lessee is not formally the owner (as the owner is not registered in the property register), but in terms of rights, it is entitled to partial civil property rights.[66]
The concept of 'possession' in Article 1 (1) of the First Protocol to the European Convention on Human Rights (hereinafter: ECHR)[67] has an autonomous meaning, which is not limited to the ownership of material property and is independent of the formal classification used in domestic law.[68] The starting point for the protection of human rights is that, in all cases, the lawfulness of interference with property rights existing at a given point in time under national law must be examined.[69] According to the practice of the Europe-
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an Court of Human Rights (hereinafter: ECtHR), the question to be examined is therefore whether the circumstances of the case as a whole conferred on the applicant a legal interest in a material right.[70] The protection of property under human rights law also applies to the existing assets of the person concerned and does not give rise to a right to acquire property.[71]
In the practice of the ECtHR, rights similar to property rights have existed in cases where the applicants concerned had built up a client base through their own work. The applicability of Article 1 of the First Protocol extends, inter alia, to professional methods, clientele and business value, as these are things of value which are in many respects of a private law nature and therefore constitute property, i.e. assets.[72] According to the ECtHR, operating a cinema for eleven years without interference from the authorities, resulting in the development of a clientele, constitutes property value.[73]
The fulfilment of compulsory payments, for example to a pension fund or social security system, gives rise to a property right protected under Article 1 of the First Protocol. The ECtHR has accepted in several cases that pension benefits may constitute property within the meaning of the Protocol.[74] According to the case law of the ECtHR, if the domestic legal conditions for the granting of a benefit or pension change and if, as a result of the change in conditions, the person concerned no longer fully meets the conditions, it may be necessary to examine the specific circumstances of the case, and in particular the nature of the change in requirements, in order to determine whether there is a sufficiently established substantive property interest under national law.[75]
The ECtHR has emphasised on several occasions in its case law that the Convention does not create a right to acquire property, but that, exceptionally, a legitimate expectation to acquire an asset may enjoy the protection of Article 1 of Protocol No. 1.[76] Therefore, if a property right exists in the form of a claim, the person who is entitled to the claim may be considered to have a legitimate expectation if that right has a sufficient basis in national law.[77] A legitimate expectation may be based on the fact that the applicant has good reason to believe that a planned investment will be carried out because the authority has granted the necessary authorisation and this has been recorded in the register.[78] However, no legitimate expectation arises if the correct interpretation and application of domestic law is disputed and the applicant's submissions are subsequently rejected by the national courts.[79]
In the practice of the ECtHR, the withdrawal of a licence to carry on a business also falls within the scope of property rights under Article 1 of the First Protocol to the Convention.[80] In this regard, the long-standing legislative withdrawal of a licence to sell tobacco products constitutes an interference with the right under Article 1 of the First Protocol[81], despite the harmful consequences of smoking facilitated by the retail sale of tobacco products.[82]
Based on the above, it is clear that the Constitutional Court's understanding of property rights has been continuously evolving over the past 35 years. In its early practice, the Constitutional Court made it clear that it protects the right to property as a fundamental right and that the constitutional concept of property does not cover the civil law concept of property. In its practice, the Constitutional Court laid down the theoretical basis for constitutional protection of property in Decision 64/1993. (XII. 22.) AB of the Constitutional Court of Hungary, in which it stated that the Constitution protects the right to property as a fundamental right, as it is the traditional material basis of individual autonomy of action. It later added that the right to property is related to one's own assets and value-creating work. The Constitutional Court currently considers this to be the theoretical starting point in its practice and, on this basis, examines whether the property
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rights in question fall within the scope of constitutional protection of property. The Constitutional Court's understanding of property rights is also consistent with the practice of the ECtHR, which the Constitutional Court has always regarded as a benchmark in its practice.
The Constitutional Court already declared in its Decision 64/1993. (XII. 22.) AB of the Constitutional Court of Hungary that its understanding of property protection is consistent with the case law of the ECtHR.[83] The Constitutional Court also pointed out that the ECHR did not originally include property among the rights and freedoms, but only later, in the first protocol, added the right to "peaceful enjoyment of possessions".[84]
Based on the above overview of the practice of the Constitutional Court and the ECtHR, it can be concluded that there are no significant differences in principle between the constitutional and human rights approaches to the protection of property. The Constitutional Court and the ECtHR treat property protection on the same theoretical basis: they start from an autonomous interpretation of property and extend the concept of property to all property rights that are functionally capable of replacing the function of property in ensuring personal autonomy. In addition, both the Constitutional Court and the ECtHR do not regard property as a natural freedom, which gives the State broad scope to restrict property in the public interest. However, in this matter, the positions of the Constitutional Court and the ECtHR sometimes lead to different conclusions, particularly with regard to the constitutional protection of legitimate expectations.
Overall, it can be concluded that the Constitutional Court's approach to the protection of property - in terms of conceptual issues of protection - has followed international human rights standards over the past 35 years. ■
NOTES
[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] According to these provisions of the Constitution, "The Republic of Hungary shall guarantee the right to property"; and "Property may be expropriated only in exceptional cases and in the public interest, in accordance with the law and in a manner regulated by law, with full, unconditional and immediate compensation" [Constitution, Article 13 (1)-(2)].
[3] 25 June 1990.
[4] ABH 1991, 22, 25.
[5] According to paragraph 1 of this provision, "[e]veryone has the right to property and inheritance, as well as to payment in cash. Property entails social responsibility."; while paragraph 2 provides that "[p]roperty may only be expropriated in exceptional cases and in the public interest, in cases and in a manner specified by law, with full, unconditional and immediate compensation."
[6] Attila Menyhárd: Dologi jog. Osiris, 2007. 329.
[7] See: Decision 34/2015. (XII. 9.) AB of the Constitutional Court of Hungary, Reasoning [81].
[8] ABH 1994, 238, 246.
[9] The existence of an unquestionable legal title is established if the legal title and scope of the acquisition of ownership can be determined beyond doubt. See: Decision 893/B/1994. AB of the Constitutional Court of Hungary, ABH 1996, 496, 500.
[10] For more details, see: Orsolya Salát - Pál Sonnevend: 13. § [A tulajdonhoz való jog], in András Jakab (ed.): Az Alkotmány kommentárja. Századvég, 2009. 486-488.
[11] Decision 25/2015. (VII. 21.) AB of the Constitutional Court of Hungary, Reasoning [55] (ECCN HU-0161).
[12] Decision 3115/2013. (VI. 4.) AB of the Constitutional Court of Hungary, Reasoning [34] (ECCN HU-0148); Decision 3276/2024. (VII. 24.) AB of the Constitutional Court of Hungary, Reasoning [49].
[13] Decision 64/1993. (XII. 22.) AB of the Constitutional Court of Hungary, ABH 1993, 373, 379.
[14] The Constitutional Court refers to this specific characteristic of property in relation to arable land. According to this, "the specific natural and economic characteristics of land ownership: namely the finite nature of land (as a natural resource, land is available in limited quantities and cannot be reproduced or replaced by anything else), its indispensability, its renewable capacity, its particular sensitivity to risk and its low rate of return embody the special social constraints of land ownership. These circumstances may justify the enforcement of public interest over property rights." [Decision 35/1994. (VI. 24.) AB of the Constitutional Court of Hungary, ABH 1994, 200, 201.].
[15] Decision 17/2015. (VI. 5.) AB of the Constitutional Court, Reasoning [67] (ECCN HU-0240); Decision 3021/2014. (II. 11.) AB of the Constitutional Court, Reasoning [14] This issue is of particular importance in connection with the protection of legal expectations.
[16] Decision 4/2016. (III. 1.) AB of the Constitutional Court, Reasoning [23]; Decision 3048/2016. (III. 22.) AB of the Constitutional Court, Reasoning [29]; Decision 3115/2013. (VI. 4.) AB of the Constitutional Court, Reasoning [34] (ECCN HU-0148).
[17] ABH 1991, 22, 26.
[18] ABH 1992, 104, 108.
[19] ABH 1993, 373, 379.
[20] ABH 1993, 373, 379.
[21] Tamás Lábady: A tulajdonvédelem változása az Alkotmánybíróság gyakorlatában, in Botond Bitskey (ed.): Tíz éves az Alkotmánybíróság. n.p. 2000. 164.
[22] In line with this, the Constitutional Court also protected the property of churches, public bodies and, in particular, local governments on the grounds that it was the basis of their autonomy [Decision 4/1993. (II. 12.) AB of the Constitutional Court of Hungary, ABH 1993, 66, 72.].
[23] Decision 43/1995. (VI. 30.) AB of the Constitutional Court of Hungary, ABH 1995, 188, 195. Detailed analysis of the decision: Gábor Kecső: Decision 43/1995. (VI. 30.) AB - Bokros-csomag, in: Fruzsina Gárdos-Orosz - Kinga Zakariás (eds.): Az Alkotmánybíróság 100 elvi jelentőségű határozata 1990-2020. Társadalomtudományi Központ és HVG-ORAC, 2021. 369-382.
[24] ABH 1996, 796.
[25] ABH 1992, 110, 111.
[26] Decision 2299/B/1991. AB of the Constitutional Court of Hungary, ABH 1992, 570, 571.
[27] Decision 17/1992. (III. 30.) AB of the Constitutional Court of Hungary, ABH 1992, 104, 108.
[28] The Constitutional Court also pointed out that the person concerned is not left without protection even in cases where the insurance element does not play a role or where its role has definitively ceased. In such cases, the constitutionality of interference with social benefits must be decided not on the basis of the fundamental right to property, but on the basis of the requirements of legal certainty, which is the most important component of the rule of law. The Constitutional Court has explained the content of legal certainty in numerous decisions.
A significant proportion of these are judgments which, in connection with the entry into force of legislation, define the preparation period for the application of new provisions as a constitutional requirement [Decision 7/1992. (I. 30.) AB of the Constitutional Court of Hungary, ABH 1992, 47; Decision 25/1992. (IV. 30.) AB of the Constitutional Court of Hungary, ABH 1992, 132.; Decision 28/1992. (IV. 30.) AB of the Constitutional Court of Hungary, ABH 1992, 156-159.; Decision 57/1994 (XI. 17.) AB of the Constitutional Court, ABH 1994, 324.].
[29] ABH 1995, 188, 204.
[30] Decision 56/1995. (IX. 15.) AB of the Constitutional Court of Hungary, ABH 1995, 260, 264-265.
[31] Decision 40/1997. (VII. 1.) AB of the Constitutional Court of Hungary, ABH 1997, 282; Decision 27/1999. (IX. 15.) AB of the Constitutional Court, ABH 1995, 281, 288. The Constitutional Court confirmed its applicability in connection with Article XIII of the Fundamental Law in Decision 3244/2014. (X. 3.) AB (Reasoning [37]). (ECCN HU-0152)
[32] Decision 28/2006. (VI. 21.) AB of Hungary, ABH 2006, 381, 388. In recognising this, however, the Constitutional Court did not refer to a functional approach to ownership, but to the fact that the right of operation is a property right linked to a person, which may be alienated and continued if the conditions specified in the law are met.
[33] Decision 3329/2020. (VIII. 5.) AB of the Constitutional Court of Hungary, Reasoning [16].
[34] Decision 10/2001. (IV. 12.) AB of the Constitutional Court, ABH 2001, 123; Decision 3115/2013. (VI. 4.) AB of the Constitutional Court of Hungary, Reasoning [34] (ECCN HU-0148); Decision 3/2020. (I. 3.) AB of the Constitutional Court, Reasoning [79] (ECCN HU-0106).
[35] Decision 3209/2015. (XI. 10.) AB of the Constitutional Court of Hungary, Reasoning [66] (ECCN HU-0151).
[36] Decision 3051/2016. (III. 22.) AB of the Constitutional Court of Hungary, Reasoning [23] (ECCN HU-0218).
[37] Decision 3209/2015. (XI. 10.) AB of the Constitutional Court of Hungary, Reasoning [69] (ECCN HU-0151); see also: Decision 3192/2022. (IV. 29.) AB of the Constitutional Court of Hungary, Reasoning [44]-[46].
[38] Decision 3048/2013. (II. 28.) AB of the Constitutional Court of Hungary, Reasoning [39] (ECCN HU-146).
[39] Decision 9/2016. (IV. 6.) AB of the Constitutional Court, of Hungary Reasoning [22]; Decision 3226/2015. (XI. 23.) AB of the Constitutional Court, of Hungary Reasoning [14]; Decision 3237/2015. (XII. 8.) AB of the Constitutional Court, Reasoning [20].
[40] Decision 33/2015. (XII. 3.) AB of the Constitutional Court of Hungary, Reasoning [25].
[41] Decision 33/2015. (XII. 3.) AB of the Constitutional Court of Hungary Reasoning [26].
[42] Decision 3129/2022. (IV. 1.) AB of the Constitutional Court of Hungary, Reasoning [53].
[43] Decision 3244/2017. (X. 10.) AB of the Constitutional Court of Hungary, Reasoning [42] (ECCN HU-0224).
[44] Decision 3244/2017. (X. 10.) AB of the Constitutional Court of Hungary, Reasoning [47] (ECCN HU-0224).
[45] Decision 3157/2020. (V. 21.) AB of the Constitutional Court of Hungary, Reasoning [64].
[46] In connection with the finding that the right of pre-emption does not restrict the interests of the seller, we consider it necessary to note that in practice there may be economic or other interests which make it far from indifferent to the seller who will become the owner of the property. See on this issue: Gábor Kecső: XIII. cikk - A tulajdonhoz és az örökléshez való jog, in Lóránt Csink (ed.): Alapjogi kommentár az alkotmánybírósági gyakorlat alapján. Novissima 2021. 149.
[47] Decision 3235/2021. (VI. 4.) AB of the Constitutional Court of Hungary, Reasoning [26].
[48] Decision 3278/2024. (VII. 24.) AB of the Constitutional Court of Hungary, Reasoning [33].
[49] Decision 18/2015. (VI. 15.) AB of the Constitutional Court of Hungary, Reasoning [23] (ECCN HU-0153); Decision 3042/2021. (II. 19.) AB of the Constitutional Court, Reasoning [89].
[50] Decision 15/2014. (V. 13.) AB of the Constitutional Court of Hungary, Reasoning [26] (ECCN HU-0142).
[51] Decision 3115/2013. (VI. 4.) AB of the Constitutional Court of Hungary, Reasoning [34] (ECCN HU-0148).
[52] Decision 3165/2021. (IV. 30.) AB of the Constitutional Court of Hungary, Reasoning [72].
[53] Decision 3279/2024. (VII. 24.) AB of the Constitutional Court of Hungary, Reasoning [46].
[54] On the interpretation of freedom of artistic expression, see: Decision 18/2014. (V. 30.) AB, Reasoning [11]-[13].
[55] In fact, there was no substantive connection.
[56] Decision 3051/2016. (III. 22.) AB of the Constitutional Court, Reasoning [24]-[25] (ECCN HU-0218).
[57] Decision 3209/2015. (XI. 10.) AB of the Constitutional Court, Reasoning [66].
[58] Decision 3051/2016. (III. 22.) AB of the Constitutional Court, Reasoning [23] (ECCN HU-0218).
[59] Decision 3115/2013. (VI. 4.) AB of the Constitutional Court, Reasoning [34] (ECCN HU-0148); Decision 3194/2014. (VII. 15.) AB of the Constitutional Court, Reasoning [18] (ECCN HU-0159).
[60] Decision 43/1995. (VI. 30.) AB of the Constitutional Court of Hungary, ABH 1995, 193.; see also: Decision 966/B/1997. AB of the Constitutional Court of Hungary, ABH 2001, 959.
[61] Decision 3024/2015. (II. 9.) AB of the Constitutional Court of Hungary, Reasoning [44]; see also: Decision 5/2021. (II. 9.) AB of the Constitutional Court, Reasoning [9] (ECCN HU-0158).
[62] Decision 3194/2014. (VII. 15.) AB of the Constitutional Court of Hungary, Reasoning [24] (ECCN HU-0159) For a detailed analysis of this decision, see: Márton Varju: 3194/2014. (VII. 15.) AB - Trafiktörvény, in: Fruzsina Gárdos-Orosz - Kinga Zakariás (eds.): Az Alkotmánybíróság 100 elvi jelentőségű határozata 1990-2020. Társadalomtudományi Kutatóközpont és HVG-ORAC, 2021. 531-558.
[63] Decision 3345/2023. (VII. 5.) AB of the Constitutional Court of Hungary, Reasoning [82].
[64] Ruling 3066/2021. (II. 19.) AB of the Constitutional Court of Hungary, Reasoning [16].
[65] Decision 23/2013. (IX. 25.) AB of the Constitutional Court of Hungary, Reasoning [74] (ECCN HU-0154).
[66] Decision 15/2014. (V. 13.) AB of the Constitutional Court of Hungary, Reasoning [26] (ECCN HU-0142).
[67] According to this provision, "[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".
[68] Iatridis v. Greece [GC] (31107/96) 25 March 1999, § 54.
[69] Pál Sonnevend - Dzsenifer Orosz: 1. cikk - Tulajdon védelme, in Pál Sonnevend - Eszter Bodnár (eds.): Az Emberi Jogok Európai Egyezményének kommentárja. HVG-ORAC, 2021. 593.
[70] Iatridis v. Greece [GC] (31107/96) 25 March 1999, § 54; Beyeler v. Italy [GC] (33202/96) 5 January 2000, § 100; Kopecky v. Slovakia (44912/98), 28 September 2004, § 52.
[71] Stummer v. Austria [GC] (37452/02) 7 July 2011, § 82.
[72] Van Marle and Others v. the Netherlands (8543/79; 8674/79; 8675/79; 8685/79) 26 June 1986, § 41.
[73] Iatridis v. Greece [GC] (31107/96) 25 March 1999, § 54.
[74] Antoni Lewandowski v. Poland (38459/03) 2 October 2012, § 78 and 82.
[75] On the basis of these considerations, the ECtHR found in Nagy Béláné v. Hungary that the applicant had reasonably relied on the applicable law and had a legitimate expectation that she would receive disability benefits if she fulfilled the legal conditions. (Nagy Béláné v. Hungary [GC] (53080/13) 13 December 2016, § 106-108).
[76] For a detailed analysis of the ECtHR's practice, see: David Harris - Michael O'Boyle - Colin Warbrick: Law of the European Convention on Human Rights. Oxford University Press, 2018.4. 851-852.
[77] The ECtHR finds that a given right has a sufficient basis if, for example, there is well-established case law from domestic courts confirming the existence of that right. (Kopecký v. Slovakia [GC] (44912/98) § 50).
[78] In the specific case, a person purchased a plot of land in order to build a warehouse and office building on it, and this was authorised by the authorities, but the court retroactively annulled the authorisation as of the date of issue. (Pine Valley Developments Ltd. and Others v. Ireland (12742/87) 9 February 1993, § 51).
[79] Centro Europa 7 S.R.L. and Di Stefano v. Italy [GC] (38433/09) § 173.
[80] Capital Bank AD v. Bulgaria (49429/99) 24 November 2005, § 130.
[81] Tre Traktörer AB v Sweden (10873/84) 7 July 1989, § 53.
[82] Vékony v. Hungary (65681/13) 13 January 2015, § 29.
[83] The Constitutional Court laid down its comprehensive position on the ECHR in Decision 61/2011. (VII. 13.) AB of the Constitutional Court of Hungary. According to this, in cases where the Constitution defines the essential content of certain fundamental rights in the same way as the ECHR, the level of protection of fundamental rights provided by the Constitutional Court cannot in any case be lower than the level of protection developed by the ECtHR. Therefore, in accordance with the principle of pacta sunt servanda, the Constitutional Court must follow the case law of Strasbourg and the level of fundamental rights protection defined therein, even if this does not necessarily follow from its own previous "precedent decisions". The Constitutional Court has confirmed this practice in several subsequent decisions: Decision 22/2013. (VII. 19.) AB of the Constitutional Court of Hungary, Reasoning [16], Decision 7/2014. (III. 7.) AB of the Constitutional Court of Hungary, Reasoning [25], Decision 13/2014. (IV. 18.) AB of the Constitutional Court of Hungary, Reasoning [33]; Decision 3145/2018. (V. 7.) AB of the Constitutional Court of Hungary, Reasoning [26].
[84] The reason for this was that, when the ECHR was drafted, no consensus could be reached among the Member States on the regulation due to differences in their legal systems in this regard.
Lábjegyzetek:
[1] The author is chief counsellor; Constitutional Court of Hungary.
Visszaugrás
