In view of the effects of legislative changes, the system of electoral redress should be reviewed due to the transformation of administrative and labour courts and the entry into force of the Code of Administrative Procedure. For five decades in the history of law in Hungary, the Administrative Court reviewed electoral procedures. Their elimination in 1949 concurred with the elimination of elections, what we had after that were only votes, which shows how unclear the concepts a totalitarian regime uses are. A power overstepping the limits of the rule of law also tries to imitate some kind of legitimacy, even a false one; such is when votes are given for a sole candidate in a single-party system. The basic intention of the Opposition Round Table[2], then that of the National Round Table set up for consultation with the state party, was to restore constitutional order in Hungary, building on its legal tradition. After the amendment of the Constitution in 1989[3], which prepared the ground for the political changes, the recent decades saw the setting up of the institutional framework following Hungarian legal tradition. Within this altered institutional framework, the system of administrative adjudication gradually developed again, within the limits of the uniform system of adjudication.
In addition to the ideal delegation of competences following the steps of the institutional reform, we must also answer the issue acceptance of decisions adopted by the election bodies deciding in the electoral procedure and those adopted by the courts acting in the appeal proceedings. In addition to the lawful decisions of the electoral procedure, if the term "legal gobbledygook" becomes rampant in public discourse and voters start to see the practical functioning of the basic principles laid down in the Fundamental Law of Hungary (hereinafter referred to as Fundamental Law) as limited, or even worse, missing, then we are not on the right track and reparation is needed. Experience gained in the verification procedure of referendum questions, for instance, shows the same. The legitimacy of bodies set up by way of election will, otherwise, be questioned and non-legal means will get to the foreground besides or instead of the implementation of judicial decisions.
Different appeal decisions adopted in the electoral procedure are, in prin-
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ciple, just as normal as in case of other domains of law; public confidence laid in the impartial decision of electoral bodies and the courts might, however, get impaired to the widest extent in this case. To suit public confidence, it is worth examining the features of the current system of redress and the directions of its potential development. A specificity of appeal decisions adopted in the electoral procedure is that the available time limit is short-both for submitting the application for review and its assessment-; the decision is, therefore, adopted based on the available documents and the evidentiary procedure is very limited.
Several Curia Decisions refer to the conceptual content of one of its previous decisions,[5] identifying another specialty, in comparison with other legal redress of elections, of legal redress against the result of the elections. Accordingly, in addition to the precise indication of the violation of the law, the relevant evidence must also be indicated and/or referred to, to an extent that it can support, at least at the level of presumptive proof, the infringements occurred in the establishment of the results. It is a specificity of the legal remedy against the result that the scope of the evidentiary procedure is limited on the part of the party submitting the appeal, because it may only indirectly know the result of the tallying. The position of the Curia is that the burden of evidence applies as specified by the opportunities of the appellant in terms of procedural law.
In practical terms, such presumptive proof based on indirect knowledge is possible through the written statement of the member(s) of the official vote counter committee (polling station committee) or attaching the protocol of extraordinary events.
The examination of the development of the system of redress, as a result of the electoral law reform, in the transformed system of electoral procedure should take these specificities into consideration. Voters expect forums of appeal to deliver justice impartially; the requirement of impartial decision-making does, however, not consider the requirements arising from the above-mentioned specificities of the electoral procedure, which are necessary for successful redress. Such procedural rules are, therefore, necessary, which reduce the number of rejections.
Dr. Péter Darák, the President of the Curia, wrote, in the 2014 Yearbook of the Curia[6], that the supreme judicial forum as supreme electoral court first applied the provisions of Act XXXVI of 2013 on the new electoral procedure (hereinafter referred to as Electoral Procedure Act).
He underlined that the Act set a quite short time limit, three days, for the judicial panels of three professional judges to assess the requests for review, which imposed a great responsibility on courts, because the Curia judges in several priority case-types, which then affects the practicing and interpretation of the law by lower-level courts and electoral commissions. In the election year of 2014, the panels of the Curia decided in a total of 280 cases, which corresponds to the number
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of public administration cases received for judgment over two months.
Revision of the system of redress in general and special procedures, according to each redress tool are primarily the following: the scope of persons entitled to submit petitions, the system of fora for redress, procedural time limits, and the decisions to be adopted.
The first step courts make is reviewing the issue of involvement in the decisions of the Curia[7], the conceptual content of the decisions sets out that there are no grounds for an evidentiary procedure of the court's own motion in the assessment of involvement in an electoral case - verification rests with the petitioner. Should the petitioner have failed to fulfil this obligation, then he/she must bear the consequences of non-verification. In the absence of verified involvement, the court rejects the request for review of the petitioner without substantive examination.[8]
Act C of 1997 on the electoral procedure (hereinafter referred to as Electoral Procedure Act of 1997) allowed anybody[9] to submit an objection with reference to the violation of the legislation governing elections and the basic principles of the election and the electoral procedure. In its position on the scope of persons entitled to submit an objection [10], the National Election Commission explained that it is of particularly important social interest that legislation applicable to the election and the basic principles of the election and the electoral procedure function to the broadest possible extent, any potential unlawfulness is revealed, and the lawful order of elections can be restored within the limits of the appropriate review proceeding. This interest comes before the practical considerations related to the limitation of the scope of people entitled to submit an objection.
If anybody is entitled to submit an objection, then the unobstructed functioning of legal redress to detect potential unlawfulness is warranted. Both individuals without suffrage and companies without legal personality were entitled to submit an objection.
The way of appeal or the submission of a request for judicial review were open only to individuals with suffrage, candidates, nominating organisations, and legal entities concerned by the case, because, in case a violation of the law is revealed after the submission of the objection, there are not any grounds to extend the scope of right-holders.
The Electoral Procedure Act, laying down the new regulations, uses a narrower term instead of "anybody"; therefore, the followings are entitled to submit an objection with reference to the infringement of the piece of legislation governing elections, the basic principles of the election, and the electoral procedure: a voter registered in the central register, candidate, nominating organisation, and individuals, legal entities and organisations without a legal personality.[11] The person not included in the central register may, therefore, not seek legal remedy, only if such person is concerned by the case at hand.
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If the objection is submitted by an individual, legal entity, or organisation without legal personality, concerned in the case, then the involvement must also be verified. The concept of involvement in a case is, however, not specified by the Act, it is assessed by the body assessing the application for review.
According to the regulations laid down in the Electoral Procedure Act, the same scope of persons also has the right to submit an appeal, while, according to the regulations laid down in the Electoral Procedure Act of 1997[12], any voter, candidate, nominating organisation, or a legal entity concerned in the case, could submit an appeal against the decision at first instance of the election commission. For the judicial review[13], the Electoral Procedure Act of 1997 specified the same scope of persons as right holders. According to the new regulations laid down in the Electoral Procedure Act, individuals, legal entities, and organisations without a legal personality are entitled to request judicial review[14] of the decision of second instance of the election commission and the decision of the National Election Commission. This considerably narrows the scope of persons entitled to submit a request for judicial review in comparison with the regulations laid down in the Electoral Procedure Act of 1997 and the scope of persons entitled to lodge an appeal in the Electoral Procedure Act.
Among the 745 decisions adopted by the National Election Commission[15], at second instance, 449 were rejections between the setting out of the parliamentary elections (20 January 2014) and the establishment of the result of the national lists of the election (25 April 2014).
Participants of the electoral procedure submitted a request for action against the decisions of the National Election Commission to the Curia in 219 cases in total.[16] The Curia conducted substantive examinations in 132 cases from the 219 requests; as a result, it found the decision of the National Election Commission established in 119 cases, i.e. 90% of the cases, while in 13 cases, which corresponds to 10% of the total cases, it decided to alter its decisions. The Curia rejected 87 of the 219 requests without substantive examination. The 2014 statistics on legal remedy do not treat the number of rejections due to non-involvement separately; the high rate of rejections, however, justifies the analysis of case law by the Curia, with special regard to the experiences gained in the first parliamentary election conduced based on the comprehensive electoral law reform. Any amendment of the relevant pieces of legislation based on the findings of the examination is not possible in the quarter preceding the general parliamentary elections of 2018; it would, therefore, only function in the procedures of the general elections of 2022.
The option of constitutional appeal against a judicial decision appears in the system of redress of the new electoral procedure. In this case, according to Act CLI of 2011 on the Constitutional Court (hereinafter referred to as Constitutional Court Act), the person or organisation involved in the specific case
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is entitled to submit a constitutional appeal,[17] if the decision adopted on the merits of the case or another decision ending the judicial procedure violates the rights of the mover ensured by the Fundamental Law of Hungary, and the mover has already used the available legal remedies or no legal remedy is ensured to the mover.
The regulations in the Electoral Procedure Act specifies a narrower scope of persons entitled to submit an application for review in comparison with the previous regulations, which constitutes an unjustified limitation in comparison the previous regulations. In case of objection submission, it would be practical to make the scope of persons entitled to submit objections whole again, so that the election commissions overseeing the fairness of elections always investigate the violation of the basic principles of elections and adopt a sound decision. The rejection of a notification of a person not falling within the narrower scope with reference to the absence of involvement damages public confidence in the election commissions, while the case may be an obvious violation of a basic principle of elections.
Even if the legislator does not change the scope of persons entitled to submit an objection, the election commission should have the ex officio obligation, and not only the option, to investigate the notification, and the person involved should have the option of legal remedy against its decision. Though the objection may be withdrawn until the adoption of the decision of the election commission; the election commission may, however, conduct[18] the procedure ex officio, according to the regulations in the Electoral Procedure Act.
This regulation is in line with the previous principle that the election commission should, if possible, investigate all activities affecting the fairness of elections.
The persons of the elected members of the election commission are proposed by the head of the election office. Publicity will not apply among the many proposals on the website of the local government, especially not if it is distributed before the meeting of the local council. The general practice in case of sensitive proposals causing animosity among the population is that the local councils misuse the flexible rules for extraordinary cases in their organisational and operational rules, the primary result of which is the unjustified exclusion of publicity. Territorial government offices practicing legal supervision over local governments should act more efficiently in their examination of local regularisation and decision-making. This requires stricter conditions for appointing heads of government offices[19], because the current regulations do not guarantee sufficiently that the selection is based on professional competences. If Act CLXXXIX of 2011 on the Local Governments of Hungary (hereinafter referred to as Local Gov-
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ernments Act) subjected the application of flexible rules for extraordinary cases to guarantees, then the legality appeal of the government office would be binding on the local council in case of decisions adopted with the exclusion of publicity.
Professional and moral authority could be supported by requiring a certain age, similarly to the age threshold applicable to judges acting in review proceedings. According to the text of the provision in Point (q) of Paragraph (1) of Section 21 of the Fourth Amendment of the Fundamental Law and according to Paragraph (2) of Section 26 of the Chapter on the State, to be appointed, a judge must be at least thirty years old. Except for the Chair of the Curia and the Chair of the National Office for the Judiciary, the service relationship of a judge may apply until his or her reaching the age limit for oldage pension[20].
According to data disclosed by the Government, amendment of the regulations concerning the upper age limit of judges concerned 274 judges in total[21]. The service relationship of 228 judges ended on 30 June 2012, that of another 46 judges would have ended by the end of 2012.
Decision No. 96/2012. (V. 2.) of the President of the Republic released a total of 194 judges only. If a judge at the top of his or her professional career may not sit in judgment regardless of his or her professional knowledge and despite his or her important professional experience relevant for the decision-making, then having a more permissive provision for any other member of a decision-making body in the electoral procedure. If, in principle, a new regulation is implemented (changing of the age limit in this case) then it would be practical to implement it in the entire system involved. A framework rule should be formulated for the regulation of age limits in consideration of the limits set by the population of settlements; such a framework rule would regulate priorities according to the circumstances, similarly to those set out when the qualification requirements were enacted.
An elected member of the National Election Commission must have a university degree in law.[22] This regulation requires the application of uniform principles; a 23-years-old lawyer may be an elected member of the supreme election commission, he or she may assess decisions of legal remedy without any professional experience (e.g. appeal against a result). In the electoral procedure, the requirement for judges is, however, an age of at lest 30 years and a specialist certificate in law and the relevant professional experience in years (e.g. legal remedy against a decision concerning the register of voters). The requirements for elected members of the National Election Commission should be the same as those for judges in terms of professional experience and age.
I do not see anything against including the same requirement for appointed members, because their rights and obligations are, apart from a few exceptions[23], identical to those of elected members; moreover, as from taking their wows, they are entitled to the
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same honorarium[24] (fee or remuneration) as the elected members of the National Election Commission[25] for the entire duration of their appointment, or its prorated portion.
According to Paragraph (1) of Section 229 of the Electoral Procedure Act, a request for judicial review is assessed by the Court of Appeal[26] having jurisdiction over the seat of the election commission adopting the decision at second instance. A request for judicial review against the decision of the National Election Commission. According to Paragraph (2) of this Section, the court decides on the request for review in an out-of-court procedure and a council of three professional judges.
Judgment in a council is not only important for the quality of the decision and the consideration of several aspects, but also for the minimisation of any potential criticism due to the presumed or publicly known values, political preferences of the judge, his or her family, or friends. It is a matter of public law culture that judges should not be criticised in person for their decisions. Enumerating legal arguments against a judicial decision on potential fora of legal remedy or other professional fora, in the appropriate style, is commonplace in public discourse. Attacking a judge in person or describing all the judges with negative adjectives is unacceptable and should have, though not legal, but moral consequences under the rule of law. This remark is supported by the fact that, just in a week during my writing this publication, both these unacceptable cases happened, which the Association of Hungarian Judges, the president of which is dr. Lajos Makai, the President of the Court of Appeal of Pécs, objected against in a communication[27], emphasising that communications of prominent politicians included statements and opinions testing the limits of the rule of law, questioning judicial independence, and offending both individual judges and the collectivity of judges. These, often humiliating, excluding, and prejudiced statements can damage the independence of the judiciary, intimidate the judiciary, and infringe the basic principle declared in Article 26 of the Fundamental Law of Hungary.
The assessment of requests for review used to fall within the scope of competence of regional courts under the regulations of the Electoral Procedure Act of 1997, and the Curia had the right to assess requests for review of the decisions of the National Election Commission.[28] This allocation of powers considered that both judicial fora deal with public administration cases.
The current new Electoral Procedure Act delegated the assessment of requests for judicial review to the courts of appeal that do not deal with public
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administration cases, while it is the Curia which still assesses the requests for review of the decisions of the renamed National Election Commission.[29]
As for the proposals to amend the rules of competence, the directions of the reform of the justice system concerning public administration cases must also be considered. Act CLXI of 2011 on the Organisation and Administration of Courts (hereinafter referred to as Court Organisation Act) established the administrative and labour courts within the regional courts as from 1 January 2013.[30]
Based on the reasoning to the Court Organisation Act, administrative courts were set up as separate courts within the judicial system, functioning as a single organisational unit with the labour courts. The proponent argued for the setting up of a joint organisational unit saying that labour courts used to partly act as administrative courts on the level of local courts, they assessed lawsuits for the review of decisions in cases of social security. Similarly to the previous labour courts, administrative and labour courts function independently; they are, however, still part of the hierarchy of the ordinary justice system in terms of court administration; appeals submitted against their decisions are adjudged by the regional court.
The major change was that the Act set up, in addition to the administrative and labour divisions of regional courts, not affecting the functions and operations of these divisions, regional administrative and labour divisions as a special, professional judicial body of administrative and labour judges ruling at first and second instance in cases in their area of jurisdiction.
The system of the twenty administrative and labour courts having jurisdiction over the capital city and the counties and that of the six administrative and labour divisions will be transformed again as from 1 January 2018. The twenty administrative and labour courts will be merged into eight, so-called administrative and labour courts of regional centres.
Among the courts proceeding in cases of public administration, the administrative and labour court and, in cases specified by the law, the regional court or the Curia will adjudicate at first instance; at second instance, the adjudicating court will be the regional court in cases belonging to the administrative and labour court and the Curia in cases belonging to the regional courts.
Reviews will be adjudged by the Curia.[31] The Regional Administrative and Labour Division of the Budapest-Capital Regional Court will act as a forum of appeal having jurisdiction over the entire country. The Regional Administrative and Labour Division of the Budapest-Capital Regional Court will proceed with sole authority at first instance in cases that used to belong to the Budapest-Capital Administrative and Labour Court.
The original intention of the legislator[32] was to set up a supreme court for public administration; the President of the Republic, however, requested preliminary constitutional review from the Constitutional Court still before the promulgation of Act I of 2017 on the Code of Administrative Procedure
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(hereinafter referred to as Code of Administrative Procedure), adopted by the Hungarian Parliament.
The provisions of the Code of Administrative Procedure contested by the motion of the President of the Republic in the context of a preliminary constitutional review and adopted in a procedure for adopting acts of Parliament requiring simple majority modified certain cardinal legal rules of acts qualified as cardinal under the Fundamental Law of Hungary (Court Organisation Act, Media Act, Electoral Procedure Act), which are inconsistent with the Fundamental Law and result in public law invalidity through the infringement of procedural rules governing their adoption - said the Constitutional Court.
In addition to the review of the general remedial powers of the electoral procedure and the enumeration of the directions of its changes, characteristics of special remedies should also be examined.
The regulation of special legal remedies (against decisions concerning the register of voters, decisions on the approval of the data content of voting slips, the establishment of the result of the election, nonaction of an election body, establishment and changing of single-member constituencies) is as follows.
The court proceeds as a sole judge in assessing appeals concerning the register of voters. Appeals concerning the local register of voters are assessed by the district court, appeals concerning the central register of voters are assessed by the Budapest-Capital Regional Court-if the head of the election office concerned does not sustain the appeal.[33] For the purposes of legal guarantee, it is practical to adjudge such cases of special legal remedy in a board of judges because it is an administrative decision, and adopting the decision in a board does not impose any additional burden, it rather plays a controlling, guaranteeing role.
Based on the Code of Administrative Procedure which entered into force on 1 January 2018, the administrative and labour courts, functioning as "courts of regional centre" at first instance[34], could efficiently assess appeals concerning the register of voters as cases of public administration instead of the district courts. As a general rule, the administrative and labour court proceeds as a board of three professional judges.[35] If competences are transformed, it would be advisable to keep the assessment of appeals concerning the register of voters within the scope of the general rules for decision-making in a board-with consideration of the specificities of the electoral procedure.
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There are no grounds for appeal against the decision of the election commission concerning the approval of the data content of the voting slip, a request for judicial review may be submitted against it, which will be assessed by the court of appeal having jurisdiction over the seat of the election commission, or, in case of the National Election Commission, the Curia.[36]
Requests for judicial review concerning the approval of the data content of the individual voting slip in parliamentary elections could be assessed by the Regional Administrative and Labour Division of the Budapest-Capital Regional Court instead of the Court of Appeal, because there are 106 individual voting slips and the legal remedy could concern two easily judgable questions. The first one is the breach of the rules concerning the drawing of the order of candidates, because there are no grounds for separate legal remedy against the drawing. In order to ensure equal opportunities, candidates should be indicated not in an alphabetical order, as it was previously required by the regulations set out in the Electoral Procedure Act of 1997[37], but in the order of a drawing, just like on the voting slips for party lists, as it was previously regulated.[38] The request for legal remedy against the legality of the drawing may be included in the request for judicial review against the approval of the data content of the voting slip.[39]
The other issue giving grounds for a request for review could be the size and proportion[40] of the nominating organisation. The last time this special legal remedy induced major interest was the determination of the size of the logo of nominating organisations. Due to the regulations provided by a decree of the minister of the interior[41], the logo of an organisation had to be displayed in a 20 mm diameter circle when it was submitted. This provision was annulled by the Constitutional Court.[42]
According to the provisions in force of the Electoral Procedure Act[43], the logo of the nominating organisation must be displayed in a box that is 20 millimeters high and 40 millimeters wide on the voting slip; if the joint candidate or the nominating organisations participating in the setting up of the list request the displaying of multiple logs, then these must be displayed together in this 20 mm high and 40 mm wide box.
Delegates of the candidates[44] may be members of the election commission when it draws the order of candidates; purity of the procedure is, therefore, guaranteed. In addition, meetings of the election commission are open to the public[45], representatives of the press typically attend them.
The data content of the single voting slip of the national list should be reviewed in the same way, so I do not see why it should fall within the scope of competence of the Curia. Given that it is a special, administrative legal remedy, I think that the general principle
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that legal remedy against the decisions of the National Election Commission should be sought for at the Curia as disregardable. Based on the reasons above, it would be practical that the court deciding on the data content of the single voting slip for the national party list is the same as the one deciding on the legal remedy concerning the content of the voting slip of individual members of parliament.
There is no alternative rule for the legal remedy against the decision on the approval of the data content of the voting slip used at the election of local councilors and mayors. Accordingly, there are no grounds for appeal against the decision of the election commission concerning the approval of the data content of the voting slip, a request for judicial review may be submitted, but it must arrive to the election commission adopting the contested decision on the day following the adoption of the decision of the election commission.
The request for judicial review is assessed by the Court of Appeal having jurisdiction over the registered seat of the election commission, an appeal against the decision of the National Election Commission is assessed by the Curia. The court decides on the request for review on the day following its submission at the latest.
The quantity of voting slips is quite large at the election of local councilors and mayors, the National Election Office printed 7,834 types and 22,489,000 pieces of voting slips[46] for the local government elections of 2014.
Due to the high quantity of voting slips, the central regional Administrative and Labour Court could assess requests for judicial review concerning the approval of the data content of voting slips in case of the election of local councilors and mayors instead of the courts of appeal. Similarly to the legal remedy against the decision on the approval of the data content of the voting slip of individual candidates and national party lists for mandates in the parliament, requests for review could be based on two, easily assessable issues; the first is the breach of the rules for the drawing of the order of candidates, because there are no grounds for separate legal remedy against the drawing. The other issue is the size and proportion[47] of the logo of the nominating organisation.
Appealing against the decision of the vote-counting commission establishing the result in the wards is only possible together with the appeal against
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the decision establishing the result of the election. There are two reasons for which appeals may be submitted against the decision establishing the result of the election: the first one is the unlawfulness of the decision of the vote-counting commission establishing the result of the ward, the second one is the breaching of the rules governing the aggregation of the results for wards and the establishment of the result of the election.
Regarding the establishment of the result of the election of individual members of parliament, the National Election Commission assesses and decides on the appeal against the decision of individual parliamentary election commissions,[48] and it is the Curia that assesses and decides on the request for judicial review against the decision of the NEC. The result of the national election based on lists is established by the National Election Commission,[49] the request for judicial review against its decision should also be submitted to the Curia. As for the establishment of the election results, changing the rules on remedial powers is not justified, because it is about the election of the supreme body representing the people.
If the legislator returns to legal tradition and sets up the Hungarian Administrative Court[50], which would be equal to the Curia, in a cardinal law, then the changing of powers would be reasonable.
Based on the ward protocols, the local election commission[51] summarises the ward results of the mayoral election, individual list-based election or the election in single-member constituencies, and establishes the result of the election, and establishes the result of the compensatory list-based election based on the non-appealable protocols on the results of the elections in single-member constituencies.
Based on the ward protocols, the territorial election commission[52] establishes the result of the county-government elections and the election of the lord mayor, and it establishes the result of the compensatory list-based election based on the non-appealable protocols on the results of the mayoral elections in the districts of the capital city. The territorial election commission[53] decides on the appeals against the local election commissions.
The National Election Commission[54] decides on the appeals against the decisions of the territorial election commissions. A request for judicial review is assessed by the Court of Appeal having jurisdiction over the seat of the election commission adopting the decision at second instance. A request for judicial review against the decision of the National Election Commission.
In terms of local government elections, assessment of requests for judicial review of the second-instance decision establishing the result fall, under the current rules of territorial jurisdiction, within the scope of competence of the five courts of appeal (Budapest, Debrecen, Győr, Pécs, Szeged), which do not deal with cases of public administration. In the spirit of decentralisation and the organisational reform
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concerning administrative and labour courts, effective as from 1 January 2018, the eight administrative and labour courts acting as "regional central courts" (Budapest, Budapest-Environs, Debrecen, Győr, Miskolc, Pécs, Szeged, Veszprém) could proceed, as they deal with cases of public administration.
Requests for judicial review of the decisions of the National Election Commission could be assessed by the Regional Administrative and Labour Division of the Budapest-Capital Regional Court, instead of the Curia.
It is a specialty of the decision to be adopted that, in case of nonaction by the election body, the superior election body gives the instruction to conduct an extraordinary procedure or adopts the non-adopted decision; in case of the National Election Commission, however, the Curia may only give the instruction to conduct an extraordinary procedure only.[55]
Due to the special, administrative nature of the legal remedy, the competence of the Curia is not justified in this case either; it would be an appropriate solution if the Regional Administrative and Labour Division of the Budapest-Capital Regional Court could give the instruction to conduct an extraordinary procedure, which would be in line with the principle of decentralised delegation of competences.
According to Act CCIII of 2011 on the Elections of Members of Parliament (hereinafter referred to as MP Elections Act), 106 MPs are elected in single-member constituencies[56]. Single-member constituencies must be determined[57] in a way that they do not reach beyond the borders of counties and the capital city, form a coherent area and the number of voters must be approximately the same in them.[58] The difference between the number of voters in a single-member constituency and the national arithmetic average of voters in single-member constituencies may be higher than 15% (considering geographical, national, historical, religious and other local specificities and migration) only with a view to the functioning of rules on territorial demarcation. The number of single-member constituencies is in Schedule No. 1 to the MP Elections Act, their seat and geographical division is in Schedule No. 2 to the MP Election Act. The geographical division includes settlements, more specifically, public spaces lime street, square etc., most specifically, and the characteristics of such public spaces like odd or even house numbers. If
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the difference between the number of voters in a single-member constituency and the national arithmetic average of voters in single-member constituencies is higher than 20%, then Parliament amends Schedule No. 2 to the MP Elections Act. In legislative texts, the indicative mood implies an obligation, the MP Elections Act, together with its Schedules, are considered cardinal.
This Schedule may not be amended between the first day of the year preceding the year of the general election of MPs and the date of the general election of MPs, except for elections due to the dissolution of the Parliament. The degree of difference is to be determined in comparison with the number of voters on the date of the previous general parliamentary election.
The MP Elections Act and its Schedules are considered cardinal under Paragraph (4) of Article XXIII, Paragraphs (1) and (2) of Article 2 of the Fundamental Law of Hungary, which makes any compliant modification more difficult.
As for the MP Elections Act, Parliament may be obliged to fulfil its obligation to regulate within the context of subsequent constitutional review; this would, however, not be the first case where the legislative body commits an infringement of the law by way of non-action due to the missing majority.
In case of local government elections, single-member constituencies are established and modified by the head of the local election commission, the municipal clerk; in doing so he or she must call for the opinion of the local election commission, which is, however, non-binding.[59] His or her decision may be contested at the regional court. A request for judicial review of his or her decision on the establishment and revision of single-member constituencies may be submitted during the period of the disclosure of the decision.[60]
Remedial powers concerning the decision should be delegated not to the regional courts but the "regional central" administrative and labour courts, to their councils assessing cases of public administration. According to the Schedule to Act CLXXXIV of 2010 on the names and head offices of courts and the designation of their territorial jurisdiction, administrative and labour courts stay with the regional courts; decisions are, however, made in the councils of the "regional central" administrative and labour courts, dealing with cases of public administration. This surviving, hardly understandable duplicity of the regulations may be due to the need to regulate the judicial organisation in a cardinal law. The administrative and labour court stays with the regional courts only in their name; this shows the problem of modifying cardinal laws.
The original intention of the legislator, to create separate administrative courts by separating the administrative and labour functions, may be implemented in a later amendment of the cardinal law, if the fractions in the Parliament reach to a level of sufficient consensus.
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It is important, in terms of public confidence, that cases of legal remedy in electoral procedures are assessed in a council and not by single judges under the rules of the Code of Administrative Procedure, because the conditions do not apply.
According to the rules for establishing single-member constituencies, this kind of legal remedy might require the use of experts to adopt a sound judgment, or, in addition to upholding, the contested provision might need to be repealed and the option to give instructions for a new procedure might be necessary.
It is worth the consideration that, due to the special knowledge required, the Regional Administrative and Labour Division of the Budapest-Capital Regional Court should proceed with sole authority, allowing for the focusing of experience in a single judicial organisation in such decisions.
Following the principle of uniform regularisation, an alternative could be, similarly to the establishment of the boundaries of parliamentary single-member constituencies, the constituencies of local councilors are also established on the level of legislation, in the decrees[61] of the local council, in such cases, it would be the Local Government Council of the Curia of Hungary that could assess requests for reviews.
Single-member constituencies must be so determined[62] that they form a coherent area and the number of voters must be approximately the same.[63] The difference between the number of voters in a single-member constituency and the arithmetic average of voters in each single-member constituency of the settlement may be 15% at maximum-taking the specificities of settlement structure, geography and others also into consideration.
The head of the local election office discloses his or her decision on the establishment of constituencies (including the borders of single-member constituencies, the number of voters based on the central register, the degree of difference between the number of voters in a single-member constituency and the average of voters in a single-member constituency in the settlement, the reason for a difference greater than 5%, and the opinion of the local election commission) for 15 days, in the locally usual way.[64] Requests for judicial review against this decision may be submitted within this time limit.
Modification is mandatory if the number of inhabitants of the settlement rises above 10,000 or the number of single-member constituencies changes, or, if the difference between the number of voters in a single-member constituency and the average number of voters in the single-member constituencies of the settlement is greater than 20%. The degree of this difference must be determined based on central name register data for 1 January of the year of the general elections.[65]
There is no special deadline for the assessment; hence, the general 3-day deadline for assessing requests for judicial review applies, which is excessively short, because there is more time for it.
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The head of the local election office modifies the arrangement of election districts until 31 March of the general election year.[66] In the year of general elections, this deadline can be shorter, ensuring a special deadline for assessing the request for review, in alignment with the content of the decision. Not only the extension of the time limit for assessment is justified, but an expert or a survey might also be necessary to adopt decisions. In establishing single-member constituencies, statutory rules touch upon the specificities of settlement structure, geography and other local specificities, which only refer to the fact that it is not a case to be settled in a courtroom. Modification of the borders of constituencies might require more consultation so that its content can be acceptable to the voters. Only a few think about the most sensitive question, which is a modification that alters the voting room. What interests voters is not where they belong in territorial terms or the proportional head-count, but how they will access the new voting room. The determination of the accessibility of the voting room does not only requires the assessment of Sunday public transport options but also the consideration of road connections, crossings, natural and artificial obstacles, which also means that public security might also need to be taken into consideration. The reason for this is that if the options of public transportation are poor on Sundays, then voters might not want to walk through tough neighbourhoods. Knowing this and analysing the results of previous elections might allow for keeping voters of certain neighbourhoods away from voting or making it difficult to them to access the voting room. Influencing the turnout rate at elections might have an impact on the results of the election.
The appeal against the decision of the head of the local election office establishing and revising wards[67] implies another issue in terms of time limits and procedure, as such appeals may be submitted to the head of the local election office within the time limit for disclosing the decision.
The head of the local election office forwards the appeal to the head of the territorial election office, who is to assess it in three days and either modify the arrangement of wards or reject the appeal. A modification resulting in the changing of the voting room also requires the assessment of the accessibility of the new voting room. The willingness to vote might be affected by road connections, crossings, natural and artificial obstacles or public security issues. There are no grounds for any further legal remedy against the decision of the head of the territorial election office in this case, given that it is about changes within a single-member constituency.[68]
It is, however, worth considering and still ensuring the option of judicial review, because the head of the territorial election office single-handedly modifies the arrangement of wards or rejects the appeal. According to the Venice Commission[69], the goal is that
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the final decision is adopted by a court in procedures for electoral legal remedy. The option to submit a request for judicial review against the second-instance decision of the head of the election office, modifying the wards, is important.
It is clear from ward protocols that which candidate or nominating organisation the majority of voters prefer, even on multiple, successive elections. Modifying the territories of wards can change the voting room of voters, which makes it either easier or harder to them to access the voting room of the day of the election. Turnout in a given ward can slightly but still be changed without the modification of the borders of single-member constituencies, and the voters in another ward of the same single-member constituency may prefer another candidate or nominating organisation. It is well illustrated here that, in case of elections won with a slight majority only, such a minor administrative change can affect the outcome of the election.
This decision power of the head of the territorial election office shows the same direction, meaning that the rules for appointing municipal clerks should be changed with a view to reinforce their professional independence and stability even if a cardinal law[70] needs to be amended.
Elections are on Sundays[71], i.e. non-working days, which requires new regulations in terms of employment and public transport in order to allow the most voters to exercise their voting rights.
It is worth considering making election days (a day to celebrate democratic institutions) a holiday for those employees who work on Sundays. As for public transport, accessing voting rooms should be made easier by applying working-day timetables at least between 10 AM and 5 PM. This is especially true for small villages in the country where the voting room is very far away, and its access is further hampered by the fact that public transport takes a lot of time in these regions due to the rare departures. But it also happens that voters do not come to vote because there is no pavement or due to other physical obstacles.
Under the topic of the remedial system, I am outlining the potential solution provided by public transport and not by organised transportation; the methods for assuring the turnout on elections to the greatest possible extent is, however, the subject of a separate essay, as it can men many solutions from the extension of the option to vote via mail, electronic voting - while setting up the guarantee rules as well.
Section 17 of Act LXXXI of 2005 on the Amendment of Act C of 1997 on the Electoral Procedure (hereinafter referred to as the Act Amending the Electoral Procedure Act of 1997) enacted the legal remedy concerning the media
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campaign. Objections (especially those concerning the violation of the basic principles of the election procedure, the publication of political advertisements) concerning the participation of the press in election campaigns[72] were assessed by the local election commission having jurisdiction over the registered seat or home address of the publishing house for temporary papers not distributed nationally or, in case of broadcastings, the broadcaster. In case of district broadcastings, the territorial election commission having territorial jurisdiction over the registered seat or home address of the broadcaster, in case of nationwide, temporary papers or national broadcastings, the National Election Commission assessed the objections. A request for judicial review is assessed by the regional court having jurisdiction over the seat of the election commission adopting the decision at second instance. Requests for judicial review of the decision of the National Election Commission were assessed by the Curia.[73]
According to the regulations of the Electoral Procedure Act, objections concerning the participations of media providers, the press, and movie theatres in election campaigns, and the violation of the provisions of the Electoral Procedure Act are assessed by the National Election Commission.[74]
As for the election of MPs and MEPs, objections concerning district, local, or on-demand media services or non-nationwide newspapers are assessed by the election commission for the parliamentary single-member constituency, having jurisdiction over the registered seat or home address of the media provider, as for the election of local councilors and mayors, and the councilors of national minority governments, the territorial election commission having jurisdiction over the registered seat or home address of the media provider.
Whereas the two elections, that of MEPs and MPs, may be held at the same time (after 2014, the next time it will occur in 2034, due to the different duration of the mandates), it is not the territorial election commission but that for the parliamentary single-member constituency that proceeds in the review proceedings concerning the media campaign. The election commissions of the two elections are the same.
A request for judicial review is assessed by the Court of Appeal having jurisdiction over the seat of the election commission adopting the decision at second instance. A request for judicial review against the decision of the National Election Commission.[75]
As for the examination of general and special legal remedies, it is important to review the time limits for their submission and assessment.
According to the previous regulation, the objection was to be assessed by the election commission, which - if it sustains the objection - [76] established that there was an infringement of the law, prohibits the violator from any further infringement, or annuls and orders the repeating of the electoral procedure or
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its part concerned by the legal remedy. It would otherwise reject the objection.
According to the current, new regulation, the objection was to be assessed by the election commission, which - if it sustains the objection - established that there was an infringement of the law, prohibits the violator from any further infringement, or annuls and orders the repeating of the electoral procedure or its part concerned by the legal remedy.
Moreover, it may impose fines in case of any infringement of the rules of the election campaign, use of the unsubmitted nomination slips and the ward name register for purposes that are not directly political only, or if the obligation of destruction is not complied with. The decision on the amount of the fine[77] must consider if the infringement was obviously willful. The decision on the amount of the fine[78] must consider the scope of persons concerned by the infringement, the gravity of and the area affected by the infringement and the potential repeating of the infringement.
If the fine is not paid within 15 days as from the date when the decision imposing it becomes final and non-appealable, then it becomes an outstanding public dues enforced as taxes, which is then collected by the public tax authority upon being called by the National Election Office. If the election commission does not sustain the objection, then it refuses it.
According to the regulations of the Electoral Procedure Act of 1997 having entered into force on 6 November 1997, if the election commission or the court sustains an objection, then it modifies the infringing decision, annuls it and orders the repeating of the electoral procedure or a part of it.[79] There are no grounds for any further legal remedy against the decision of the court.
According to the provisions of the Act Amending the Electoral Procedure Act of 1997, having entered into force on 16 July 2005, the election commission proceeding at second instance or the court sustains or modifies the challenged decision.[80] There are no grounds for any further legal remedy against the ruling of the court. Regulations in the new Electoral Procedure Act apply the same rule.[81]
The question is whether completing the scope of adoptable decisions by rescinding and ordering the conduction of a new procedure is justified in addition to upholding and modification.
Bill No. T/16775, including the reasoning for the Act Amending the Electoral Procedure Act of 1997, has only a single sentence for this modification, saying that the election commissions and courts have reforming competences at second and third instance. Regulations having entered into force on 16 July 2005 and having been in force ever since do not provide the opportunity to the bodies of lower instance to repair procedural defects[82] made in the decisions of election bodies in a repeated
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procedure, this task lies with the court assessing the appeal.[83] This amendment had not been thought-out enough, as it is also reflected by the absence of a meaningful reasoning. The option of rescinding the decision of the election commission by the court and ordering the conduction of the new procedure must be available. This could allow for the reparation of the infringements of procedural requirements by election bodies.
The modification of the rules for appointing municipal clerks is justified to reinforce their professional independence and stability; regulations should return to the appointment by the local council, as it was before 2013, instead of the single-handed appointment by the mayor.
Elections are on Sundays[84], i.e. non-working days, which requires new regulations in terms of employment and public transport in order to allow the most voters to exercise their voting rights. It is worth considering making election days (a day to celebrate democratic institutions) a holiday for those employees who work on Sundays. This would not only have a positive impact on the willingness to vote of employees working on Sundays, but those who go to malls would also have more time to go voting.
As for public transport, accessing voting rooms should be made easier by applying working-day timetables at least between 10 AM and 5 PM. This would be a great relief to those who - altruistically and spontaneously, not according to the lists-organise rides, though not by busses, for voters. Public interest takes priority over private interests; publicly financed public transport should, therefore, transport voters and not private individuals.
The statutory rules for nominating future elected members of election commissions could be amended by further provisions, which could ensure that the local council can select from members who enjoy the greatest public confidence. The head of the election commission should disclose his or her proposal concerning the persons to be the future elected members of the election commission 15 days prior to their election. Publicity of the nomination process and the option to raise objections against prejudiced candidates could complement the current nomination process.
Another guarantee regarding the members of the body proceeding in the review proceeding could be that the law should require certain qualifications. The members should be able
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to interpret pieces of legislations and their qualification and professional experience should constitute appropriate professional authority in the eyes of the residents. Such requirements could be determined in framework regulations, taking settlement-level circumstances also into consideration. Requiring commission members proceeding in the remedial procedure to meet the same age threshold as judges have to meet could also serve the professional and moral authority. The requirements for elected members of the National Election Commission should, taking the specificities of their competences and mandates into consideration, be the same as those for judges in terms of professional experience and age. The same requirement could apply to appointed members.
The alpha and omega of the proposals above is consensual proposition and acceptance, corresponding to cardinal rules. Let's, however, not be hypocritical, this can be attained part by part in a bargaining position, and not as a uniform, comprehensive reform.
The agreement should result in the reasonable limitation of cardinal laws and provisions. The one and only base of principle for the requirement of adoption by qualified majority is the close connection to the functioning of the fundamental rights guaranteed in the Fundamental Law of Hungary, and some simple considerations of power. The chief function of the Constitutional Court is to protect such values and not the administration of justice without any base of principle; that would not require a constitutional court, only an e-form, as IT solutions make it possible to indicate cardinal provisions differently and their automatic annulment through their application.
This technical example could be a forced one, but it well illustrates the spirit of the age. Today, the number of formalised procedures is significant and increasing in public administration and official cases. Judicial best practices are opening towards uniform procedures. Automatism has its own role, but it is for the verification of legal facts and not the administration of law, especially not the administration of justice.
The power to establish the necessity of qualified majority enshrined in the constitutional regulations could be delegated to the Constitutional Court, only to protect fundamental rights.
Declaring this as a general provision of principle could provide a solution for the wall built of cardinal rules, which seems to play the same rule as the widespread two-thirds majority rule the purpose of which was to prevent the political changes in 1990, after he first free elections. Not all walls should/could be broken through/pulled down.[85] ■
JEGYZETEK
[1] This paper has been made within the framework of the programmes initiated by the Hungarian Ministry of Justice to raise the standard of legal education.
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[3] Act XXXI of 1989 on the Amendment of the Constitution
[4] BH 2015.24. Due to the fact that it is a summary procedure, the Curia can take evidence only with limited means and in a narrow scope in electoral cases. In case of meaningful judgment, it can basically assess the evidence attached by the petitioner. Substantive revision is not possible if the rejective decision without substantive examination of the National Election Commission is substantiated [Section 224, Paragraphs (1) and (4) of Section 231 of Act XXXVI of 2013].
[5] Decision No. Kvk.37.500/2014/6. of the Curia.
[6] 2014 Yearbook of the Curia, Introduction written by Péter Darák, the President of the Curia.
[7] Curia Kvk.I.37.597/2014/5.
[8] BH 2014.350. In the absence of verified involvement, substantive examination of the request for judicial review shall not take place [Paragraph (1) of Section 221, Paragraph (1) of Section 231 of Act XXXVI of 2013].
[9] Paragraph (1) of Section 77 of the Electoral Procedure Act of 1997
[10] Position No. 5/2006. (II. 23.) of the National Election Committee on the scope of people entitled to submit an objection
[11] Section 208 of the Electoral Procedure Act.
[12] Paragraph (1) of Section 79 of the Electoral Procedure Act of 1997
[13] Section 82 of the Electoral Procedure Act of 1997
[14] Paragraph (1) of Section 222 of the Electoral Procedure Act
[15] Report of the Chair of the National Election Commission on the organisation and execution of state functions associated with the election of local councilors and mayors and the councilors of national minority councils on 12 October 2014
[16] Report of the Chair of the National Election Commission on the organisation and execution of state functions associated with the election of local councilors and mayors and the councilors of national minority councils on 12 October 2014
[17] Section 27 of the Constitutional Court Act
[18] Section 216 of the Electoral Procedure Act
[19] Sections 10 to 13 of Act CXXVI of 2010 on the Government Offices in the Capital City and in the counties, and the amendments of acts related to the setting up of county government offices and territorial integration
[20] See: Sections 1 to 5, Chapter III, Sections 35 to 44, Sections 47 to 64, Chapters V to X, Chapters XII to XIII, Sections 223 to 224, Sections 226 to 233 and Section 236 of Act CLXII of 2011; Points (b) to (d) of Paragraph (32) of Section 158 Act XXXVI of 2012.
[21] Explanation of Paragraph (2) of Section 26 of the Chapter on the State in the Fundamental Law of Hungary
[22] Paragraph (3) of Section 17 of the Electoral Procedure Act
[23] Paragraph (1) of Section 19 of the Electoral Procedure Act
[24] Paragraph (3) of Section 19 of the Electoral Procedure Act
[25] 386,500 HUF in 2017 and 2018.
[26] According to Paragraph (1) of Section 354 of the Electoral Procedure Act, according to Paragraph (3) of Article XXIX, Paragraph (1) of Article 2 and Article 35 of the Fundamental Law of Hungary, (1) it is a cardinal law
[27] http://www.mabie.hu 20171122 disclosed publication
[28] Paragraph (7) of Section 83 of the Electoral Procedure Act of 1997
[29] Section 229 of the Electoral Procedure Act
[30] Paragraph (1) of Section 191 of the Court Organisation Act
[31] Section 7 of the Code of Administrative Procedure
[32] Bill No. T/12234.
[33] Section 236 of the Electoral Procedure Act
[34] Paragraph (3) of Section 13 of the Code of Administrative Procedure
[35] Paragraph (1) of Section 8 of the Code of Administrative Procedure
[36] Paragraph (1) of Section 240 of the Electoral Procedure Act
[37] Paragraph (2) of Section 96 of the Electoral Procedure Act of 1997
[38] Paragraph (3) of Section 96 of the Electoral Procedure Act of 1997
[39] Section 239 of the Electoral Procedure Act
[40] Paragraph (2) of Section 161 of the Electoral Procedure Act
[41] Point 6.3 of Schedule No. 2 to Decree No. 20/2002. (VIII. 1.) of the Minister of the Interior on the implementation of Act C of 1997 on the Electoral Procedure during the elections of local councillors and mayors
[42] Decision No. 70/2002. (XII. 17.) of the Constitutional Court
[43] Paragraphs (2) to (3) of Section 161 of the Electoral Procedure Act
[44] Paragraph (1) of Section 28 of the Electoral Procedure Act
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[45] Paragraph (1) of Section 40 of the Electoral Procedure Act
[46] Report of the Chair of the National Election Commission on the organisation and execution of state functions associated with the election of local councillors and mayors and the councillors of national minority councils on 12 October 2014
[47] Paragraph (2) of Section 161 of the Electoral Procedure Act
[48] Point (b) of Paragraph (2) of Section 297 of the Electoral Procedure Act
[49] Point (c) of Paragraph (2) of Section 296 of the Electoral Procedure Act
[50] Írisz Horváth E.: A magyar közigazgatási bíráskodás története. [The History of Hungarian Adjudication in Public Administration] Iustum Aequum Salutare III. 2007/2. pp. 161-173.
[51] Paragraph (1) of Section 307/N of the Electoral Procedure Act
[52] Paragraph (2) of Section 307/O of the Electoral Procedure Act
[53] Paragraph (2) of Section 307/P of the Electoral Procedure Act
[54] Paragraph (3) of Section 307/P of the Electoral Procedure Act
[55] Paragraph (2) of Section 242 of the Electoral Procedure Act
[56] Paragraph (2) of Section 3 of the MP Elections Act
[57] Section 4 of the MP Elections Act
[58] Decision No. 22/2005. (VI. 17.) AB of the Constitutional Court
[59] Paragraph (1) of Section 306/A of the Electoral Procedure Act
[60] Section 307/Q of the Electoral Procedure Act
[61] Norbert Nadrai: Legal and institutional safeguards for the establishment and modification of constituencies. Kodifikáció és Közigazgatás [Codification and Public Administration]. 2017. No. 11.
[62] Paragraphs (2) and (3) of Section 306/A of the Electoral Procedure Act
[63] Decision No. 22/2005. (VI. 17.) AB of the Constitutional Court
[64] Section 306/B of the Electoral Procedure Act
[65] Paragraph (1) of Section 306/D of the Electoral Procedure Act
[66] Section 306/C of the Electoral Procedure Act
[67] Paragraph (1) of Section 234 of the Electoral Procedure Act
[68] Paragraph (3) of Section 234 of the Electoral Procedure Act
[69] Code of Good Practice in Electoral Matters
[70] Paragraph (1) of Section 145 of the Local Governments Act
[71] Paragraph (2) of Section 6
[72] Paragraph (1) of Section 44/A of the Electoral Procedure Act of 1997
[73] Paragraph (7) of Section 83 of the Electoral Procedure Act of 1997
[74] Paragraph (1) of Section 151 of the Electoral Procedure Act
[75] Paragraph (1) of Section 229 of the Electoral Procedure Act
[76] Section 78 of the Electoral Procedure Act of 1997
[77] As from 1 January 2017, if a monthly wage is applied, it is 127,500 HUF, as from 1 January 2018, if a monthly wage is applied, it is 138,000 HUF.
[78] Paragraph (2) of Section 219 of the Electoral Procedure Act
[79] (1) of Section 79 of the Electoral Procedure Act of 1997
[80] Paragraph (4) of Section 81 of the Electoral Procedure Act of 1997 enacted by Section 25 of Act LXXXI of 2005 on the Amendment of Act C of 1997 on the Electoral Procedure
[81] Paragraph (5) of Section 231 of the Electoral Procedure Act
[82] Court of Appeal of Debrecen Pk.II.20.294/2015/2.
[83] Dr. Zsolt Balogh: A választási és népszavazási eljárásokkal kapcsolatos jogorvoslat [Legal remedy in electoral and referendum procedures] Forum Senten-tiarum Curiae 2017. 2nd year, Vol. 1
[84] Paragraph (2) of Section 6
[85] If it does not have either a door or a window, we can cut a hole later to have some place to put flowers. (addition by the author)
Lábjegyzetek:
[1] The Author is PhD student, Doctoral School of the Faculty of Law at the University of Pécs.
Visszaugrás
