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Hungary – New Constitution – Opinion by the Venice Commission


Background:

March 2011 – At request of the Hungarian authorities, Venice Commission adopts opinion on three legal issues raised in the drafting process. Concern expressed regarding lack of transparency in constitution-making process: the absence of dialogue between the majority and the opposition, very tight timeframe seriously limiting opportunities for an adequate public debate.

14/03/11 – draft new Constitution of Hungary is published

25/03/11 - PACE Monitoring Committee requests legal opinion on new Constitution of Hungary.

18/04/11 - New Hungarian Constitution adopted by Hungarian Parliament.

25/04/11 - New Hungarian Constitution signed by President of Hungary.

27/06/11 – The Venice Commission of the Council of Europe adopts its opinion on the new Constitution.

01/01/12 - New Hungarian Constitution enters into force.

Conclusions

In the Opinion of the Venice Commission, the adoption of the new Constitution in April 2011 represents the beginning of a longer process of establishment of a comprehensive and coherent new constitutional order, which implies adoption or amendment of numerous pieces of legislation and new institutional arrangements. It is essential for Hungary to make sure that all subsequent legislative and other measures are fully in line with the international norms and standards which are binding for Hungary.

The adoption of a new Constitution, aiming to consolidate Hungary as democratic state based on the principles of separation of powers, protection of fundamental rights and the rule of law, is a commendable step.

The Venice Commission welcomes the efforts made to establish a constitutional order in line with the common European democratic values and standards and to regulate fundamental rights and freedoms in compliance with the international instruments which are binding for Hungary, including the ECHR and the recent EU Charter. It notes that the current parliamentary system and the country’s form of government - the republic - have been maintained. The Commission is pleased to note the introduction of the individual constitutional complaint in the Hungarian system of constitutional review.

The Venice Commission notes that the recommendations it formulated, in March 2011, following the authorities’ request for assistance on specific legal issues raised in the constitutional process, have been partly taken into account.

By contrast, it is regrettable that the constitution-making process, including the drafting and the final adoption of the new Constitution, has been affected by lack of transparency, shortcomings in the dialogue between the majority and the opposition, the insufficient opportunities for an adequate public debate, and a very tight timeframe. The Commission hopes that the adoption of implementing legislation will be a more transparent and inclusive process, with adequate opportunities for a proper debate of the numerous major issues that are still to be regulated. It calls upon to all parties involved to adopt, beyond their political background and orientations, an open and constructive approach and effectively co-operate in this process.

The significant number of matters relegated, for detailed regulation, to cardinal laws requiring a two-thirds majority, including issues which should be left to the ordinary political process and which are usually decided by simple majority, raises concerns. Cultural, religious, moral, socio-economic and financial policies should not be cemented in a cardinal law.

The limitation of powers of the Constitutional Court on taxation and budgetary matters and the prominent role given to the Budget Council in the adoption of the State budget, represent further sensitive issues that have raised concern in the light of their potential impact on the functioning of democracy.

In addition, a rather general constitutional framework is provided for key sectors, such as the judiciary and further important society settings. This is also a source of concern, as it may have an impact on the quality and level of guarantees and protection available and on the effective implementation of the standards applicable to the sectors concerned. Guarantees for the main principles pertaining to such important matters are usually enshrined in the Constitution, especially when major reforms are planned, as it is the case for the Hungarian judiciary. The provisions relating to life imprisonment without parole could raise issues of compatibility with international norms that are binding on Hungary and the related case-law.

With regard to the constitutional protection of fundamental rights, the Commission considers that more precise indications should be provided by the Constitution as to their content and stronger guarantees for their effective protection and enjoyment by individuals, in line with the international human rights instruments to which Hungary is a Contracting Party. The Venice Commission recalls that, as indicated in its March 2011 Opinion[1], “[…] as a rule, constitutions contain provisions regulating issues of the highest importance for the functioning of the state and the protection of the individual fundamental rights. It is thus essential that the most important related guarantees are specified in the text of the Constitution, and not left to lower level norms”.

The relevance of the Preamble for the Constitution’s interpretation and some potentially problematic statements and terms contained therein have also gave reason to questions and would call for adequate clarification by the Hungarian authorities. This include the wording on the protection of the rights of Hungarians abroad contained in the Preamble and other related provisions of the new Constitution, which may be found problematic and engender concern in the framework of inter-state relations.

The Venice Commission trusts that adequate clarifications and responses - fully in line with the applicable standards - to the concerns mentioned before, will be provided in the context of the future interpretation and application of the new Constitution or by amending the Constitution where necessary. The preparation and adoption of cardinal and other implementing laws is an opportunity in this respect. The Venice Commission stands ready to assist the Hungarian authorities in this process upon their request.