The constitutional environment of the introduction of the constitutional complaint to the Hungarian constitutional system

Il contesto costituzionale dell’introduzione del constitutional complaint nel sistema costituzionale ungherese

Abstract

The new constitution of Hungary, named ‘Fundamental Law’, entered into force on 1 January 2012 replacing the former Constitution.  The governmental forces gaining a two-thirds constituent majority at the 2010 elections envisaged a new role for the constitutional court. According to the official reasoning, the aim of the transformation was to give more emphasis on the subjective protection of fundamental rights in the individual cases and on the other hand abolish the possibility of actio popularis, which meant that anyone could turn to the Constitutional Court without any particular interest in order to ask for the annulment of a piece of legislation deemed unconstitutional. Concerns were however significant that the constituent majority will reconsider the central role of the institution in maintaining the rule of law in Hungary.
While the constitutional principle of the separation of powers was being respected, the only branch with which the desired level of cooperation was not reached was the judiciary.
Several researches have shown that the judicial practice rarely reflected the constitutional arguments. The details of the envisaged complete transformation of the constitutional adjudication unfolded in the course of the drafting of the constitution. Article 24 of the Fundamental Law therefore stated that on the basis of a constitutional complaint, the conformity with the Fundamental Law of the rules of law applied in a particular case, or the judicial decision itself will be reviewed. Such introduction of the German type constitutional complaint was a significant change completing the constitutional turn by transforming the constitutional control of the Government legislative majority to the constitutional control of the judiciary.

Keywords: Constitutional court; Constitutional complaint; Hungarian constitutional change; Constitutional adjudication in Hungary; judicial power.