CYIL vol. 10 (2019)

ONDREJ HAMUĽÁK – MÁRTON SULYOK – LILLA NÓRA KISS CYIL 10 ȍ2019Ȏ (i) The original (‘old’) formof constitutional complaints has been preserved, meaning that within 60 days of the delivery of the final judgments, individuals and organizations affected by this decision can petition the Court to review the case regarding the application of an unconstitutional piece of legislation affecting the outcome; i.e., in effect, this complaint also serves the purposes of norm control, however within the context of specific judicial proceedings. (ii) This previous option has been complemented under the Fundamental Law – based on the example of the German Urteilsverfassungsbeschwerde – with the so-called ‘genuine’ complaint, providing an opportunity for affected individuals and organizations to turn to the HCC against a judicial decision, where unconstitutionality can be justified as influencing the decision on the merits of the case, or it can be argued that the HCC should decide the case by reason of an underlying constitutional question of fundamental importance. In this case, the deadline for submission is also 60 days, from the delivery of the final judgment, if remedies have been exhausted or are otherwise unavailable. Taking German examples and the practice of the ECtHR into consideration, the HCC has moreover created its own admissibility criteria 31 to filter out meritless cases. The exact rules on admissibility can be found on a case-by-case basis in the jurisprudence of the HCC, but the basics are laid out in the HCCA and the HCC Rules of Procedure. 32 Before turning to the arguments regarding the examination of such violations of fundamental rights that have a ‘Chartered’ 33 context, we shall also address new jurisprudence regarding the delicateness of the relationship of EU law and Hungarian constitutional law under the Fundamental Law. The previously mentioned ‘Identity’ (22/2016) and ‘EPC’ (9/2018) decisions set out the HCC’s present view on the points of intersection of EU law and national constitutional law, in the spirit of ‘careful restraint and resourceful engagement.’ Such ‘resourceful engagement’ could have been a first in new HCC jurisprudence already in 2012 when in Decision 33/2012 (VII. 17.) AB, the HCC tackled 34 the media-branded ‘forced retirement’ of Hungarian judges. However, old habits die hard. While the CJEU 31 Pursuant to Arts. 26 and 27 of the HCCA, a condition of submitting constitutional complaints is the verification of personal involvement. [Relevant case law: 3105/2012. (VI. 26.) AB, 3063/2012. (VII. 26.) AB, 3105/2012. (VI. 26.) AB]. Besides involvement, petitioners should among others verify that the application or entry into force of the law or regulation had subjected them to personal or direct violation of their right(s) under the Fundamental Law. [Relevant case law: 3063/2012. (VII. 26.)]. Direct and personal involvement has been dealt with in Decision 3114/2012. (VII. 26.). For relevant literature, see: GÁRDOS-OROSZ F. The Hungarian Constitutional Court in Transition – from Actio Popularis to Constitutional Complaint. Acta Juridica Hungarica . 2012, vol. 53, no. 4, pp. 311-314 or BITSKEY, B.; GÁRDOS-OROSZ, F. A befogadható alkotmányjogi panasz: az első hónapok tapasztalatai (The admissible constitutional complaint: first experiences). Alkotmánybírósági Szemle , 2012, no. 2, pp. 93-95. 32 As defined by 1001/2013. (II. 27.) AB. 33 By ‘Chartered’ context we understand the situation where substantive questions before the HCC might be related to the rights, freedoms, and principles recognised by the EU Charter covered by the scope of application of the Unions fundamental rights catalogue. 34 See CSINK L. Az Alkotmánybíróság határozata a bírói hivatás felső korhatárának szabályairól, Az elmozdíthatatlanság alkotmányjogi fogalma. Jogesetek Magyarázata (JEMA), 2012, Vol. 3, no. 4, pp. 8-18. Online available at: https://jema.hu/article.php?c=193.

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