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Harmony And Dis-harmony in the Office of the Ombudsman And the Constitutional Court of Hungary

2012-131

Máté SzabóGeneral Commissioner of Hungary (2007-2011)

Commissioner for Fundamental Rights of Hungary (2012-2013)

AbstractThe Fundamental Law and the new Ombudsman Act widely changed the

ombudsman system in Hungary that was created in the mid-1990s. This essay examines these changes of four years ago. The research focuses on the alteration of the institution of the ombudsman, how the system changed from separated functioning into a unified system and its new way of relating to the Constitutional Court. The Constitutional Court itself is also discussed.

The Fundamental Law brought several alterations to the Hungarian constitutional system. It came into force on 1 January 2012. Along with many other changes in the public law, it put an end to the four separate

1 This research was supported in the framework of TÁMOP 4.2.4. A/2-11-1-2012-0001 National Excellence Program - Elaborating And Operating An Inland Student And Researcher Personal Support System key project. The project was subsidized by the European Union and co-financed by the European Social Fund. The manuscript was prepared during my guest professorship at the Human Rights Program, Department of Political Science, Faculty of Arts and Social Sciences, Soochow University, Taipei, Taiwan from February to June 2015, with the help of assistant professor of Constitutional Law PH.D. Lóránd Csink, Péter Pázmány Catholic University Budapest, who was member of the team working on popular initiatives to the Constitutional Court at the Bureau of the Hungarian ombudsman 2012-13 and carried out an Open Society Fund research project on this issue in 2014-15. The first version of this article, based upon the data and interpretation of 2013 was published by CEU Press: “Towards an European Type Ombudsman System,” in Péter Krasztev and Jon Van Til (eds.). The Hungarian Patient: 47-59. This is a fully reorganized interpretation based upon the data from the Constitutional Court and ombudsman from summer 2015.

3台灣人權學刊第三卷第二期

2015年 12月頁 3~37

台灣人權學刊第三卷第二期

ombudsperson system and created a single ombudsperson system, where only one person holds this duty. This new system does not mean centralization, but it shows the way how to prevent the dissipation of resources and energy. The former system did not allow for joint, collective protection of human rights. My thesis is that the effectiveness of the protection of human rights is not primarily determined by the number of ombudspersons, but by the person who holds the position and the system – including the preparedness of the staff – functioning behind him or her. The institution of the ombudsperson has independence in the state structure. This does not mean that it is a separate state power. Due to its controlling function it is kind of an outstanding institution, because it cannot be classified into any of the three state powers of Montesquieu’s thesis.

Hungary established the Ombudsman Office in 1995, under a regulation adopted in 1993 (Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights). In the new monocratic structure of 2012 there is one single Commissioner for Fundamental Rights (Ombudsman or Ombudsperson). Under him/her is a Deputy Commissioner for Fundamental Rights, responsible for the protection of the interests of future generations, and a Deputy Commissioner for Fundamental Rights, responsible for the protection of the rights of nationalities living in Hungary. It is important to mention that the new model’s highest innovation is the ability to initiate abstract norm-control. However, I would also like to highlight that this innovation was only illusory.

Keywords Constitutional Changes in Hungary, Constitutional Court, Constitutional Review, Fundamental Law of Hungary, Ombudsman.

The author of this essay was the General Commissioner, ombudsman, of Hungary from 2007 to 2011, then the first new type of ombudsman, the Commissioner for Fundamental Rights of Hungary from 2012 to 2013. Two years after the end of my mandate as ombudsman and acting again as an in-dependent social scientist, with this study I intend to contribute to the debate

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The Hungarian Ombudsman

whether the new Fundamental Law (Alaptörvény) of 2011 was justified.2 From the point of view of the subject, the ombudsman and the Constitutional Court (Alkotmánybíróság), I will ask if it was a progression or regression within our constitutional development.

This study may result in some insights about the problems of constitutional review and popular participation in Europe and elsewhere (Lupo, 2015: 114-129). It focuses on the development, and the initial stages of that development, and on constitutional review from an insider’s position as the then ombuds-man. Analysis of these rapid constitutional changes and their effects may help to reconsider prospects and dead ends of institution-building. Such a constitu-tional review may be useful for Taiwan, where there is an ongoing discussion on constitutional changes and the roles of the Control Yüan and the Judicial Yüan.

1. The Constitutional Court and the Ombudsman in the New Fundamental Law and its Practice in Hungary

Hungary was the latest post-Communist country to change its constitution-al order. The Communist-type constitution was transformed by acts of par-liament in 1989, and later, and more thoroughly, by decisions of the Constitu-tional Court. Still it preserved its old structure and some of the paragraphs as well. Constitutional review in the post-authoritarian regime helped to balance different impulses from the political system in favour of solutions based on a justified and legitimate rule of law. Post-Communist states copied former post-authoritarian models (mostly the German and the Austrian). The Hungar-ian Constitutional Court had a strong balancing role over law-making and im-plementation controversies until 2010. Constitutional Court decisions played a central role within the constitutional and political process of post-Communist Hungary.

The further preservation of the “Stalinist” constitution after democratic

2 There are different translations of the name of the new Hungarian constitution. The Hungarian term “Alaptörvény” is translated into English, following the German Grundgesetz, as Basic Law or, using the language of the European Charter for Fundamental Rights, as Fundamental Law. In this study Fundamental Law will be chosen since this is how it appears in a bilingual form (English/Chinese) issued by the Legislative Yuan in Taiwan (ROC): LY 2014/08 “The Fundamental Law of Hungary” version 1 October 2013, pp. 1-57 English. The Constitutional Regulation of the Ombudsman, see p. 40 (English). It will be referred further as LY 2014/8. See Tóth (2012: 379-433) and Balázs, Varga & Csink (2012).

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transition was a “scandal” in the eyes of some of the anti-Communist Chris-tian-Conservative parties (Fidesz, KDNP), and a symbol of the continuity with the past for the Socialist party (MSZP), which transformed itself from being a Communist party (MSZMP) to a European-type Social-Democratic Party by internal decision in 1989. To change the constitution a two thirds majority of votes was required. Despite the fact that between 1994 and 1998 a coalition formed by the Socialist (MSZP) and Liberal (SZDSZ) parties had such a majority, they were unable to produce the basic change of the constitu-tion because of their internal tensions (Blokker, 2010: 86-90).

However, when the Alliance of the Young Democrats-Hungarian Civic Alliance, and the Christian Democratic People’s Party (Fidesz/KDNP), (Fia-tal Demokraták Szövetsége-Magyar Polgári Szövetség, and the Keresztény-demokrata Néppárt) gained an overwhelming two thirds parliamentary ma-jority and formed a government in 2010, this resulted in a series of legislative re-modellings of the former, unchallenged role of the Constitutional Court.3 The general elections in Hungary in spring 2010 resulted in an overwhelming victory by the Fidesz/KDNP party alliance. Winning more than two thirds of the seats, this party achieved a qualified majority that empowered them to define all political positions and change the Constitution of the country, something that finally took place in April 2011. The new constitutional order entered into force at the beginning of 2012. Moreover the years 2012-13 have brought about a radical change; extremely quick and substantial constitutional changes were introduced.

FIDESZ was originally a dissident student movement, then a small, radical

3 The Hungarian parties mentioned in this study are Fidesz - Magyar Polgári Szövetség, Fidesz –MPSZ; Fidesz-Hungarian Citizen’s Alliance. Within the Alliance there are different social and political organisations, among them the Christian Democratic Party (Kereszténydemokrata Néppárt, KDNP), the recent government coalition partner. Other parties were important for the development of Fidesz as well, such as Független Kisgazda és Földmunkás Párt. FKGP, Independent Smallholders Party (electorally irrelevant since 2002); Magyar Demokrata Fórum, MDF Hungarian Democratic Forum (electorally irrelevant since 2010); the Socialist party, Magyar Szocialista Párt, Hungarian Socialist Party, MSZP (still relevant as one among the three Socialist parties; the other two are made up by former Socialist Prime Ministers. This resembles Taiwan.); the Liberal Party Szabad Demokraták Szövetsége, SZDSZ, Alliance of Free Democrats (electorally irrelevant since 2010. There is one single MP in the present parliament, borrowed by another party). The two latter parties governed in coalition 1994-1998, and 2002-2009 when Liberals, SZDSZ left the coalition and the Socialists governed until 2010 elections won by Fidesz on their own. The Hungarian party system developed from 1990-2014 from a multi-party system to a hegemonic party system. For a recent overview see: Tóth and Török (2015).

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eco-liberal party coming from the student scene. Later it strategically devel-oped to become a successful hegemonic party of the centre-right, with an an-ti-Communist, anti-leftist, anti-liberal, and later anti–European character. We may differentiate stages within the development of FIDESZ.4

• FIDESZ as a dissident movement between 1988 and 1990.• As a party established in 1990, becoming a small Liberal party (in

an electoral alliance with the SZDSZ until 1994) within a growing multi-party system,

• Fidesz–MPP, later Fidesz-MPSZ (changing its name to be a catch-all party; its model was the CDU of Germany), maintained a role as the leading force of the centre-right between 1992 and 1998.

• As a governing party in an alliance of two, then large, centre right parties (MDF, FKGP) which have since disappeared, between 1998 and 2002.

• Fidesz–MPSZ after the 2002 elections becoming the leading mobilizing party of the right-wing opposition, with sharp extra–parliamentary conflicts against the Socialist-Liberal (MSZP-SZDSZ) coalition government.

• In 2010, regaining control of the government in alliance with the small semi-autonomous Christian Democratic People’s Party (KDNP) and assuming predominance with a two thirds majority.

• Fidesz gained, with the help of a new electoral law, a two thirds majority again in the 2014 general elections, though lost it in 2015 following some by-elections (owing to the death of an elected member, or someone leaving parliament for another position).

Ideology and policies since 2010 in the government: Fidesz–MPP as the

4 Fiatal Demokraták Szövetsége, FIDESZ, Alliance of Young Democrats used this acronym in the 1990 and 1994 elections. It later changed the acronym in 1998 to Fidesz- Magyar Polgári Párt, Fidesz-MPP, Fidesz- Hungarian Citizen’s Party, and in May 2003 the acronym Fidesz,-Magyar Polgári Szövetség, Fidesz –MPSZ appeared Fidesz-Hungarian Citizen’s Alliance. Within the Fidesz/KDNP Alliance there are different social and political organisations, among them the Christian Democratic Party (Kereszténydemokrata Néppárt,KDNP) which was an autonomous party, but is now a satellite organisation of Fidesz, even though it has its own leadership, seats in the parliament and members in the government. We may see at the moment the Alliance as one political unit with organisational differentiation. See my analysis of the development of FIDESZ to Fidesz MPSZ: Szabó (2015).

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governing party in a coalition with KDNP acted like a populist government, stressing national and Hungarian values against globalisation and Europeani-sation, and the Christian character of the government policy against Socialism and Liberalism. It developed a Euro-sceptic or even Euro-pessimistic attitude, rather like that of the recent British Conservative Party government (Pinelli, 2015).

Since 2010 the Prime Minister and leader of Fidesz is Viktor Orbán, who has been an unchallenged “strong and popular leader” of the party since its establishment (Mandák, 2015). Cooperating in the leadership are some of the still influential “elders” of the student movement from 1988 (László Kövér, the current president of the parliament, and János Áder, the current state pres-ident). Orbán is a very strong Prime Minister, doing his job in a populist way having a common touch with the supporting masses, by means of the mass media, demonstrations and marches, and pseudo-direct democratic question-naires on the policy of the government.

The foreign policy of Fidesz tends to favour the East since the USA and the main EU states were sceptical or have even rejected the “special Hungarian way of governing”. This made “opening up to the East” (keleti nyitás) a ne-cessity. This involves Russia, the post-Soviet states, China, Egypt and others as partners of Hungarian foreign policy and trade, counterbalancing an “ex-clusive Western/European orientation”. Orbán’s political style is “going with the people”, maintaining national and rural plus ethnic community identity against the “globalised-cosmopolitan Social-Liberal parties and their allies” and “supranationalism” (ie. the EU).5

Fidesz’s top political leaders attack constitutional institutions, which, ac-cording to them, manipulate the popular will. Their constitutional idée di-rectrice—using an expression of the French constitutional lawyer, Marcel Hariou—is the sovereignty of parliament representing the nation against non-elected independent bodies, such as the Constitutional Court and the ombudsman.6 In practice they ignore critical signals and feedback from these

5 Jan-Werner Müller has written remarkable criticism on the Fidesz-led Hungary since 2010, especially on the Fundamental Law and on foreign policy orientation in different publications, such as http://muse.jhu.edu/journals/jod/summary/v024/24.2.muller.html (accessed 19 May 2015). See also, Bánkúti, Halmai and Schepple (2015).

6 See websites and interviews of politicians of Fidesz: http://www.repassyrobert.hu/index.php?include=hirek&sh=KRM&shd=2010 (accessed 22 June 2015);

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important agents of the rule of law. Relying on an unlimited use of their dom-inant two thirds majority, the government has both ignored and even tried to silence them. This was very obvious in the case of the termination of the rel-evant financial-budgetary powers of the Constitutional Court after a decision which was unpleasant for the government.7

The Constitutional Court and ombudsman are very important institutions according to the letter of the Fundamental Law (Alaptörvény).8 According to this, constitutional complaint (alkotmányjogi panasz) is the most power-ful competence. A complaint can be launched also against a decision of the courts. This possibility was not open before the Fundamental Law came into force.9 The elected tenure of the members of the Court has been extended; procedures for nomination of members and their election have been changed and the number of members has been increased from eleven to fifteen.

All in all, this looks like the extension of the power of the Constitutional Court. However, in the political praxis since 2010, the strong inclination of Fi-desz to representative democracy, and to the popular will as represented in the parliament has determined the policy of Fidesz and its government towards the Court. The most obvious reduction of power followed when the Court made a painful decision on severance pay in the public sphere, contrary to the will of the Fidesz government. In reaction the jurisdiction of the Court over financial and budgetary matters was reduced such that the Hungarian budget does not reach an equilibrium as defined in the Fundamental Law. By nomi-nations and elections the members of the Court became more and more cen-tre-right oriented. This was compounded by the election of a new president, Barnabás Lenkovics, in 2015, which shows the right wing orientation of the

website of Dr. Róbert Répássy, State Secretary of the Ministry of Justice since 2010. In a famous interview with Dr. László Kövér, Chairman of the Parliament since 2010, he spoke about the Constitutional Court as unnecessary, making decisions like the auguries ancient Rome priests based on an analysis of the flight of birds or the intestines of dead animals. Interview in the weekly “Heti válasz” March 2013.

https://hessenwinkel.files.wordpress.com/2013/03/kc3b6vc3a9r-interjc3ba.pdf (accessed 23 June 2015).7 Such “rough and unfair play” between state powers as found in that among the Executive, Judicial and

Legislative Yuans is well known in the history of Taiwanese Constitutional review too. For the conflicts of the Judicial Yuan during its development after 1990 see Chan and Hsu (2014); Lin (2012).

8 See Wikipedia Fundamental Law of Hungary (accessed 12 August 2015). https://en.wikipedia.org/wiki/Constitution_of_Hungary9 LY 2014/8. Pp. 36-37, 55. See the summary of the critical junctures for the actio popularis and on the new constitutional complaint

of the then President of the Constitutional Court, Péter Paczolay. Paczolay (2012).

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Court. According to critics, the Constitutional Court has lost its independent authority; radical critics speak of the demise of the Hungarian Constitutional Court.10

The Fundamental Law concentrated the power of the ombudsman. Instead of having four ombudsmen, a one ombudsman organisation with extended authority (a so-called monocratic organisation) was established. The initial set-up of the post in Hungary before the constitutional reform/change includ-ed a general commissioner, and three specialised ombudspersons for ethnic minority rights, environmental and sustainability rights, freedom of informa-tion and data protection rights. They had a common office, divided according to their respective specializations. The transformation resulted in one unified ombudsman, called the Commissioner for Fundamental Rights, with a unified bureau.

The new type of ombudsman, the Commissioner for Fundamental Rights received new authorities as an interface between civil society, citizens and NGOs and the Constitutional Court.11 Between 1989 and 2011, popular veto (actio popularis) was a unique method of popular participation in the consti-tutional review process in Hungary. There was an open channel for citizens

10 http://www.ekint.org/ekint/ekint.head.page?nodeid=21 Criticism in the research of the Eötvös Károly Közpolitikai Intézet (Eötvös Károly Public Policy Institute,

established by László Majtényi, former data protection and freedom of information ombudsman (1994-2000) (accessed 31 July 2015); NGOs on the state of rule of law in Hungary 2010-2014 (accessed 3 June 2015)

http://helsinki.hu/wp-content/uploads/Disrespect_for_values-Nov2014.pdf11 In the political and constitutional system of Taiwan (ROC) the control function is institutionalised in

the Control Yuan. Although it has much in common with a European type ombudsman, yet there are important differences:1. The Control Yuan is an independent branch of division of power; in Europe the ombudsman is not

seen as its own branch of division of power, but as transcending the other powers.2. The Control Yuan is a collective body, having some resemblance to a type of senate. In Europe we

have mostly individual ombudsmen, and even if they are collective, they do not have any senatorial function, like impeachment of president etc.

3. The Yuan is the overall controller of the budget. This function is united with an ombudsman’s institution only in Israel, nowhere in Europe.

4. In Europe, ombudsmen institutions have no power of sanction, only a power of argument. The Control Yuan has a strong system of sanctions.

Source: See publications of the International Ombudsman Institute on the different global models of ombudsmanship incl. CY in the Asia Pacific regional development. Of the European Ombudsman and of the European Ombudsman Institute o the European regional systems.

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and their organizations to launch ex post constitutional review and to bring their motions to the Constitutional Court concerning every valid legislative act, they held to be unconstitutional, without any motion of interest. The Fun-damental Law terminated this possibility. Instead, relying on the expertise of the Council of Europe’s Venice Commission, it introduced the ombudsman as a filtering mechanism, collecting the motions of individuals and organiza-tions and selecting them for the Constitutional Court, according to the om-budsman’s decision.12 The team doing this was organised within the unified ombudsman’s bureau, which was also reorganised with the new functions given by the Fundamental Law. The new Constitution unified the institution ombudsman, by stipulating one single ombudsman instead of the previous system of four ombudsmen. Ethnic minority rights, and environmental and sustainability rights become the task of two specialized deputies of the gen-eral commissioner, each leading a working group within the unified bureau. The function of freedom of information and data protection was integrated into an independent authority, which is not an ombudsman.13

The reason why this function was assigned to an “independent authority” was that freedom of information and data protection fulfil a role in public ad-ministration. The ombudsman formerly assigned to this function had decided on quite high fines against business organisations endangering freedom of information and data protection, and had given permits for establishing public and private surveillance systems. Such functions were far beyond those of a European-type of ombudsman, who has no administrative authority. Anoth-er argument lay in a recent development of EU law, which required member states to establish an independent authority for this function that was not nec-essarily an ombudsman institution.14

Again, as in the case of the Constitutional Court, the Fundamental Law aimed at the extension and concentration of power of the institution of the om-budsman. But the Fidesz government ignored it in praxis. None of my annual reports, from 2010 to 2013—either as chief ombudsman or as Commissioner for Fundamental Rights—were discussed in the plenary session of the par-

12 Venice Commission on the Fundamental Law, in Tóth (2012: 491-537).13 See 2014/8.40, pp. 54-55 Analysis of Hungarian constitutional lawyers on the new regulation: Csink and Varga (2014: 242-283).14 It has its own report to the unicameral Hungarian Parliament: Nemzeti Adatvédelmi és Információs

Hatóság beszámolói 2014-2015. Budapest: NAIH, 014-15.

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liament, which is a duty of the parliament according to the new Fundamental Law. The Prime Minister publicly criticised me as a “counterrevolutionary” a term used for critical, or better, dangerous thinkers in the Communist era. This was said against the leader of an independent institution set-up by the Fundamental Law.15 Populist discourses from leading Fidesz politicians—the mayor of the capital city, Budapest, in the first case, and a Budapest district mayor in the second case—tried to marginalize the human rights position of the ombudsman in 2013 on homelessness and in 2014 on medical help and service to drug addicts.

After the constitutional change in Hungary, the members of the Constitu-tional Court and of the ombudsman board could have continued their tenure in the new setting, in the new legal environment, with changes in their au-thorities. No one decided to leave because of the constitutional change. The only exception was the freedom of information and data protection ombuds-man who was not offered the presidency of the new independent authority, and had to leave his position by the force of the Transitory Provisions of the Fundamental Law.16 He appealed to the Court of the Council of Europe in Strasbourg against this arrangement, which after three years ordered the state to compensate him financially and gave a public redress to the Hungarian government.

The recall of the ombudsman for freedom of information and data protec-tion was a typical excess of the unbounded constitutional power of the two thirds centre-right majority, which had to be corrected according to the Euro-pean human rights principle of equal opportunity. It could have been avoided by more prudent procedure in applying the same principles in this case as in that of any other ombudsmen or constitutional court members by giving

15 My decisions on the popular petitions in the case of higher education to the Constitutional Court were criticized by the Prime Minister of Hungary: “The Prime Minister of Hungary, Viktor Orbán, declared at a public event of the youth organization of his Fidesz party, Fidelitas, that there are counter revolutionaries against his new higher education policy, and the name of Máté Szabó ombudsman was mentioned.”

Index.hu/belfold/2012/07/24/kik_orban ellenforradalmarai/. (accessed 10 May 2015) (my translation). The Prime Minister made his statement when he was defending the government’s higher education

policy, which, up till now, is under professional and popular criticism, and provoked waves of protests and demonstrations. The ombudsman was mentioned as a “counterrevolutionary” (ellenforradalmár) deliberately using the language of the former Communist discourse. His attack was based upon two of my initiatives against the new regulation of higher education by government decree.

16 On the issue of the termination of the freedom of information and data protection ombudsman and the Strasbourg Court decision, see: Szabó and Hídvégi (2014: 70-72).

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them a chance to continue their tenure. Unfortunately, a series of such excess-es came about during the application of the Fundamental Law, and for this reason many amendments—five in 3 years—had to be made, and they were sometimes in contradiction with each other.17

2. Ombudsman: Independent Institution as Intermediary PowerMy thesis is that the independent character of the ombudsman institution

makes it a relevant partner of the Constitutional Court, and an acceptable in-termediary ‘gatekeeper’ between popular demands and the Court. The objec-tive and justification behind the institution of ombudsman is the investigation of complaints and petitions from the citizens by an autonomous and independent body. Therefore independence is a crucial element not only for its effectiveness but also for its freedom and prestige both in Hungary and elsewhere in Europe (Kucsko-Stadlmayer, 2008: 221-233). Below I will resume and briefly discuss the requirements of independence and the variety of ways of handling this in European law and political systems.

Jurisprudence does not assign the ombudsmen to any of the three state powers. The basic idea of independence from the executive power serves the prime object of the ombudsman’s control of the administrative branch: the institution must not be bound by orders of any administrative body. The om-budsman shall take measures exclusively on the basis of the Constitution and the national legal order. His mandate has a specific term—mainly six years not to be bound to a legislature/governmental period, which is usually four years or it may be unlimited as in Northern Ireland, or in Finland with the post of Chancellor of Justice. He/she has special powers in the course of an investigation. Administrative bodies have a duty to supply information and to react to the recommendations in due time, granting free access onto their premises. Sanctions may be imposed when these obligations are not fulfilled.

17 There is a wide range of criticism on the role of the Fundamental Law and of the new constitutional order in Hungary. (Bánkuti, Halmai & Schepple, 2012; Jakab and Sonnenvend (2013: 102-138); Bozóki (2015).

The Reports of Freedom House on Hungary since 2010 on the decline of the rule of law and stability of democracy which resulted in the disqualification of Hungary as an unstable democracy, the only one among the former “Visegrad Four” countries (Hungary, the Czech Republic, Slovakia, and Poland) see Puddington (2015).

I agree with most of these arguments. However, I think the problems are not, or only partly, based on the new constitutional regulations. Rather, the problem lies in a political situation with a two thirds majority party/alliance which does not tolerate rulings by the Constitutional Court, which it can avoid based on its parliamentary supermajority.

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A certain degree of independence from parliament shall be guaranteed. Appointment and removal is bound generally to the decision of a qualified majority—two thirds in most cases—of the legislative power (exceptionally, in the UK, he/she is appointed by the Queen). But the ombudsman is usual-ly nominated by an independent committee, as in the Netherlands, or by the president of the republic as in Hungary. There is a specific term of office usu-ally exceeding the parliamentary term (or without a time limit) and the om-budsman works closely with the parliament (viewing parliamentary reports, participating in plenary sessions or at committee meetings, influencing legis-lation by submitting proposals, modifications or initiating constitutional court procedures).

Independence from the judiciary might result either in an extensive control, as in Sweden, Finland and Poland—but even in these countries the ombuds-men voluntarily restrict their control to procedural or administrative ques-tions—or in partial control, as in Austria, Slovenia and the Czech Republic, or in no control at all, as in Denmark, France and the Netherlands. In Hungary the ombudsman has control only over judicial execution. Independence from the head of the state (president, monarch) is generally guaranteed. Their ac-tivities are mostly excluded from the ombudsman’s control except in Sweden, where the justitieombudsman was instituted in 1809 to supervise the King, his officers and the courts.

Independence, as a general criterion, can be divided also into subcategories such as institutional, organizational, financial, operational and personal inde-pendence. Operational independence in a narrow sense means freedom and power in the course of proceedings, with ex officio investigations, strong powers during the procedure and freedom of interpretation such as the re-quirements of good administration and a fundamental rights approach. Or-ganizational independence means freedom in matters of organization and human resources, in selecting and recruiting staff (the staff are usually civil servants, who are protected by the Civil Servants Law in Hungary). Personal independence covers requirements for high qualifications (e.g. a law degree, scientific or practical experience) and strict requirements in person (e.g. age limit), incompatibility (an exception is the UK and Sweden) to ensure politi-cal independence (prohibition of participation in any political party activity in many countries, including Hungary). Outstanding remuneration (mostly determined by the Ombudsman Act – usually the salary of a minister or a

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chief judge) ensuring economic independence and, usually, relative immu-nity against criminal prosecution (similar to that of MPs) are also important guarantees of personal independence. Financial independence (in accordance with the Council of Europe Recommendations) is guaranteed by state funding without, as in Hungary, or with, as in Slovenia, the ombudsman’s proposal be-ing directed to the parliament, to the state president, in Bosnia and Hercegov-ina, or to the minister of finance in Austria. The European ombudsman has an independent budget since 2000.

Despite all these important legal guarantees and procedures aiming to pro-vide an independent institution, it is not easy to do so in a political realm built on polarized party competition and sharp political conflicts. There are many techniques developed by the different agents of the political system to influ-ence independent accountability institutions according to their political will, engagement and interest. Whistleblowing on political enemies, media cam-paigns with popular political slogans, offers of reappointment or appointment to other high ranking positions for the ombudsman when his mandate termi-nates, or simple ‘messaging’ to the ombudsman by high ranking politicians are just some of the examples. And when, as in Hungary or Taiwan, political culture is built on a greatly divided public then the public is almost unable to view an independent institution and its leader as independent. To maintain independence and deal with conflictual legal issues, disputes and taboos is an everyday fight for the ombudsmen in some countries. However, in well-es-tablished democracies the high prestige and long tradition of the institution provides more space for independence, even if the rules of incompatibility are not as high as in some of the new democracies where these sophisticated rulings may produce much less convincing results. Trust in the institution by citizens may be reached only by permanent feedback relating to the efficien-cy and convincing performance of the institution in everyday life, whether in small or big issues, conflictual matters or cases covered by the media.

3. Protecting Human Rights after the Transition to DemocracyThe development of Constitutional Court proceedings is linked to the de-

velopment of correctional mechanisms and constitutional balancing bodies in Europe after the replacement of authoritarian systems in Austria, Germany, Spain and Poland (Sadurski, 2008). In Hungary, the Constitutional Court was created in 1989, and assumed a creative and widely recognized role in reshap-

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ing the constitutional system of the political/democratic transformation. The Constitutional Court was one of the main actors in building the basis of the new Hungarian constitutional system by its basic decisions, like the abolition of the death penalty, interpreting the state president’s role in the appointment of officials or instructing the army, or in the use of referenda as an institution of representative democracy. The ombudsman was elected in 1996 for the first time, so this institution has only 20 years of history in Hungary, and it was established in the consolidation period of the new Hungarian democracy, long before the accession of the country to the EU in 2004 (Sládecek, 2000).

The institution of the Hungarian ombudsman followed the Spanish-Polish human rights ombudsman model (Pegram, 2010). It had proactive and reactive functions as well as administration-controlling and constitution-protection functions, or functions institutionalizing the resort to the Constitutional Court and even international human rights protection functions (the proposal of ex post reviews of norms in conflict with international treaties). The model was of four, equal ombudsmen chosen by parliament with a common budget of-fice: a general ombudsman, a general deputy, one for ethnic minorities, and one for data protection and freedom of information (Reif, 2004: 168-169).

In 2007 another ombudsman position emerged by the decision of the par-liament and the law on the ombudsman was changed, with the dissolution of the position of the general deputy and its replacement by a new ombudsman, the Parliamentary Commissioner for Future Generations (Jövő Nemzedékek Országgyűlési Biztosa), with a special focus on ‘green’ issues: the environ-ment and sustainability for future generations.18 This innovation led to a shift away from the general ombudsman to the special ombudsmen. Conflict be-tween the general and special ombudsmen arose in various forms. Such con-flict hindered the operation of the institution, as far as I as general commis-sioner (2007-2012), experienced it.

This situation was resolved by the Fundamental Law, which set up a single institution, that of the Commissioner for Fundamental Rights (Az Alapvető Jogok Biztosa), using a phrase from the European Charter of Fundamental Rights, instead of the former Hungarian name of the institution, the Parlia-mentary Commissioner for Citizens’ Rights (Állampolgári Jogok Ország-gyűlési Biztosa) with two, special-focus deputies, who are also elected by two

18 Future Generations Ombudsman (Hungary) http://www.convergeproject.org/sites/convergeproject.org/files/Converge-POSTER-JNO.pdf (accessed 10 May 2015).

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thirds of the parliament, and deal in the fields of the rights of national minori-ties and sustainability and environmental protection. The former independent ombudsman for ethnic and minority rights and the one for environment and sustainability accepted the change of their status to deputies of the general commissioner without their own bureaus. The former divided only by com-mon- budget bound offices were integrated into a unified bureau with new departments and divisions. This move has been criticised as an unnecessary centralization by many scholars of law and administration as well as by poli-ticians of the opposition, but there were also arguments for the unification of the institution in academic discourse and during the parliamentary debate on the new ombudsman law.19

The former post of data protection and freedom of information ombudsman became an independent authority pursuant to the provisions of the Fundamen-tal Law in accordance with EU regulations. There was an independent bureau established and the institution left for another headquarters in Budapest. The new institution is called the National Authority for Data Protection and Free-dom of Information (Nemzeti Adatvédelmi és Információszabadság Hatóság).

Meanwhile in most of the former Eastern Bloc countries, like Albania, Serbia, Poland, Slovakia, the Czech Republic and the Ukraine, single com-missioner systems emerged from the very beginning. In Hungary a type of homogenization and centralization towards a single ombudsman organization occurred later after 15 years of experience of a divided institution.

This transformation of the ombudsman organisation into a single post is not without precedent in contemporary Europe. In France, Norway, Sweden, Lith-uania and Malta, such centralizing trends have prevailed in recent years in the ombudsman systems. The French reform of 2011 was particularly comprehen-sive, bringing together the earlier independent Commissioner for Children’s Rights, the Equal Treatment Authority and a type of institution like an Inde-pendent Police Complaints Board—which were mostly collectively managed and had extensive functions— into new type of single ombudsman, called the Defender of Fundamental Rights (Le défenseur des droits fundamentaux), using the language of the European Charter of Fundamental Rights, as in Hungary, instead of the former French name: the Mediator of the Republic (Le Mediateur de la République). The trend was similar in Malta, Sweden, Nor-

19 www.parlament.hu/irom40/00082/00082.pdf (accessed 25 May 2015).

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way and Lithuania, which carried out a coordination and cost-reducing ratio-nalization by decreasing the number of commissioners to a single body from earlier, more pluralistic organizations.

4. New Relations between the Ombudsman Office and the Constitutional Court

In Hungary, the ombudsmen could resort to the Constitutional Court ex officio within their sphere of competence in order to eliminate constitutional improprieties between 1996 and 2011 (Uitz, 2010). The number of such actions was not high; the general commissioners did not submit more than an average of five petitions annually before the constitutional change. The special ombudsmen, who could only resort to the Court on the basis of, respectively, the Act on National Minorities, the Environmental Protection Act and the Data Protection and Freedom of Information Act, submitted even fewer petitions. Before the Fundamental Law the Court did not deal with the ombudsman’s petitions as ‘star’ cases, even though priority was accorded by the rules of procedure. For years they were not even put on their agenda, either. One should remember that priority was given to the review initiatives on referenda, made by different social and political organizations, which had a strict deadline, and were highly contested in the political community. This function was later transferred from the Constitutional Court to the National Election Committee.

By the actio popularis, ex post review of legal acts by each and every citizen deluged the Constitutional Court with all types of issues, which resulted in about 800 citizens’ petitions of ex post review of norms to the Court annually. Most of them were never considered and have been piling up for the past 20 years. No uniform system of processing was made about the fate of thousands of petitions submitted or, if it was, it was not made public. Their fate was disappearance in the archives of the Constitutional Court, that is, oblivion.

However despite the lack of general rules, the judges used the citizen’s complaints against legal norms as a treasury of cases, from which they could select, to criticize and/or review laws. There was always some popular criticism underlying the masses of citizens’ petitions. The selective use of the initiatives could not be seen as a guarantee of citizen’s participation, which is not a real function of a Constitutional Court.

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Hungary was the only country in Europe, where each and every citizen without any legal interest could initiate ex post constitutional review.20 This overload on the Court was cut by the constitutional reform of 2011. The Venice Commission of the Council of Europe reviewed the text of the new Fundamental Law and it appeared as if it was reducing the unique openness of the Constitutional Court towards popular demands. But the Commission proposed the ombudsman, as the only independent institution in Hungary working with a great number of popular petitions in legal matters, and at the same time having an institutionalized relationship to the Constitutional Court as the intermediary power to receive, review and pre-select them for the Court. The ombudsman remained the channel of popular demand, as citizens were not allowed any more to go to the Court directly without any relation to the opposed norm or rule.

I think that it is mistaken to criticise the new Fundamental Law of Hungary on the grounds that the actio popularis would have been an efficient constitutional safeguard (Bánkuti, et al ., 2012 op. cit .). While all citizens could go to Donáti street, where the Constitutional Court was located in Budapest, yet it seemed useless as there was no legal guarantee their petitions would be considered.21 The Court was unable to deal with this colourful multitude of petitions during the available time and based upon its personal resources. In consequence few initiatives of the Court could benefit from the numerous petitions. The actio popularis opened the way for numerous legal actions backed by political protests, the subject of a great number of citizens’ petitions submitted to the Court. Maybe in giving preference to certain issues, the Court might have pandered to public taste.

In my view, the organization of the Court follows explicitly professional-elitist models. Constitutional courts are the highest courts, entirely independent from politics (hopefully!); they are highly qualified, special forums making universally-binding decisions. They should be neither the spokespersons of the contemporary political majority nor of the social

20 Another interesting case is that of a member state of the Federal Republic Germany, Bavaria (Bayern), where the citizens may turn directly for ex post review to the Constitutional Court of Bavaria. The member states (Länder) of the Federal Republic have their own Constitutional Courts on regional norms, but these are not permanent bodies, but a type of regular meeting of experts from local universities, generally professors of constitutional law.

21 A popular saying: “Everybody can go…to Donati street (mindenki elmehet …a Donáti utcába).

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majority.22 These latter roles are assumed by the parliaments and civil society organizations by the political systems of contemporary democracies. Constitutional courts have to ensure a decision based solely on constitutional-professional arguments based upon human rights and principles of justice, counter-balancing a majority-dominated democracy and majority- dominated society. Their decisions are based on constitutional, legal arguments rather than on majority public opinion. Constitutional courts may draw on the people’s feedback, but are not obliged to follow it. If thousands of petitions object to the issue of abolition of the death penalty, or against asylum for huge numbers of migrants relying only on popular arguments, what else can the Constitutional Court do but reject them?

On the basis of the citizens’ complaints of 2012-13 in the newly organised Hungarian ombudsman bureau, legally qualified and well-trained helpers have contributed to drafting the relevant popular complaints to the Constitutional Court, whether they were submitted by individuals or by civil and political organizations. Consequently, it is not the number of petitions but the quality of their argumentation by which public society may assist in constitutional corrections via the Constitutional Court. For this purpose the unconstrained use of the direct ex post review of norms would be unnecessary, since comprehensive processing may not be expected from the jurist elite organization of the Constitutional Court, but an organization is needed that can provide a suitable screening function and which is experienced in handling civil complaints and has the appropriate level of constitutional law expertise.

The Fundamental Law opened many different channels for the citizens to the Constitutional Court instead of the actio popularis. In particular two more channels of a much more political nature were opened. The Prime Minister or a quarter of the MPs in the unicameral parliament of Hungary may take petitions of their own or of the citizens for ex post review to the Constitutional Court.23 This did not happen in the years 2012-14 as a consequence of the very strong and stable two thirds majority of the Fidesz/KDNP (legislative period 2010-2014). The next general election in 2014 resulted in a less stable two–thirds government majority, which vanished later upon the death and loss of two government MPs and the subsequent victory in two separate by-elections

22 See Comella (2009); Kneip (2011); Sweet (2012).23 LY 2014/8.37. p. 5/b.

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in 2015 in Veszprém and Tapolca of different opposition parties/coalitions.24

Petitions from the Prime Minister: The head of the Fidesz/KDNP govern-ment, Prime Minister Viktor Orbán enjoys a strong majority at least until the next general election in 2018. He is unlikely to be uncertain regarding the legality of legislation by his own government and parliament. Reviews are much more likely in the case of a divided, coalition government unless the co-alition’s cooperation agreement limits use of this opportunity.

Petitions from one quarter of the representatives: This option did not work under the former legislature period (2010-14) because of the stable two thirds majority of the governing parties and the deeply divided opposition in parlia-ment. But it has happened three times since the last elections in 2014, when the two thirds majority weakened. In this way some of the opposition parties gained more momentum, and built stronger cooperation on common benefits against a still very strong government.

These two channels opened by the constitution in principle may gain sub-stance only if there is political support for popular petitions to the Court by political agencies. If it is there, civil complaints may be channelled towards the head of government and/or the cooperating parties of the opposition, in-stead of to the ombudsman. This has not been the case until recently since the Prime Minister did not initiate any such review and the opposition parties rarely cooperated.25

One of the first petitioners to the ombudsman, who criticized the Fun-damental Law itself, was the well-known Hungarian constitutional lawyer, Gábor Halmai, one of the leading critics of the new Fundamental Law. He published his petition in a widely-distributed weekly magazine Life and Liter-ature (Élet és Irodalom) as an open letter.26 He put his argument in a reserved style and reasoned that he was induced to resort to the ombudsman because he had been deprived of his right to petition. There is no doubt that citizens and civil organizations, in the absence of interest, were deprived of this right.

24 On the 2010 and 2014 electoral results and on the renewed party system in Hungary, see: Mudde (2014).25 It is noteworthy that the fourth amendment to the Fundamental Law authorized the president of the Curia,

the Supreme Court of Hungary, and the Supreme Prosecutor to request ex post review of laws. In 2015 they took this opportunity in the case of national security checks for judges. Of course, this had nothing to do with popular or political support. It was a top level judicial elite decision.

26 Gábor Halmai in Élet és Irodalom (Life and Literature) , 14 March 2012. Epa.oszk.hu/02300/…/EPA02334_Fundamentum_2012_02.104-119.pdf (accessed 10 May 2015).

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They cannot turn to the Constitutional Court for a review of norms against each and every law.

However, the Venice Commission’s proposal opened a new channel which forwards the civil petitions for ex post review of norms to a politically inde-pendent organization, the Commissioner for Fundamental Rights, so as avoid any possible conflict of interests in Hungary today. The two above-mentioned channels (via the Prime Minister or a quarter of the MPs) are entirely of a political character. A petitioner may resort to a politically neutral channel, a channel not committed to the government or the opposition for an ex post review of norms, unless one has a direct interest in the issue at stake, which entitles one to petition the Court directly. Consequently, the three channels of mediation cannot be considered scarce, and in this way various alternatives appear in the Fundamental Law for the citizens to petition the Constitutional Court.

5. The Start of the New MechanismThe workload of the Constitutional Court became heavy by the end of 2012.

The petitions sent by the ombudsman, some of which affected many people and were of vital importance in many cases, were neither discussed nor decid-ed by the Court in the course of the year of submission to the Court. The ex-perience gained in the first quarterly of 2012 has to be added to the fact, that there was almost no petition of this new type. Petitioners did not even attempt to maintain their old petitions, despite the Fundamental Law permitting a six month deadline to do so.27 Consequently, the ombudsman resubmitted the pre-vious ombudsmen’s petitions, which was possible in the frame of the deadline opened by the provisions of the Fundamental Law. Preparations in receiving the new type of civic petitions were ongoing in this period at the bureau of the ombudsman.

In February 2012, upon the request of the Constitutional Court, the Com-missioner for Fundamental Rights, with reference to the Fundamental Law, maintained all the petitions that were submitted before 1 January 2012. The ombudsman office maintained the ongoing petitions of the former Parliamen-tary Commissioner for Future Generations regarding the rules for site autho-

27LY 2014/8. P.55.19/3.

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rization,28 the regulation of the noise emitted at cultural festivals29 whilst the petitions regarding the Dunakeszi Marsh and the Páty golf course project (both populated settlements in Pest County) were partially maintained and comple-mented.

The Commissioner for Fundamental Rights submitted in his own name the petitions submitted before 1 January 2012 by the Parliamentary Commission-er for Data Protection and Freedom of Information which had not been heard by the Constitutional Court before that time (with two exceptions), since the new Hungarian National Authority for Data Protection and Freedom of Infor-mation was not entitled to turn to the Constitutional Court.30

Since 2007 the Parliamentary Commissioner for Citizens’ Rights turned to the Constitutional Court five times. Some of these petitions were rejected; others were held to be devoid of purpose by the Court.31 The Constitutional Court rejected the ombudsman’s petition requesting the annulment of the pro-visions of the decree of the Józsefváros District of Budapest on sanctioning scavenging because the representative body repealed the legislation in com-pliance with the new Act on Misdemeanours.32

In 2012 the Commissioner for Fundamental Rights turned twice to the Constitutional Court ex officio for ex post review of norms on the basis of the ombudsman’s competence to submit a petition: first the provisions of the Act on Misdemeanours allowing the detention of minors was challenged.33 Then an annulment of the provisions on child-care allowance was requested.34 In both cases, a number of proposals for legislation were put forward.

28 Government Decree 358/2008 (XII. 31.) regarding the site authorization procedure and rules of notification. What is distinct in this case is that according to its file number (3255/2012. (IX. 28.) CC) it was a ruling. However the operative part makes it clear that it was passed as a decision by the acting council.

29 The limit of noise pollution deriving from certain activities with regard to protected areas is regulated by Appendix No. I-II of KvVM-EüM joint ministerial decree No. 27/2008 (XII. 3).

30 http://ajbh.hu/allam/aktualis/htm/kozlemeny20120423.htm (accessed 17 August 2014).31 The petition requesting the annulment of Subsection (2) of Section 3 of the Strike Act was rejected by

the Constitutional Court with its decision 30/2012. (VI. 27.) CC. The Court also dismissed the petition in terms of Subsection (1) of Section 6 of the Act XLVII of 2009 on the system of criminal records.

32 According to a local government provision, homeless people who make a living from rummaging through garbage are to be sanctioned by a fine and if they fail to payment they are to be incarcerated.

33 AJB 3298/2012 (precedent: 5980/2010).34 AJB 1041/2012 (precedent: AJB 2293/2011).

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The first petitions of citizens and their organizations to the Constitutional Court via the newly organised ombudsman institution appeared in the second quarter of 2012, especially after Professor Gábor Halmai’s petition gained much press and media publicity, together with the first remarkable amendment of the Fundamental Law in response to it at the end of the year. Following these developments, petitions began to arrive in 2013 massively, in groups and frequently directly to the ombudsman. These were in many cases organized protest actions submitted as part of protest campaigns organized by civil soci-ety organizations sometimes by political parties and trade unions. The flow of petitions preserved this dynamic until the end of 2013. As a result, around a thousand petitions reached the Court between 2012 and 2014.

In 2012-13 petitioners’ expectations grew. The Commissioner for Funda-mental Rights and his team faced a white hot mobilization of petitioners, es-pecially of protesters. Significant new types of conflicts and civil campaigns were presented to the ombudsman, as groups submitted their petitions seeking publicity for their demands, and aiming to obtain a legally binding decision by the Constitutional Court on their special issues. The new constitutional window was open for the public and the Court could not respond as fast as the petitions came from the ombudsman.

The new type of petitions were preselected, well-argued and because of civic expectations, media attention focused on the new type of petitions via the ombudsman. As a result it was not possible to pile them up for forever at the Court as had happened before. For the ombudsman office, this level of the inflow of petitions had to be managed. A new department was established for this purpose with the best and most qualified personnel and they were devot-ed to the new task, so they could catch up with the high input of the petitions from individuals and organizations. This was made easier by the high num-ber of multiple petitions, with the same text, in the framework of coordinated legal protest actions and civic as well as political campaigns. In the protest culture of the Federal Republic of Germany and Austria where parliamentary petition committees existed for citizens’ complaints, white hot mobilizations have long been standard. Collective petitions signed by even more than a mil-lion people joining online are not rare, especially for environmental issues.

My mandate as ombudsman, as well as that of my deputies, expired in Sep-tember 2013, according to the six years laid down by the Fundamental Law. The new ombudsman, Lászlo Székely, a civil law professor was elected to

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the position by the parliament.35 The new ombudsman declared that he would pass citizens petitions to the Constitutional Court only in very rare and, very well argued cases.36 The ombudsman is not a postman, he remarked. After experiencing this higher threshold, the petitioners of civil and political society used this possibility less and less.37

6. Fundamental/human Rights Issues in the Petitions Based on Citizens’Initiatives Handled to the Constitutional Court 2012-2013

Around 1000 petitions arrived at the Office of the Commissioner for Fun-damental Rights by the end of 2013. In these petitioners put forward consti-tutional objections to existing legislation, either partially or entirely. A large number of these petitions submitted to the ombudsman had a considerably similar content or they were of similar nature. Approximately one third of the letters were repetitions of the same petitions from protest campaigns, some with minor additions, criticizing the rules for the election of the president and the members of the Media Council. They were in the form of a letter open for signature on the internet and sent to the ombudsman as a form of protest.

Using my official competence I submitted petitions on public initiatives 27 times in the first 18 months of the newly formed mandate. Together with my own ex officio initiatives I went to the Constitutional Court 35 times during this period. There are still five motions to the Court sent by myself as om-

35 It is interesting to note that, since 1996, every general/chief ombudsman came from the same Law Faculty of ELTE University: Katalin Göncöl 1996-2001 (Criminology), Barnabás Lenkovics 2001-2007 (Civil Law); László Székely is professor of Civil Law of the same Faculty and I am professor of political science in the Faculty of State and Law, Eötvös Loránd University. The interview with László Székely is available at www.jogiforum.hu/hirek/30424 (accessed 21 May 2015).

36 Specific regulations on the land registration act 17/03/2014. AJB-1327/2014 in process; Section 132 on the Act XIX of 1998 on criminal procedure: abolition of the time limit of pre-trial detention 9 March 2015. AJB-441/2014 in process.

37 The Report of the Commissioner for Fundamental Rights on 2014 , his first full year in office, mentions 62 proposals from citizens and NGOs to the Constitutional Court, and 2 or 3 petition of the Commissioner to the same court. Pages 217 (on Constitutional Court) and 297 (on Office). As to whether one counts 2 or 3 petitions, see: Beszámoló (Report) 2014.

https://www.ajbh.hu/documents/10180/2119301/AJBH+Beszámoló%202014/e4cb6abb-2b16-4f67-bcdf-e24Constitutional Courtb74Constitutional Courta2;jsessionid=A007B79F919184B39100BAEFFBD8 (accessed 21 May 2015). In the introduction ombudsman Székely mentions 2 initiatives to the Court on homelessness. There was probably a third sent after the closing of the introduction, which was included in the last chapter on the activities of the office/administration.

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budsman from 2013, still in process as of May 2015: (1) Procedural rules of the media act; (2) Pension system: prohibition of dual allowances; (3) New Civil Code-scope of relatives; (4) Exclusion from public work; (5) Rules on community coexistence. The issues described in the petitions aiming to reach the Court were very diverse. Of course it is not possible to handle each and every petition to the Court here. Some of the more significant ones in terms of citizens’ fundamental rights and obligations based upon human rights will be presented and briefly introduced below.

6.1 Transitional Provisions or Not?One of them is the petition of Professor Halmai, a former expert working

at the Constitutional Court, concerning the Transitional Provisions of the Fundamental Law. This petition sought the annulment of all the Transitional Provisions or at least some of their provisions. According to this petition, the Transitional Provisions were not part of the Fundamental Law in spite of their peculiar self-definition, as a consequence of which the Constitutional Court should examine them. Halmai argued that the principle of rule of law and legal certainty was violated by the uncertain status of the Transitional Provisions. If the Constitutional Court interpreted the Transitional Provisions as an amendment of the Fundamental Law, then they should be declared ineffective in public law since they were accepted contrary to Article (S) of the Fundamental Law. While subsection (3) of the Closing Provisions of the Fundamental Law authorizes the adoption of transitional provisions related to the Fundamental Law, the word “transition” is used in a different context in the first part of the Transitional Provisions (the part entitled “Transition from Communist Dictatorship to Democracy”). However, the second part of the Transitional Provisions entitled “Transitional Provisions related to the entry into force of the Fundamental Law” contains rules of a non-transitional nature as well, such as the designation of a court other than the courts of general competence, cardinal acts on churches and nationalities, provisions on constitutional complaints, the right of government offices to apply to a court, the organization of the National Bank of Hungary, the Day of the Fundamental Law. The petition was secondarily aimed at the annulment of these non-transitional provisions.38

In its decision 45/2012. (XII. 29.) the Constitutional Court declared

38 Case AJB-2302/2012. – http://www.ajbh.hu/allam/jelentes/201202302Ai.rtf (accessed 17 August 2014).

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the ombudsman’s petition well-founded. The Court pointed out that the parliament overstepped its constitutional authority when it implemented regulations to the Transitional Provisions having no transitional character. The formal rules for legislation are binding also for the constituent power. Therefore the Constitutional Court annulled the Transitional Provisions and each and every regulation the ombudsman challenged. This decision gained wide publicity and media coverage in late 2012 which resulted in the high number of petitions to the ombudsman to be forwarded to the Constitutional Court in 2013.

6.2 Limitation of Free Legal Aid for the Poor In another early case the Act on Legal Aid was challenged.39 This Act

excluded from free legal assistance persons who initiated or participated in procedures at the Constitutional Court. This entailed the violation of the right to remedy for people in a disadvantageous social situation. It discriminated against them, on the basis of their financial situation which deprived them of the capacity to bear legal expenses. Such persons had constitutional complaint as the only legal remedy available. In this respect, the state failed to meet its obligation to ensure objective protection of fundamental rights, equal access to legal procedures and equal opportunities.40 Upon petition, the Constitutional Court declared unconstitutional, and annulled, that provision of the Act on Legal Aid which excluded people from socially deprived backgrounds from being able to use free legal assistance necessary for the effective enforcement of their rights in the course of constitutional complaint proceedings [Decision 42/2012. (XII. 20.) CC].

6.3 Unfair Contract Conditions with StudentsAnother petition related to the government decree regulating student

contracts, the ombudsman initiated the annulment of some sections of the Higher Education Act and Government Decree 2/2012 (I. 20.) on student contracts to be concluded with the beneficiaries of full and partial Hungarian state scholarships which binds students not to leave the country

39 Act LXXX of 2003 on Legal Aid.40 Case No. AJB-1961/2012.– http://www.ajbh.hu/allam/jelentes/201201961Ai.rtf (accessed 17 August

2014).

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for the purpose of employment.41 This was seen by a wide range of student organizations and by opposition parties and movements as chaining them to the country. The European Union empowers free movement for study and work throughout the Union. Global science and technology networks also mobilize elite migration of highly qualified people through the globe.42 The ombudsman suggested that the Constitutional Court should suspend the Decree’s entry into force pending the Court’s review of the submitted petition. Under and outside the authority of the Higher Education Act, the Decree regulates the rules governing student contracts, together with the rights, obligations and the legal consequences of a possible non-performance. Students are obliged to obtain their degree within an adequate period of time and, within 20 years after having received that degree, to establish, maintain and continue an employment in Hungary for a period twice the length of their studies under full or partial state scholarship. Failing to do so, the former students shall reimburse the full or partial amount of the stipend.

This is a restriction of the graduates’ right to self-determination and the right to freely choose their work and profession. The right to work is also violated since in the case of the students’ majority the element of voluntariness will be missing when concluding an employment contract. The regulation of this issue at the level of a decree is incompatible with the Fundamental Law as state support to high-level studies should have been regulated in an Act. The restriction of rights stipulated by the student contract should not have been qualified as indispensably necessary and even as an appropriate instrument for the domestic employment of the graduates. It is also not proportional either.

The Constitutional Court did not review the content of the Decree, but in its decision 32/2012 (VII. 4.) CC the Court stated that both the provisions of the Decree and the authorization by the Higher Education Act were formally incompatible with the Fundamental Law.43 In that decision the Court did not examine the challenged regulations according to their merits. Consequently, parliament amended the Act by incorporating the earlier, decree-level

41 Section 110, Subsection (1), item 23 of Act CCIV of 2011 on Higher Education.42 My decisions on the popular petitions to the Constitutional Court in the case of higher education were

criticized by the Prime Minister of Hungary.43 Through deleting the expression “on terms defined by the Government” from Section 39, Subsection (3)

of the Higher Education Act.

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regulations into the Act. The ombudsman raised an objection to these new regulations in the Act, as well, but the Court refused this motion.44

6.4 Restrictions on the Exercise of Minority RightsThe ombudsman submitted a petition for the annulment of certain

regulations of Act CLXXIX of 2011 on the Rights of Minorities within the framework of an ex post review of norms and the establishment of incompatibility of some of the regulations with an international treaty. The Act provides an arbitrary constraint on minority groups to participate in minority elections providing that only public benefit organizations may have the right to propose candidates in this procedure. In violation of the Fundamental Law, it restricts the rights of national minorities to form their own local and national self-governments, and wrongfully discriminates among their organizations in violation of the requirement of equal treatment.45 The Constitutional Court refused the motion.46

6.5 MediaLaw:BreachingtheRulesofConflictofInterestsOn the basis of nearly 150 petitions of identical content the ombudsman

requested the annulment of certain regulations of Act CLXXXV of 2010 on Media Services and Mass Media. This law, which was passed before the Fundamental Law, received sharp criticism from the Hungarian and international, especially European and American, public. It was amended and modified several times. One may state that this was one of the first laws of the two-thirds majority Fidesz/KDNP government that received concentrated criticism. It was taken as a sign that the new Hungarian government was leaving the path of liberal democracy.47 According to the ombudsman’s petition, the rules governing the election of the Media Council of the National Media and Infocommunications Authority were in breach of the Fundamental Law, because not only is the chairperson of the Media Council simultaneously the director of the Authority, but the functions are interwoven as well, and breach the rules of conflict of interests. Furthermore, several provisions of

44 See Motion AJB-2834/2012 at http://www.ajbh.hu/allam/jelentes/201202834.rtf and http://www.ajbh.hu/allam/jelentes/201202834Ai.rtf (accessed 17 August 2014).

45 See Motion AJB2709/2012 – http://www.ajbh.hu/allam/jelentes/201202709Ai.rtf (accessed 17 August 2014).

46 See Motion AJB-2709 on 4 December 2012.47 Disrespect for European Values in Hungary, 2010-2014 op.cit.

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the Media Act regulating the election, legal status and termination of the mandate of the chairperson of the Media Council together are uninterpretable and inapplicable. This may lead to the breach of the requirement of legal certainty deriving from the rule of law, mock the proper functioning of the Media Council, leading subsequently to the infringement of the obligation of objective institutional defence in connection with the freedom of expression. After the submission of the petition parliament amended the Act.48

6.6 Gay Marriage: Family for LGBTQ People In the petition which initiated the annulment of some sections of Act CC

XI of 2011 on the Protection of Families and the suspension of its entry into force, the ombudsman drew attention to the fact that the concept of family, based on marriage between man and woman, set out in the Family Act, con-stituted discrimination on the basis of sexual orientation, in connection with the rights to private and family life and to human dignity, and unnecessarily and disproportionately restricted the rights to human dignity and to private and family life of those living not in marriage but in some other form of part-nership. 49 In its decision 31/2012. (VI. 29.) CC the Court, as a new measure, stipulated by the new Act on the Constitutional Court, suspended the entry into force of Section 8 of the Family Act scheduled to 1 July 2012.50 Later in decision 43/2012. (XII. 20.) CC, the Court annulled the pertaining regu-lations. It held that no direct or indirect discrimination was allowed among children irrespective of whether their parents lived in marriage or some other kind of partnership. The Court also pointed out that the regulations of the Act pertaining to succession were incompatible with the Civil Code in that they infringed legal certainty. The motion was declared well founded and the con-tested part annulled; previously its entry into force had been suspended by the Court.51

6.7 Freedom of Religion: Breaching the Principles of Fair ProcedureFinally, the right to fair procedure and the right to legal remedy were in-

48 See Motion AJB-3299/2012 – http://www.ajbh.hu/allam/jelentes/201203299Ai.rtf (accessed 17 August 2014).

49 Sections 7 and 8.50 See Motion AJB-3299/2012 – http://www.ajbh.hu/allam/jelentes/201203299Ai.rtf (accessed 17 August

2014).51 AJB-4159/2014. Decision from 24 May 2012.

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fringed when the parliament adopted a decision on the recognition of an asso-ciation conducting religious activities as a church since the Act on Religions did not define the criteria of deliberation. Parliament is not obliged to justify its decision to refuse recognition, and there is no legal remedy against such a decision. That is the reason why the ombudsman initiated the establishment of a violation of the Fundamental Law and the annulment of certain provisions of Act CC VI of 2011 on the Right to Freedom of Conscience and Religion and on the Legal Status of Churches, Religious Denominations and Religious Communities. Furthermore, it ran contrary to the principle of separation of powers in that the parliament assumed the right to decide in a matter that is alien to the political character of the supreme representative body.52 The Con-stitutional Court annulled the Act and the parliament amended the Fundamen-tal Law.53

7. Evaluation and ConclusionThe issues of state control of the media, same sex families and the

new regulation on the churches, as well as on higher education provoked international and Hungarian criticism.54 This way one may state, that core and very much disputed issues were put forward with sophisticated legal argumentation to the Constitutional Court. Of course not every petition was affirmed by the Court, which may be due to different interpretations of the Fundamental Law and its consequences and requirements by the Court as a whole and the ombudsman. Furthermore, if we look at the Court as voting with the consent of its members, then we note that they have their own interpretations. That not all the petitions of the 2012-13 period were decided upon in the summer of 2015 shows that the petitions laid a huge work load on the Court and confronted the institution with basic questions of the new Hungarian constitutionalism which are hard to be decided upon with a sufficient consent/majority in each and every case. Some of the decisions were based upon diverging opinions of Court members, as can be seen from their published dissenting opinions (különvélemény).

Meanwhile the Constitutional Court is a collective decision-making body;

52 See Motion AJB-2303/2012 – http://www.ajbh.hu/allam/jelentes/201202303Ai.rtf (accessed 17 August 2014).

53 AJB-2784/3012 Decision from 1 March 2013.54 See Krasztev & van Til (eds.), 2015. op. cit. and Szente et al . (eds.), 2015. op. cit .

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the ombudsman in the new system of Fundamental Law is a unified and personalised authority. Although I am certainly personally involved, yet, based on the above facts and findings, I am convinced that I may state that the change of the ombudsperson in September 2013 was a change from an open and critical institution to a closed and conservative institution, at least from the point of view of petitions to the Constitutional Court. The same conservative trend is there in the presidency and the membership of the Court, but it is less dramatic and visible compared to the case of the ombudsman, where two diverging personal styles, my own and that of Székely, were an obvious shift to a less citizen-friendly and less critically oriented attitude. However, because the change of the members of Court to Fidesz-based cadres is slow and gradual, depending on the termination of the terms of individual members, a critical attitude is still present as a minority in the Court or at the individual level, and in some cases may play a dominant role.

In summing up the evaluation of the findings of this paper in some historical perspective, we may say that the golden age of citizen’s petitions is over, following the September 2013 personal change of the ombudsman, but the petitions from 2012-13 which become the object of decisions by the Constitutional Court provoked some decisions which were friendly to citizens and NGOs. There are still some petitions of this time in the decision system of the Court, and some new cases came from the new ombudsman too. However the Court only has four petitions from the new ombudsman, while still holding five from my period of office 2012-13.

Some critics say it does not matter, because the time of an autonomous Constitutional Court is anyway over in the Hungarian post 2010-Fidesz majority manipulated constitutional system. I do not share that view. My standpoint was, and is, that the new Constitution opened friendly spaces and options for citizens, and to use them is a much better strategy than to take the position of an eternal prophet and pundit, and condemn the whole of the new system from a distanced position and neglect everything which is useful in the new constitutional setting. My active criticism and participation in the system, which is based on my more general philosophical and ethical arguments and considerations of ombudsmanship, outlined in my other writings, made me a “strange fruit” for the majority constitutionalists of Fidesz (Szabó, 2010). They expected total conformity and neglected the critical alternatives of the new constitutionalism. On the other hand the constitutionalists, who were

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the fundamental opponents of the Fidesz-system see everything as mere manipulation and centralization by the new Fundamental Law. Confronting conformity, I have shown that the new ombudsman institution has teeth against those in power. When the head fundamental critic, Gábor Halmai, ‘tested’ the new constitutionalism of the ombudsman by his petition, he may have been disappointed by the result, as were many other opposition petitioners, and may have spoken about the “ombudsman who did not understand the matter”, but they were blind in my view to the function of the ombudsman and Constitutional Court. These are not for resistance or political opposition, but for the partial criticism and the further development and the sophistication, fine tuning of the existing system of constitutionalism. This may be bad news for the fundamental critics of the Fundamental Law, but there is an existing system of new constitutionalism in Hungary, based on the Fundamental Law, which can function as critical-corrective institutions along with the activity of citizens in a coordinated and regulated action of judicial review to counter those in power.

In most cases the expert colleagues of the ombudsman prepared the constitutional argumentation for the popular demands. An exception was the case of family law where the head of the ten year-old committee preparing the New Civil Code, a well-known Hungarian civil law professor, and recently vice-president of the Hungarian Academy of Sciences, Lajos Vékás, was able to provide his own high level argumentation to the Court. Even in the case of expert initiatives, such as that of Vékás, the ombudsman and his experts sometimes chose other arguments than those in the original petition.

Certain political parties and civil society organizations put forward their own political agenda or protest issues. This is not the function of the ombudsman or the Constitutional Court. It did not belong to the ombudsman’s task to translate general political criticisms into the language of the Constitutional Court. The Fundamental Law gives the opportunity to those political forces having one quarter of the mandate of the unicameral parliament to initiate the proceeding of ex post review of norms at the Constitutional Court in which the comprehensive critical attitude of the opposition represents itself in the submission of its own petitions.

Compared to this, the ombudsman’s competence is to focus on partial questions, single issues, corrections initiated by citizens or based upon own investigation and asking for ex post constitutional review. Such petitions

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from the ombudsman do not challenge the constitutional system and the legal institutions as such, as sometimes the criticism of the political opposition did this period. The task of the ombudsman is, in his criticism and demand for constitutional review, to address partial problems, which are the basis for constitutional corrections. The ombudsman does not aim to set up a new constitution or an alternative legal order. This aspect was misinterpreted by both sides in Hungarian political life. The political actors interpreted my activities as ombudsman of Hungary as a vote against or for their constitutional choices and concepts. The governing party/ies and the oppositional parties/movements were rejecting the constitutional conceptions and models of the other. The opposition of left-liberal-green forces wanted to keep the former constitutional structure as the tradition of the system of transition; the governing parties wanted, and did impose, their new concept of a Fundamental Law. There was no constitutional consent between them. After the tensions and debates on the Fundamental Law, which was seen by the government as a historical performance for a new Hungary and by the oppositional parties as a historical dead-end and as a defeat of the rule of law and European values, Hungary become a disunited nation, as described in the title of a collection of critical essays on the Fundamental Law in English.55 Constitutional thinking is divided into two camps. Based on their camp mentality, the government interpreted the ombudsman’s petitions to the Constitutional Court as political opposition to their new Fundamental Law and especially their policies. Opposition leaders hoped that their fight against the ruling party and its constitution should be channelled by the petitions of the ombudsman to the Constitutional Court.

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匈牙利監察使與憲法法院的競合關係：2012-2013

Máté Szabó匈牙利監察使（2007-2011）

匈牙利基本人權委員會委員（2012-2013）

摘要

《基本法》與新的《監察使法》大幅改變了匈牙利於 1990年代中期所建立的監察體系。本文將檢視四年前發生的這些變化。研究重點集中在監察制度的變

遷，究竟監察體系如何從分工的職能設計，轉變成統一的體系？同時，新的體

系與憲法法院之間的關係又是如何？另外，本文也會針對憲法法院本身進行探

討。

《基本法》於 2012年 1月 1日生效，為匈牙利的憲政體制帶來好幾項改變。隨著公法上的改革，《基本法》廢除將監察權力一分為四的體系，建立由單一

監察使專責的制度。新制度的基本精神並非要走向中央集權，而是要避免疊床

架屋造成資源與精力的浪費。另外，舊制度也不允許聯合或集體人權的保障。

我的主張是，要獲得人權保障的成效，其重點不在於監察使的人數，而在於監

察使背後協助她／他行使職權的人士，包括機構職員所進行的準備工作。監察

機關在國家架構中具有獨立性，但不代表分離於國家權力之外。基於其監察性

質，監察使是個特殊的制度，無法納入孟德斯鳩的三權分立理論當中。

匈牙利根據為 1993年通過的一項規定（即議會民權委員會 1993年第 59號法案）於 1995年成立監察使辦公室。而在 2012年新的單權架構中，只有一位「基本人權委員」（即監察使）。其下有兩位「基本人權次委員」，一位負責未來

世代的權益保障，另一位負責居住於匈牙利境內各民族的權利。重要的是，此

一新的制度最引人矚目的創新之處，為其能發動抽象規範上的監察。但我也要

特別強調，這項創新實在只是鏡中水月，難以實踐。

關鍵字

匈牙利的憲政變遷、憲法法院、違憲審查、匈牙利基本法、監察使

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