Constitutional Complaints by State Organs? Changes in the Standing Requirements before the Hungarian Constitutional Court

Abstract

Recently, the Hungarian Constitutional Court (HCC) upheld a constitutional complaint by the Government, arguing that the ordinary court had violated the Government’s fundamental right. This decision, which fits in with the HCC’s current practice, is clearly at odds with the concept of fundamental rights as a protection against the state’s power. The paper explores the constitutional background to this controversial practice. It addresses the HCC’s status and the introduction of the German type of constitutional complaint in Hungary. It points out that, due to its centralising effect, the constitutional complaint can only fulfil its purpose if the HCC’s independence is guaranteed. Otherwise, it may undermine the ordinary courts’ independence.

The paper examines the HCC’s practice on the standing of public power-related bodies in constitutional complaint procedures. Since the constitutional complaint is an instrument of fundamental rights protection, the case-law shows a doctrinal tension between the fundamental rights concept and the constitutional complaint’s actual purpose.

Finally, the paper links the findings on the constitutional complaint’s function, the HCC’s status and the interpretation of the standing requirements. It also considers that the HCC has extended the scope of the fundamental right to a fair trial to the incorrect interpretation of the law. The paper argues that administrative judicial review is centralised in the hands of the HCC, the independence of which has been compromised. The HCC’s recent interpretation reverses the function of the constitutional complaint, which provides public bodies with an extra possibility for review instead of protecting citizens’ fundamental rights.