Proceedings of the Constitutional Court and the Ombudsman's activity: first steps in practice on the basis of regulation of the basic law.

Author:Szabo, Mate
Position:Column

The development of proceedings in the Constitutional Court is linked to the creation of correctional mechanisms and constitutional balancing bodies to replace the former authoritarian systems in Europe. A Constitutional Court ensures the democratic development of post-communist regimes, as it did for the post-apartheid regime in South Africa (2), although the origins of the institution of the Ombudsman are not to be found in post-authoritarian regimes but rather in stable democracies. (3) The established existence of a first generation of Ombudsmen enabled revision and correction to be a "soft" type of mechanism to complement and cooperate with the administration of court proceedings. At this stage, Ombudsmen are reactive, commencing legal process in response to complaints, and their task is to control the decisions of the administrative authorities. For example, the Spanish Ombudsman was established in 1978 (4) after the Franco regime had ended, and so became the first post-authoritarian Ombudsman in Europe. The new post gained greater reactive-administrative powers and was able to apply to the Constitutional Court and fulfill a proactive function, being empowered ex officio to initiate inquiries, and there was a shift towards Constitutional Court activity in human rights cases. The same model was adopted for Ombudsman's offices that emerged in other post-colonial, post-authoritarian systems, with Poland seeing the establishment of the first post-communist Ombudsman's office. The Polish Ombudsman went on to operate on the same model during the entire period of transformation to democracy, even before a true Constitutional Court existed there. Due to the impact of the Polish model, (5) in essence all post-communist systems, whether democratic or authoritarian, set up their own Ombudsman's Offices which could cooperate with the Constitutional Courts which became widespread in post-communist countries.

In Hungary, the Constitutional Court was created somewhat earlier, in 1989, and assumed a creative and widely recognized role in reshaping the constitutional system of political transformation, as would the first Ombudsmen, elected in 1996. (6) The office of Ombudsman was established rather later in Hungary, but followed the Spanish and Polish models. All the new Ombudsmen were given both proactive and reactive functions, as well as administrative control of applications to the Constitutional Court, along with a protective constitutional role and a say in international human rights protection. Nevertheless, their organizational form was a "poor imitation of the Swedish model" according to the European Ombudsman, Nikiforos Diamandouros, at a meeting in Brussels in 2007. The Swedish system of a single parliamentary Ombudsman with deputies and independent but lower-ranked ministerial Ombudsmen, replacing the Ombudsmen of the King and Parliament, was transmuted by the Hungarians into a common office for four independent parliamentary Ombudsmen. The contradiction of the constructive procedural and the counterproductive organizational rules between 1996 and 2007 was mitigated by solidarity among the individual Ombudsmen and consequent avoidance of conflict. However, in 2007 when another Ombudsman's position emerged (a parliamentary position concerned with future generations), the balance shifted towards the special Ombudsmen. At the time I felt moved to make a vigorous public protest against the position of the three Special Commissioners, who wished to settle things on the basis of the principle of majority rule. (7) The conflict which had arisen in various forms and had hindered smooth cooperation among the Ombudsmen was terminated by a solution in the Basic Law which set up a single office of General Commissioner ("Commissioner for Fundamental Rights") with two professional deputies, to be elected by two thirds of members of Parliament and whose brief is to look after the rights of national minorities and environmental protection and sustainability. The Ombudsman for data protection and freedom of information became an independent authority pursuant to the provisions of the Basic Law in compliance with EU regulation, with authority to levy fines up to millions of Forints. Nevertheless, the EU still criticizes the Hungarian solution since in their view, Andras Jori, the last commissioner for data protection, was not given the chance to fulfil his duties as President of the Authority, whereas all the other Ombudsmen were allowed decide for themselves if they would work together in the new set-up.

The transformation of the system of Ombudsmen is not entirely without precedent. In France, Norway, Sweden (and in Italy, where there are only local Ombudsmen), and in Malta such centralizing trends have prevailed in recent years due to the impact on Ombudsman systems of the financial crisis. In each of the Visegrad countries (Poland, Slovakia, Hungary and the Czech Republic), single Commissioner systems emerged, with Hungary and its unique system as the "odd man out." Reformin France was particularly comprehensive. The previous independent Commissioner for Children's Rights, the Equal Treatment Authority and is institutions--similar to our Independent Police Complaints Board and carrying out extensive functions while for the most part collectively managed--were subsequently merged under the management of a single Ombudsman. (8) A similar trend is to be seen in Malta, too. Sweden, Norway and Lithuania undertook a programme of administrative coordination and rationalization to reduce costs, by effectively decreasing the number of Commissioners.

Such organizational reforms do not necessarily affect the relationship between the Constitutional Court and the Ombudsman. Indeed, not all the countries concerned possess a Constitutional Court, or sometimes if they do, the Ombudsman might have no duty connected with it. In Hungary, the Ombudsmen can resort to the Constitutional Court ex officio within their spheres of competence, in order to eliminate constitutional improprieties. The number of such actions has not been large; on average the General Commissioners have submitted no more than five petitions annually. The special Ombudsmen empowered to apply to the Constitutional Court on the basis of certain applicable legal rules--the Act on National Minorities, the Environmental Protection Act and the Data Protection and Freedom of Information Act--have submitted even fewer petitions.

The Constitutional Court did not deal with the Ombudsmen's petitions as leading cases despite the fact that their primacy is set out in the rules of procedure. In fact, for many years such petitions were not even placed on Court agendas, a decision made in the context of the so-called actio popularis which, as Mr Justice Mihaly Biharihas mentioned, proceeded with those of the roughly 800 citizens' petitions deemed appropriate annually. Over the course of some decades no uniform process was established to deal with the thousands of petitions submitted or, at least, none was made public. However, in the absence of such a process it can be concluded that before 1 April 2012, which was the deadline for resubmission to the Ombudsman of past petitions, they disappeared from the archives of the Constitutional Court. Oblivion, then, was their fate, as if they had simply disappeared into Limbo.

I think that the view of former President Laszlo Solyom and others is mistaken in stating that the actio popularis would have been an efficient constitutional safeguard. On the input side perhaps, yes, all citizens "could go to Donati street"--which was where the Constitutional Court was housed--but to do so would have been futile because in any case petitions had no real impact, nor were they even properly processed. On the output side meanwhile, the Constitutional Court was quite unable to deal with the colourful multitude of petitions in the time available. The permissive input side was not proportional to the efficiency of output, as a consequence of which too few initiatives were able to benefit from the numerous petitions which were submitted in compliance with the criterion of popular democracy. To some extent though, the actio popularis was perhaps able to soften the utilitarian efficiency of the numerous legal actions submitted to the Constitutional Court as political protest.

Certainly, all these assumptions would be justified only if one could analyse at least one or two hundred petitions selected at random every year to see what effect they had on the work of the Constitutional Court. A generous expectation might be that by giving preference to certain subjects the Constitutional Court might have answered public demand as a consequence of a noticeable trend whereby a large number of petitions were submitted indicating civil dissatisfaction. Nonetheless, one might ask is that the function of the Constitutional Court in post-authoritarian democracies?

Against this "people's democratic" position of the Constitutional Court taken only by Hungary and Bavaria, in my view the organization of the Constitutional Court's proceedings follows explicitly professional elitist models. Constitutional Courts are the most powerful legal bodies, highly qualified, entirely independent from politics, and act as special forums for making binding decisions. They are the spokesperson neither of the contemporary political majority nor of the prevailing opinion of the majority in society, whose demands should be addressed by the national Parliament and civil society as a whole. Constitutional Courts must ensure their decisions are based on solely constitutionally-derived professional arguments, and they must balance the democratic majority and what we might call the social majority. Put simply then, their decisions must be based on constitutional and legal arguments rather than on current public opinion. Constitutional Court proceedings may take cognizance of popular...

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