THE LIMITATIONS OF FUNDAMENTALThe …：基本的限制….doc

THE LIMITATIONS OF FUNDAMENTALRIGHTS IN THE JURISPRUDENCE OF THEHUNGARIAN CONSTITUTIONAL COURTISTVAN BAGIJudge of the Constitutional Court of HungaryI. The questions of limitations of the fundamental rights.The Constitution of the Republic of Hungary defines first the level of legislation about the fundamental rights, accordingly in the Republic of Hungary regulations pertaining to fundamental rights and duties are determined by law.1 The Constitutional Court interpreted the relation between the exclusive legislation on statutory level and the possible legislation through a decree, or administrative regulation. The decision in that case declared that the mus of legislation on statutory level is not absolute.2 “Not every kind of relationship calls for statutory regulation. The determination of the content of a certain fundamental right and the establishment of the essential guarantees thereof may only occur in statutory measures; more over the immediate and significant restriction of a fundamental right calls for statutory measures as well. However, where the relationship with fundamental rights is indirect and remote, administrative regulation is sufficient. If it were otherwise, everything would have to be regulated by statute.”3 The remote, indirect, technical and not limiting rules in an administrative regulation or decree related to the fundamental rights in itself do not breach the Constitution.4 At the same point we have to accept, that regulation outside of the Constitution means logically the limitation of the fundamental rights in some ways. 5 The text of the Constitution in force until summer of 1990 enumerated the grounds of limitations according to international praxis, but is it has been changed, that theres a limit for limitation. The limit is that such law may not restrict the basic meaning and contents of fundamental rights.6 The Republic of Hungary specified the basic meaning, or the limitation of the basic meaning only exceptionally7 It is important to speak about the unlimitable fundamental rights, rather about the possibility of their hierarchy on that ground. The jurisprudence of the Constitutional Court classifies the rights in the Constitution in 3 groups: the right to life and human dignity, the group of other fundamental rights and the so-called “constitutional” rights”. The right to life and human dignity secured by the sec. 54 (1) of the Constitution has absolute binding power, this two rights applied on each other express the legal status of the human, in this unity they standing on the top of the fundamental rights hierarchy, so they cant be limited conceptually8 . II. Analysis of the fundamental rights limitations Except of the life and human dignity, every fundamental right can be limited, where Constitutional Court applies the following, so called “necessity and proportionality”“ test. Beyond that there are to governing elements of the dogmatic base: the right to human dignity and the prohibition of discrimination. The base of the test is given through the states obligation for institutional protection and projected on this the limit of the limitation, i. e. the inviolability of the fundamental rights basic meaning. We cannot talk about the limitation of the basic meaning, if its necessary because of the protection or enforcement of another fundamental right, constitutional value and aim, although it has to be balanced with the importance of the aim of the regulation, so it has to be proportional. The legislative power has to choose the softest method to reach this aim. If the applied limitation is unable to reach the goal of the regulation, so can be the violation can be delivered.The ideas on the necessity and proportionality can be in the taken analysis to be worked out from case to case. In many decisions you can find beside the necessity also the unavoidability of the limitation, moreover the demand for establishing of the guaranties beside the limitation. They are the main rules of the test. Beside them the Constitution contains special criteria to the given fundamental right, they make the general measure concrete and they help to define the basic meaning of the given fundamental right. This measure works as an ”obsolute limit of limitation and as a special scope. III. Special test by the limitation of property In the case of property there is a special character, that the basic meaning and the question of necessity and proportionality, so the sphere and means of constitutional protection of property does not necessarily follow the legal concepts of civil law. The content of the protected constitutional property includes the actual public and private law limitations. Property is afforded constitutional protection in its capacity as the traditional means of securing an economic basis for the autonomy of individual action; the constitutional protection must track the changing social role of property so as to fulfill the same task. The constitutional protection of property extends to rights with an economic value which today perform this former role of ownership, including public law entitlements, on the other hand the social burdens of property make constitutionally permissible a far reaching restriction on the autonomy of the property owner. In protecting the fundamen tal right of property the demarcation line is no longer between the “restriction“” of property and its taking” in the civil law sense, but between cases in which a property owner must acept restrictions by the public authorities without compensation and in which cases he can claim indemnification for the restriction own his property rights. But, just as more and more property restrictions merit protection analogous to that afforded in cases of expropriation, also a growing number of restrictions must be borne without any compensation at all because of the public interest. The idea of public interest changes in that now often serves the benefit of other private person. Heavy burdening of the property may also qualify for constitutional protection similar to that provided in cases of expropriation. Even in the event of a restriction necessitated by the public interest there may be other constitutionally cognizable consideration -the extent of the burden or the fact that the law only forces one group of property owners to bear the burden - which speak in favor of compensating the owner for his loss or at least mitigating the damage. The central point of the constitutional review has become the adjudication of proportionality between the ends and the means the public interest and the restriction on property. The constitutional review does not focus upon the formally existence of the public interest; but applies the criterion of necessity -proportionality and it confides its enquiry to the invocation of the public interest is justified and whether the solution adopted for the public interest violates some other constitutional right. In investigating the proportionality of public interest and the restriction on property rights, the Constitutional Court may generally decide upon those criteria, which determine the constitutionality of an intervention. In some cases compensation may be necessary for the proportionality of the restriction on property. IV. Protection of the so called ”constitutional” rights In the hierarchy of the rights in the Constitution the constitutional, i. e. the not fundamental rights doesnot have the strict protection as the original fundamental rights. These rights are connected into the constitutional protection-system through the prohibition of discrimination and the protection of human dignity9. The discrimination on these rights is also against the Constitution if it violates the right of human dignity10. lo For that kind of discrimination the Constitutional Court declares the violation of the Constitution, if the discrimination hasnot got a reasonable ground according objective measuring, so it is arbitrarily11. There is also a measuring method for different constitutional values and states purposes. The Constitutional Court declares the violation of market economy and the competition, when the intervention is contradicting the constitutional purpose evident and in his conception12. Last but not least for the protection of this kind of rights there is the clause of rule of law state, which main criterion is the legal certainty, which also contains technical measures to, for example the clear and unambiguous form formulation of legal rules13. The legal certainty in itself contains the requirement of the subject matter that arbitrary decisions cannot be brought. 1 First part of the sec. 8 (2) of the Constitution 2 HOLL6. Andras -BALOGH, Zsolt (edit.): Az ertelmezett Alkotmany. (The interpreted Constitution) Magyar Hivatalos Kozlonykiad6, Budapest 2000. 156. 3 Decision 64/1991: 17. December 1991, ABH 1991,300. 4 Decision 29/1994.20. May 1994, ABH 1994, 155. 5 SARI, JAnos: Alapjogok. Alkotmanytan II. (Fundamental Rights, Constitutional Law) Osiris Kiad6, Budapest 2001.42. 6 Second part of sec. 8 (2) of the Constitution. Appearance of the idea of the basic meaning doesnot mean the acceptance of the “ Wesensgehalt” idea of tho. Bundesverfassungsgericht. The Constitutional Court of the Republic of Hungary specified the basic meaning, or the limitation of the basic meaning only exceptionally.7 Right to life in the decision 23/1990.31. November 1990 ABH 1990,93.; S6L YOM 397-401. 8 S6L YOM 137.; Decision 23/1990. ABH 1990, 93. 9 HOLL6 -BALOGH 144. 10 Decision 61/1992.22. November 1992, ABH 1992,282 11 Decision 35/1994.27. June 1994, ABH 1994,202-203. 12 Decision 21/1994. 16. Apri11994, ABH 1994, 119-120. 13 Decision 11/1992. 5. March 1992, ABH 1992, 80. ÐÅÇÞÌÅ äîêëàäå ïðåäñòàâëåíû çàêðåïëåííûå Êîíñòèòóöèåé Âåíãðèè îñíîâû è îñíîâíûå êðèòåðèè îãðàíè÷åíèÿ ïðàâ. Êîíñòèòóöèîííûé Ñóä Âåíãðèè â ñâîåé ïðàâîâîé ïðàêòèêå, ñ òî÷êè çðåíèÿ ïðèìåíåíèÿ îòäåëüíûõ îãðàíè÷åíèé, êëàññèôèöèðóåò ãàðàíòèðîâàííûå Êîíñòèòóöèåé ïðàâà íà 3 ãðóïïû: 1) ïðàâî íà æèçíü è íà ÷åëîâå÷åñêîå äîñòîèíñòâî 2) äðóãèå îñíîâíûå ïðàâà 3) “áîëåå îãðàíè÷èâàåìûå” êîíñòèòóöèîííûå” ïðàâà. Ïîñëåäíèå íå ïîëüçóþòñÿ òîé æåñòêîé çàùèòîé, êàêîé ïîëüçóþòñÿ îñíîâíûå ïðàâà. Çà èñêëþ÷åíèåì òàêèõ ïðàâ, êàê ïðàâî íà æèçíü è íà ÷åëîâå÷åñêîå äîñòîèíñòâî, âñå ïðàâà ìîãóò áûòü îãðàíè÷åíû. Ïðè îöåíêå ëþáîãî îãðàíè÷åíèÿ, Êîíñòèòóöèîííûé Ñóä ïðèìåíÿåò ïðèíöèï “íåîáõîäèìîñòè è ïðîïîðöèîíàëüíîñòè”.  ðÿäå ïîñòàíîâëåíèé Êîíñòèòóöèîííûé Ñóä ïðè îöåíêå îãðàíè÷åíèÿ, êðîìå êðèòåðèåâ íåîáõîäèìîñòè è ïðîïîðöèîíàëüíîñòè, ïðèìåíÿåò òàêæå êðèòåðèé íåèçáåæíîñòè îãðàíè÷åíèÿ. äîêëàäå îòäåëüíî ïðåäñòàâëåíû êðèòåðèè îöåíêè îãðàíè÷åíèÿ ïðàâà íà ñîáñòâåííîñòü. Êîíñòèòóöèîííûé Ñóä Âåíãðèè, îöåíèâàÿ îãðàíè÷åíèå ïðàâà íà ñîáñòâåííîñòü, ðåøàåò, îïðàâäûâàåòñÿ ëè äàííîå îãðàíè÷åíèå îáùåñòâåííûìè èíòåðåñàìè è íå íàðóøàåò ëè ðåøåíèå, âûáðàííîå äëÿ çàùèòû îáùåñòâåííûõ èíòåðåñîâ, äðóãèå êîíñòèòóöèîííûå ïðàâà.