The Commissioner for Fundamental Rights upholds the petition challenging the Transitory Provisions of the Basic Law

Press release:

The Commissioner for Fundamental Rights upholds the petition challenging the Transitory Provisions of the Basic Law

AJB-2302/2012

The first amendment to the Basic Law has not answered all the questions according to which the ombudsman challenged the Transitory Provisions – stated Máté Szabó. The Commissioner finds that only those regulations of the Transitory Provisions are parts of the Basic Law that are necessary for the transition from the former constitution to the new one.

On 13 March 2012 the ombudsman initiated the annulment of the Transitory Provisions of the Basic Law. He pointed out that despite of its nomination the Transitory Provisions contained regulations that were not transitory. The Commissioner also held that the Transitory Provisions were not on a constitutional level, as this fact was not explicitly declared by the Basic Law.

Subsequent to the ombudsman's petition the Parliament amended the Basic Law on 13 March 2012. According to the amendment the Basic Law itself declares that the Transitory Provisions are parts of the Basic Law. The Constitutional Court enquired the Commissioner if he upheld his petition in the new constitutional background.

Upon the enquiry Máté Szabó reckoned that the provision stating "the Transitory Provisions are parts of the Basic Law" should not be interpreted on its own but with regard the entire Basic Law. According to the Commissioner the Transitory Provisions cannot overrule the provisions of the Basic Law; neither can they make exceptions from the application of its regulations.

According to Article R) of the Basic Law, the base of the legal order is the Basic Law; and not the Transitory Provisions. Like any other constitution, the Basic Law requests absolute implementation in the whole legal order; it is a standard upon which all pieces of legislation can be evaluated. If the Transitory Provisions could make exceptions from the Basic Law, the "standard" itself would be infringed. Such a situation would question the constitutional status of the Basic Law.

The Basic Law made it necessary for the Parliament to adopt transitory provisions for the purpose of securing the transition from the former constitution to the new one. Beside these regulations the Transitory Provisions contain rules on

-          the criminal responsibility of communist leaders and the reduction of their pension;

-          the appointment of courts in particular cases;

-          the recognition of churches;

-          the definition of constitutional complaint;

-          the extension of the restriction of the competence of the Constitutional Court;

-          the scope of authority of the Government Office;

-          the taxation deriving from the decision of the Constitutional Court or the European Court of Justice and

-          the "day of the Basic Law".

Pertaining to these regulations the Commissioner upheld his petition and requested their annulment.

27/09/2012