The Ombudsman's Petition to the Constitutional Court Concerning the Media Act's Provision on Imposing Administrative Fine

According to the Commissioner for Fundamental Rights, it is contrary to the requirement of the rule of law and infringes on the right to due process that the Media Act, in addition to imposing fines on organizations impeding the proceedings of the Media Authority, also stipulates, in case of repeated offence, imposing fines on the executive officer of the infringer. Therefore, Máté Szabó has requested the Constitutional Court to annul the provision concerned.

The Commissioner for Fundamental Rights conducted his inquiries into the Media Act's provision on administrative fine acting on a motion submitted by a civil organization. Under the Media Act, in case of obstruction of the proceedings, the Authority shall have the right to impose an administrative fine upon the client, and any other party to the proceedings, and any person who is required to cooperate in the process to ascertain the relevant facts of the case if, during the course of the proceedings, such parties act or behave in such a manner as to prolong or obstruct the proceedings or to prevent the actual facts of the case from being established. In case of repeated offence, the Authority is obliged to impose a fine upon the infringer's executive officer for any case of obstruction of the proceedings, with no deliberation right except the amount of the fine. Consequently, the executive officer is sanctioned on an objective basis, irrespective of his/her involvement or the lack thereof in the obstruction of the proceedings.

The Commissioner pointed out that the administrative fine's function is to facilitate the proceedings, to sanction and, as a result, to prevent its further, mala fide obstruction. The right to due process also includes the right to legal remedy. It runs counter to the right to due process and, consequently, to the principle of the rule of law, if the legislator, in the interest of an efficient administrative procedure, exposes the client, making him/her defenceless against the actions of the power of the state. In connection with the provision on fining the executive officer, Máté Szabó stressed that it breaches the presumption of innocence if the authority, in accordance with the relevant legal provision, may not inquire into the infringer's conduct and the executive officer's responsibility or the lack thereof. In case of mandatory fining, the right to legal remedy also loses its significance, pointed out the Ombudsman.

The Commissioner may not request the Constitutional Court to establish legislative omission, but he drew the attention of the Court to the question whether or not the provision of the Media Act on administrative fine is in accordance with the requirements of the rule of law and due process. Namely, the provision of the Media Act does not stipulate that an administrative fine may be imposed exclusively in case of attributable obstruction. This regulation in itself, i.e. construed outside the context of the general rules of administrative proceedings, may lead to a system of objective responsibility.

Although the Media Act stipulates the criteria for determining media service licence fee, it does not specify even its range. In this connection, Máté Szabó drew the Constitutional Court's attention to investigating whether or not the provision on media service licence fee is in compliance with the constitutional requirement of due process.

Concerning other problems raised by the aforementioned civil organization the Commissioner did not have any constitutional misgivings. In connection with the requirement of unbiased reporting, the Ombudsman pointed out that it does not infringe upon the right of self‑determination and the freedom of speech if, in case the obligation of unbiased reporting is breached, an administrative procedure may be initiated not only by the representatives of the suppressed view but also by any viewer or listener; for the requirement of unbiased reporting serves the formation of a democratic public opinion, so it is a matter of public interest, not a matter related exclusively to the individual rights of the person concerned.