Petition of the Ombudsman to the Constitutional Court concerning the Transitional Provisions of the Fundamental Law

Petition of the Ombudsman to the Constitutional Court concerning the Transitional Provisions of the Fundamental Law

The Commissioner for Fundamental Rights is of the opinion that the Transitional Provisions of the Fundamental Law adopted by Parliament in December 2011 in a separate document gravely violate the principle of the rule of law, may cause problems of interpretation and endanger the unity and operation of the legal system. According to Máté Szabó it raises concern that the Transitional Provisions contain, in many instances, rules that are obviously not of a transitional character. The Ombudsman has requested the Constitutional Court to examine whether the Transitional Provisions comply with the requirements of the rule of law laid down in the Fundamental Law.

An individual requested in his submission that the Commissioner initiate with the Constitutional Court the annulment of certain articles of the Transitional Provisions because in his opinion they are contrary to the Fundamental Law and to international treaties. The submission raises several problems of principle, which the Commissioner has found justified and, using his new competence vested upon him by the Fundamental Law, initiated out of turn the proceedings of the Constitutional Court.

This is the first time that Máté Szabó has initiated an ex post examination of a rule of law on the basis of the submission of a citizen. The Ombudsman took into consideration that citizens are no longer entitled to directly request the examination of the Transitional Provisions by the Constitutional Court because of the modification of the regulation concerning petitions. In the interest of the enforcement of the rule of law and of legal certainty the Commissioner considered it particularly important that the Constitutional Court has the final say on this issue. 

The constitutional concerns contained in the Ombudsman's petition can be divided basically into two groups. The Commissioner finds it problematic from the point of view of the enforcement of the rule of law that the status of the Transitional Provisions as a legal source and their place in the legal system is not clearly defined. The Fundamental Law provides for the adoption of transitional provisions, but the present legal norm causes worries in that it exceeds this authorisation and defines itself as part of the Fundamental Law, trying to prevent thereby that its provisions be examined, as to their content, for their compliance with the rules on guarantees and the principles of guarantees laid down in the Fundamental Law. In his petition the Ombudsman particularly emphasized that it would entail grave dangers if Acts adopted on the basis of the Transitional Provisions were contrary to the Fundamental Law itself and its fundamental rights rules.

According to the Ombudsman there are numerous articles of the Transitional Provisions that do not comply with the requirement of transitionality appearing also in the title of the legal norm: the main criterion of the transitional provisions to a rule of law is that their adoption is made necessary by the transition from the old regulation into the new one, therefore they always include concrete and temporary, i.e. transitional provisions related to the transition itself.

Beyond the formal objections and problems of principle explained in detail, the Commissioner has indicated in his petition that other constitutional concerns may also be raised regarding the content of the contested provisions.