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Hungary / Constitutional Court / Decision no. 7/2017

Country

HungaryHungary

Title

Hungary / Constitutional Court / Decision no. 7/2017

View full Case

Year

2017

Decision/ruling/judgment date

Tuesday, April 18, 2017

Crime type(s) concerned/related

Incitement to violence or hatred

Related hate bias motivation

Religion

Groups affected

Muslims

Court/Body type

National Higher Court

Court/Body

Constitutional Court (Alkotmánybíróság)

Key facts of the case

The Local Government of Ásotthalom, a town at the Serbian-Hungarian borders, adopted Local Governmental Decree no. 12/2014. on 23 November 2016 on the 'General rules of community coexistence'. The decree contained a prohibition on Islamic call to prayer activities, and wearing Muslim headscarves, chador, niqab, or burkini in the town of Ásotthalom. The decree also included a ban on the construction of any mosques and minarets in the town.

Main reasoning/argumentation

The Commissioner for Fundamental Rights (Alapvető Jogok Biztosa) turned to the Constitutional Court (Alkotmánybíróság) claiming that the local governmental decree of Ásotthalom violated Paragraph (3) of Article I. of the Fundamental Law of Hungary (Magyarország Alaptörvénye) that stipulates: 'The rules relating to fundamental rights and obligations shall be laid down in act of Parliament'. The Commissioner also claimed that the decree had violated the fundamental right to freedom of religion (Article VII of the Fundamental Law of Hungary).

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The Constitutional Court had to decide whether the legislative power of local authorities to adopt local ordinances and decrees to manage local matters extends to matters closely related to fundamental rights. Moreover, the Constitutional Court had to clarify whether local governments could restrict the exercise of fundamental rights at the local level on the ground of maintaining 'public safety'.

Results (sanctions, outcome) and key consequences or implications of the case

The Constitutional Court found that the local decree violated fundamental rights and was discriminative in nature. The Court emphasised that local governments could never use their power to restrict the practice of fundamental rights, and such restrictions would also be discriminative in nature. As a result of the procedure, the Constitutional Court annulled the local decree.

Key quotation in original language and translated into English with reference details

Article 43 of the Decision:
'Amennyiben a települési önkormányzat nem helyi közügyet, hanem közvetlenül alapjogot érintő kérdést szabályoz rendeletében, úgy jogalkotói hatalmát alkotmányellenesen alkalmazza.'

'In case the local government adopts decrees not regulating local matters but matters in direct relations to fundamental rights, the local government uses its legislative power unconstitutionally.'

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