## Facts

- Hungary adopted a new constitution (the Fundamental Law) in 2011, effective in 2012.
- On March 11, 2013, Hungary’s Parliament adopted the Fourth Amendment to the Fundamental Law by a two-thirds majority.
- The Secretary General of the Council of Europe and Hungary’s foreign ministry requested an expert review of the Fourth Amendment’s compatibility with Council of Europe standards and international obligations.
- The reviewing body issued a non-binding advisory opinion after considering the text of the amendment and comments from Hungarian authorities.
- The Fourth Amendment made wide-ranging constitutional changes affecting fundamental rights, the judiciary, and the Constitutional Court.
- The amendment elevated into the constitution multiple provisions previously struck down by Hungary’s Constitutional Court.
- The amendment addressed, among other matters, recognition of churches, election-campaign media rules, restrictions on speech, higher-education autonomy and student support, regulation of homelessness, and powers within judicial administration (including transfer of cases between courts).

## Issues

1. Whether the Fourth Amendment’s method and substance complied with rule-of-law and separation-of-powers standards, including by reintroducing provisions previously annulled by the Constitutional Court.
2. Whether the amendment improperly curtailed the Constitutional Court’s role through limits on its jurisdiction, its ability to review constitutional amendments, and the legal effect of prior case law.
3. Whether provisions affecting judicial administration—particularly authority to transfer cases and concentrated administrative powers—were consistent with judicial independence and the right to a lawful judge.
4. Whether specific rights-related provisions (expression, religion, academic freedom, and treatment of homelessness) were sufficiently justified and proportionate under European human-rights standards.
5. Whether extensive entrenchment of policy through constitutional text and supermajority “cardinal laws” undermined democratic governance and legal certainty.

## Decision

- The reviewing body concluded the Fourth Amendment raised serious concerns regarding democracy, the rule of law, and respect for human rights.
- It found multiple provisions incompatible with, or difficult to reconcile with, Council of Europe standards, particularly where constitutional amendments were used to override constitutional-court decisions.
- It criticized limitations that weakened constitutional review, disrupted continuity of constitutional interpretation, and threatened legal certainty.
- It expressed concern that concentrated judicial-administration powers and case-transfer mechanisms could impair impartial adjudication and judicial independence.
- It recommended Hungary reconsider and revise the Fourth Amendment, focusing on restoring effective constitutional adjudication, safeguarding judicial independence, and ensuring rights limitations meet necessity and proportionality requirements.

## Legal Principles

- Constitutional amendment power should not be used to neutralize constitutional-court judgments in a manner that empties judicial review of practical effect.
- Legal certainty and coherent constitutional interpretation are undermined when prior constitutional-court jurisprudence is stripped of authoritative force without adequate continuity mechanisms.
- Effective constitutionalism requires meaningful checks on amendment power where amendments risk dismantling core constitutional guarantees and fundamental-rights protection.
- Judicial independence includes structural safeguards against discretionary case allocation or transfer that can compromise the right to a lawful judge and perceptions of impartiality.
- Restrictions on freedom of expression, especially political speech, must be narrowly framed and proportionate; broadly worded protections (including for national “dignity”) risk chilling legitimate criticism.
- State systems for recognizing religious communities must avoid arbitrariness and discrimination and must be compatible with freedom of religion and equality norms.
- Criminalization of “habitual” presence in public spaces directed at homelessness raises human-dignity concerns and risks punishing status rather than harmful conduct.
- Entrenching detailed policy choices in constitutional text or supermajority legislation can constrain future democratic majorities and impair ordinary democratic accountability.

## Conclusion

The advisory opinion concluded that Hungary’s Fourth Amendment posed substantial rule-of-law and fundamental-rights problems, particularly by weakening constitutional adjudication, concentrating judicial-administration powers, and entrenching contested policies at constitutional level; it urged revision to restore effective checks and rights protections consistent with Council of Europe standards.


Opinion on the Fourth Amendment to the Fundamental Law of Hung., CDL-AD(2013)012 (Venice Comm’n 2013)