Co.Co.A.
Comparing Constitutional Adjudication
A Summer School on Comparative Interpretation of European Constitutional
Jurisprudence
1st Edition - 2006
Gender Constitutional Issues and Equality
Hungary
Equality and Gender Issues in the Practice of the Constitutional
Court of Hungary
Prepared by: Szilvia Dobrocsi
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Comparing Constitutional Adjudication: A Summer School on Comparative
Interpretation of European Constitutional Jurisprudence
Trento, Italy, 23rd July – 6th August 2006
Equality and gender issues in the practice of the Constitutional
Court of Hungary
Prepared by Szilvia Dobrocsi
October 2006
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Foreword
Equality and gender issues are significant in the practice of the Constitutional Court of
Hungary (thereon: Court).
The majority of the Court’s decisions were established in connection with the prohibition of
discrimination. This requirement had been considered as the origin of the equality rule for a
while, then the principle of human dignity came to the front and for many years now it has
remained the legal background in the interpretation of the principle of equality.
The issue of gender equality is has always been present in the practice of the Court. Referring
to the violation of the prohibition of discrimination or of the constitutional provision of
gender equality, petitioners raised this topic several times during the past sixteen years.
In the first part of this paper I would like to introduce the law of equality as it is interpreted by
the Court. It has adopted a view which is not common in European constitutional practice and
through it based the interpretation of this principle on unique legal grounds. The second part
is about certain gender issues as they appeared in front of the Court.
Constitutional provisions
The Hungarian Constitution declares:
Article 54
(1) In the Republic of Hungary every human being has the innate right to life and the dignity of man, and no one
may be arbitrarily deprived of these rights.
Article 66
(1) The Republic of Hungary shall ensure the equality of men and women in all civil, political, economic,
social and cultural rights.
(3) Separate regulations shall ensure the protection of women and youth in the workplace.
Article 70/A
(1) The Republic of Hungary shall respect the human rights and civil rights of all persons in the country
without discrimination on the basis of race, color, gender, language, religion, political or other opinion,
national or social origins, financial situation, birth or on any other grounds whatsoever.
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The principle of equality
Article 70/A is the most frequently cited provision of the Constitution, and in the first few
years the Court interpreted it as the essential background for the rule of equality.
The equality principle was examined and interpreted for the first time in the third month of
the Court’s existence, in connection with the differentiation in a tax law.1 The Court stated
that the prohibition of discrimination does not mean that all discrimination, the one eventually
leading to higher social equality is prohibited. The Court focused not on the results, but on the
procedure, namely on the equal treatment: everyone shall be treated equally, everyone’s
aspects and circumstances shall be considered with equal attention and fairness, as it is
required by the Constitution. Hence, the equality principle does not mean mechanical
equality. The Court also ruled that positive discrimination – under certain conditions – is
constitutionally allowed.
In the same year in another decision concerning property rights the Court established the
expression of “homogenous group” and stated that “if there are different regulations
concerning a certain group within the given regulatory concept, that violets the prohibition of
discrimination, unless the distinct has a constitutional reason for sufficient weight”. Basically
it means that discrimination among people who belong to the same group because of a
recognizable, common characteristic is unconstitutional if it is not on reasonable grounds. As
of the question of reasonable grounds, it is obvious that every time it depends on the Court’s
interpretation due to the specific characteristics of each case.2
In the following years the Court changed its approach and gave an extensive interpretation to
the rule of equality, in many aspects. The most important of all is that it linked together the
principle of the prohibition of discrimination and that one of human dignity. In summary, it
means that the unlawful differentiation between people violates the right to human dignity, as
it had been considered as the “mother right” of all human rights and may be referred to as a
final value when no other constitutionally specified rights may be applicable in a case3.
1
Decision 9/1990. (IV. 25.) AB
Decision 28/1991. (VI. 3.) AB
3
Decision 8/1990. (IV. 23.) AB
2
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The Court stated that equality does not mean the equality of natural persons in all aspects,
even those outside of law. Article 70/A. (1) does not prohibit all forms of discrimination, as
such would be in contrary of its purpose, just those which realize the violation of the right to
human dignity.
In the process of arriving to the final conclusion in a decision in 1992 the Court ruled that
“Article 70/A. (1) is applicable not only to the human or fundamental rights of the citizens,
but (…) it extends to the whole legal system, thus including rights that does not belong to the
human or fundamental rights of citizens”. The final conclusion was that Article 70/A. (1) does
prohibit all distinctions concerning human rights, not just those in connection with
fundamental rights.4
As to complete the equality formula, the Court held in 1998 that “in case the distinction does
not relate to human or fundamental rights, it would be unconstitutional if it violated the right
to human dignity. The Court extended the requirement to all fields of law concerning all
rights, and it derives the prohibition from the right to human dignity, as – in this case – the
origin of the prohibition of discrimination.
As a brief summary, it is to be stressed that the Court extended principle of equality to the
whole legal system, to a much broader scope than it is required by the Constitution. The
contravention of the principle of human dignity became the main criteria: if it exists, the
discrimination is unconstitutional, let it concern any rights. The Court has held on to this
extended approach as the final leading rule instead of the widespread and popular
fundamental rights theory. The final conclusion – and the Court’s consistent practice – is that
it is generally declared: even not fundamental rights are protected by the Constitution. Even
though the criteria of holding the rule unconstitutional are more moderate, it is crucial that
any arbitrary restriction concerning non-fundamental rights is unconstitutional.
4
Decision 61/1992. (VI. 24.) AB
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Gender issues
Turning to the issue of gender equality, there are several similarities between the decisions of
the various national constitutional courts. Numerous issues have been raised in front of the
courts and in many questions they arrived to the same conclusions.
By way of introduction, let me briefly summarize the main characteristics of the Court’s case
law concerning gender equality. The Constitution declares the principle of gender equality in
a separate provision [Article 66 para (1)] and this rule serves as the primary constitutional
background concerning the related issues. However, it has happened several times that the
Court relied rather on the general principle of the prohibition of discrimination when
considered a gender related proposal. This is especially interesting in relation with the above
mentioned unique interpretation of equality – the Court uses these two provisions as
subsidiaries, however their origins and constitutional interpretations are very much different.
The petitioners usually call upon both provisions when they claim the unconstitutionality of a
certain provision concerning gender equality.
During the years many cases were raised in relation with gender discrimination. The issues
concerned are mostly connected with social security and with the world of labour. The Court
consistently protects and supports equality, which – as we saw it previously – is not
equivalent to the prohibition of discrimination. If necessary, affirmative actions (mostly in
labour law and to the benefit of women) are constitutionally allowed.
The following cases describe the practice of the Court well.
Labour law and social care
The first decision concerning gender issues was adopted in 1990; just a few months after the
court had been established. Without going into very detailed reasoning the Court annulled
many regulations of several acts – mainly in the field of social security – that had consistently
given preferences to women, wives and divorced women in various aspects concerning
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widows’ pension and other social maintenances without reasonable/explainable grounds. The
Court based its ruling on Article 66 para (1) of the Constitution.5
Affirmative action
The following cases are also connected to labour law and social security; however they
indicate another aspect of equality. During its practice the Court – examining the equality of
women and men – consistently held to its early rulings stating that natural differences
between people should be taken into consideration when the principle of equality is being
interpreted.
1. In 1997 the Court dealt with a case connected to family law and pension. In this case two
petitioners – besides other questions – claimed the unconstitutionality of the Act regulating
retirement age limit. This age limit is generally 62 years. According to one of the petitioners
the Act unconstitutionally differentiated between men and women in the question of early
(preliminary) retirement, in two aspects. Firstly, the law stated that under certain
circumstances women may retire 5 years before the normal age limit, while men may do so
only 2 years earlier. Secondly, as to the calculation of service time, women were eligible for
this preference if they raised a child, while men might have been eligible for it only if they
raised a child as single parents. Thus the law ensured better treatment (in form of earlier
pension) to women who raised a child and for men who raised child as single parents.
The Court stated that it is not unconstitutional if the legislator considers the distinctive
characteristics of women when establishing a legal regulation. The positive discrimination,
which serves a social aim or the enforcement of a constitutional right, cannot be considered
unconstitutional. Therefore the regulation, which allows women to retire earlier than men,
does not violate the Constitution. However, the consideration of parental status as a ground of
preference constitutes discrimination against men, which was held unconstitutional by the
Court. The rights and obligations of men and women concerning child raising are equal,
therefore those related to fulfilling the child raising obligations shall not be unfavourable for
men either. In fact it is unconstitutional that men are entitled for early pension only if they
5
Decision 10/1990. (IV. 27.) AB
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raised child as single parents. The Court annulled the expression ‘as single parents’ from the
regulation.6
Such issues were raised again later, but the Court held its previous rulings.
2. In 1998 the Court examined the Act on social security pension and its implementing decree
with an objected appendix. It established that the Act declared the entitlement for early
retirement pension of those women who had worked in certain positions for 8 years and also
of those men who had worked in such sectors for 10 years. The Court held that Article 66 para
(3) established the right of the legislator to give preferential treatment to women under certain
circumstances. In this case the biological capabilities, physical characteristics and qualities of
women, their physical weakness comparing to men, and because of all these their general
endangerment are the factors to consider. Hence giving such preferences to women in these
aspects is constitutionally acceptable.
The appendix, however, lists among the specific activities only that of the ‘waiver women’,
excluding waiver men from the entitlement, even though the health damaging circumstances
affect men’s health as well. The reason for this might be that there were many jobs that were
filled in mostly by women (waiver women, teachers, nurses, etc.). This situation, however,
has changed lately, and the legislation needs to adapt to the different circumstances, namely
that men appear in traditional ‘female jobs’ and vice versa.
As a matter of fact, in this case the differences between men and women had been already
considered in the rules giving preferences for women (the 8 years comparing to 10), therefore
the second regulation is discrimination towards men and their exclusion is constitutionally
unreasonable. The Court examined that all types of jobs in the list were added with the word
‘woman’ (spinner woman also, e.g.), therefore not only the waiver men were excluded from
entitlement. The regulations were against Article 66 para. (1) and Article 70/A para. (1) of the
Constitution, therefore the Court annulled the ‘woman’ additions from all activities listed in
the appendix.7
6
7
Decision 32/1997. (V. 16.) AB
Decision 7/1998. (III. 18.) AB
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As examining the decisions it is interesting to see that the Court itself is not consistent in
considering the legal basis of gender equality concerning the constitutional background of the
equality of genders. In the above mentioned case the Court declared the unconstitutionality
based on both provisions of the Constitution. It also happened that in one case the Court based
its argument supporting the rules of preference for women on Article 66 (1) and in another
case – concerning the same issue – on Article 70/A (1). Hence it seems that the practice of
making a distinction between the scopes of application of the rules is not well established yet
and both provisions may be successfully referred to.
Military service
The Court has dealt with the issue of military service several times. According to the
consistently upheld essence of some rulings the differentiated legal regulations concerning the
military and civil service of women are justified on the grounds of the relevant constitutional
provisions (Article 66 and 70/A). One decision is particularly interesting, because in this the
Court summarized its view and interpretation concerning women’s rights and positive
discrimination, from an international comparative approach (Treaty of Rome, UN treaties,
human rights documents)8.
The “name decision”
The case concerned several questions in connection with the right to bear a name, which, in
the interpretation of the Court is derived from the right to human dignity. Among these issues
I introduce one in the followings.
According to the Hungarian law on family, marriage and guardianship (thereon: AMFG), the
woman to be married may decide freely whether to bear the name of her spouse or not. After
examining the governing international treaties [European Convention on Human Rights
(thereon: ECHR), International Covenant on Civil and Political Rights (thereon: Covenant)]
and the practice of the European Court of Human Rights the Court held that the Hungarian
regulations in force do not fully comply with neither the provisions in Article 16 point 1/g) of
the ECHR or the ones in Article 26 of the Covenant, nor they do with the related judicial
8
Decision 46/1994. (X. 21.) AB; Decision 28/2000. (IX. 8.) AB
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practice. The treaties – contrarily to Hungarian law – provide for the right to change one’s
name upon marriage not only for women but for men as well.
According to Section 26 of the AMFG, for the time being, only women are allowed to bear
the husband’s name upon marriage, and there is no provision in the regulation about the
husband’s right to bear the family name of his wife. Therefore, the contents of this regulation
have caused an unconstitutional situation by not allowing men to bear the family name of the
wife upon marriage.
“In the opinion of the Constitutional Court, the provisions specified in Section 26 of the
AMFG grant the right to name changing upon marriage to women, but do not grant the same
to men. In view of the above, the Constitutional Court has not annulled the provisions of
Section 26 of the AMFG, but it has established an unconstitutional omission concerning the
deficiency in the statute”.9
Final remarks
I shall complete this brief analysis with two additional comments, viewing the Court’s
practice from an international approach. Firstly, by examining the rulings and comparing
them with international constitutional judicial practice it is clear that the European national
constitutional courts deal with like issues, concerning this topic, and they mostly arrive to
similar conclusions. Secondly, the practice of the European Court of Justice – even though it
declares its independency from national constitutional jurisdiction – carries the same
characteristics and follows the same principles the national constitutional courts do.10
Obviously there cannot be significant differences in interpreting these issues, as the courts
rely on similar national and international legal backgrounds. The only peculiarity is the
Hungarian Constitutional Court’s interpretation of the principle of equality.
Some of the decisions are available in English on the Court’s website: www.mkab.hu.
9
Decision 58/2001. (XII. 17.) AB
The final statements are based on the broad discussions at the Summer School, concerning each national
constitutional jurisdiction.
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