General legal framework

• Author: Kádár, András
• Pages: 15-16

15

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The constitution of Hungary includes the following articles dealing with non-discrimination.

Article XV of the Fundamental Law reads as follows:

(1) Every person shall be equal before the law. Every human being shall have legal

capacity.

(2) Hungary shall ensure fundamental rights to everyone without any discrimination

on the grounds of race, colour, gender, disability, language, religion, political or other

opinion, national or social origin, property, birth or on any other ground.

(3) Women and men shall have equal rights.

(4) Hungary shall take special measures to promote th e realisation of equal

opportunities.

(5) Hungary shall take special measures to protect children, women, the elderly and

persons with disabilities.

Thus, Article XV is a general clause, containing an open-ended list of protected grounds.

Not all the grounds listed in the directives are explicitly included (age and sexual orientation

are missing from the list), but when Constitutional Court jurisprudence is taken into

account it can be concluded that all the grounds covered by t he directives are included at

least implicitly.

In its jurisdiction on the non-discrimination clause in the Old Constitution (which was also

open-ended), the Constitutional Court c onsistently regarded sexual orientation as being

one of the ‘other grounds’.31 In its Decision No. 13/2013. (VI. 17.) AB,32 the Constitutional

Court concluded that the old jurisprudence of the Constitutional Court shall apply to the

Fundamental Law if the provisions of the Old C onstitution and the Fundamental Law are

identical or similar fro m a substantive point of view, and there i s nothing in the

constitutional context or the particul arities of the individual case that would exclude t he

possibility of such an application. Reading this in conjunction with the old jurisprudence, it

seems unambiguous – and it has not been challenged – that Article XV of the Fundamental

Law does include sexual orientation (and the same is true for age).33

This provision applies to all areas covered by the directives. Its material scope is broader

than those of the directives in the sense that i t is not specified. The provision states that

Hungary shall ensure fundamental rights to every person without any discrimination. Th is

shall be the case in all the areas affected by the directives, and beyond. However, the

provision only sti pulates the requirement o f n on-discrimination in relation to the

guaranteeing of rights that are regarded as fundamental.

For a long time, the p rovisions were regarded as not directly applicable. However, there

have been some recent judicial decisions, including one on the state ad ministration’s

responsibility for the widespread systemic segregation of Roma children (see Section

31 In its Decision No. 20/1999 (VI. 25.) on abolishing a discriminatory provision of the Penal Code (rendering

certain forms of sexual contact between same-sex siblings punishable, while not rendering them punishable

if the siblings are of different sex), the Constitutional Court claimed the following: ‘The sole basis of

distinction in the case examined is sexual orientation homosexual siblings are punishable under the law,

whereas heterosexual siblings are not. In terms of Article 70/A of the Constitution, this is discrimination

based on “other ground”’. Decision available at:

http://public.mkab.hu/dev/dontesek.nsf/0/1264902F1E6415B7C1257ADA00527C70?OpenDocument.

32 https://net.jogtar.hu/jogszabaly?docid=A13H0013.AB&txtreferer=A1100162.TV.

33 For a decision that examined – in the context of pension schemes – whether differentiation based on age

constituted discrimination (which presupposes that age is accepted as one of the protected grounds), see:

Constitutional Court Decision No. 871/B/2000. AB, 18 January 2005.