Elküldtük Strasbourgba az Alkotmánybíróság 33/2015. sz. határozatának angol nyelvű fordítását.
Célunk, hogy felhívjuk az Európa Tanács főtitkárának és az Emberi Jogok Európai Bíróságának a figyelmét arra, hogy az Alkotmánybíróság ítélkezési gyakorlata súlyosan sérti az alapvető emberi jogokat.
Az Alkotmánybíróság jogfelfogása elfogadhatatlan egy demokráciában.
A következő hetekben kezdjük el küldeni az Emberi Jogi Bírósághoz azoknak a devizahiteleseknek a beadványait, akik tavaly novemberben csatlakoztak a strasbourgi eljáráshoz. (Csatlakozzon a második csoportos strasbourgi keresethez!, 2015.11.01). Az érintetteket hamarosan emailben fogjuk értesíteni.
Felhívjuk az autóhitelesek figyelmét, hogy a forintosítás ellen április 4-ig nyújthatnak be panaszt az Alkotmánybírósághoz (Forintosítás – Az autóhitelesek is indulhatnak Strasbourgba). Amint az AB az ő panaszaikat is elutasítja újbb strasbourgi eljárást fogunk szervezni.
Hamarosan közzéteszünk egy újabb alkotmanyjogi panasz mintát azoknak, akik deviza-alapú személy kölcsönnel rendelkeznek.
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Töltse le a levelet az Alkotmánybíróság 33/2015 sz. határozatának angol nyelvű fordításával együtt
Levél az Európa Tanács Főtitkárához:
Budapest, 2 February 2016
Hungarian Constitutional Court is depriving consumers of their human rights
Dear Mr Jagland,
In addition to my letter of 30 November 2015 I am also sending you an English translation of Decision 33/2015 from the Hungarian Constitutional Court (s. attachment). On its face, it appears to be supporting the human rights of consumers. However, when you dig a little deeper into the substance of the decision, you will discover that the human rights of consumers are being violated in a most egregious way.
To understand how, we have to look at prior case law. The Hungarian Supreme Court (Kúria) delivered a decision on 4 July 2013 (Gfv.VII.30.078/2013/14.), in which it held an FX consumer loan contract void, because the lender attached a hidden cost element to it. This decision encouraged more than 12,000 FX loan debtors to initiate court proceedings against their lenders in order to have their loan contracts also declared void. The essence of the Hungarian Supreme Court’s holding was one of unconscionability.
Now according to the Hungarian National Bank there were approximately 650,000 FX consumer loan contracts in effect as of September 2014. In a measure of panic by the Hungarian Parliament they enacted a law providing for the mandatory conversion of existing foreign currency (FX) consumer debts into Hungarian forints at the date of enactment (Sections 3, 10 and 15 of Act LXXVII of 2014). Hence, circumventing any claims any FX loan debtors would have had against their oppressive lenders. In doing so, ultimately violating the Hungarian Constitution and the European Convention on Human Rights (Convention).
The significance of this is the fact that the law amends only existing private party contractual loan agreements ex post without the provision of any substantive or procedural due process. It does not even attempt to disguise itself as an act that affects the future rights of parties.
The Hungarian Parliament has overstepped its legislative bounds under the purview of the Convention; not so under the Hungarian Constitution, at least according to the decision of the Hungarian Constitutional Court. The Court rejected more than 700 applications in connection with the Act that ordered a mandatory conversion of foreign currency (FX) consumer debts into Hungarian forints at the date of enactment.
The applicants argued that the Act violates Article XXVIII of the Constitution [Right to a Fair Trial] and Art. 6 of the European Convention on Human Rights because the Hungarian Parliament is not entitled to amend private-law contracts with legislative measures and, by doing so, determine civil rights and obligations. This is outside the scope of their powers.
The Constitutional Court, however, came to a different conclusion. In the Court’s view private-law contracts may be amended by legislative measures. Decision 33/2015 reiterates the reasoning of previous decisions (8/2014, 3168/2015 and 3147/2015). These decisions demonstrate that the justices do not respect the values of the European Convention on Human Rights. The Court appears not to understand the concept of separation of powers.
Solving the FX consumer debt crisis in line with the Government’s interests
The Hungarian authorities have been warned many times by their European partners not to allow consumers to take out FX loans, because such instruments are very risky and have the propensity to financially ruin debtors, which in turn will have a negative impact on the national economy. The FX consumer debt crisis is caused by the complete failure of the Hungarian Financial Supervisory Authority to perform its obligations and the Banks to perform adequate risk assessments. A large number of victories by FX loan debtors in court against their lenders would harm the Government’s financial-interests as more and more loan agreements are held void.
In a cunning display of legislative initiative Parliament passed Act LXXVII of 2014 “protecting consumers from further FX risk” clearly in violation of the Hungarian Constitution and the Convention, not to mention absolutely needless as the Hungarian Supreme Court had already handed down a decision that took consumer protection rights into account. The enclosed decision has further upheld this Act, even though the Court’s reasoning is seriously flawed.
The Hungarian Constitutional Court has developed the concept of “amending private-law contracts by legislative measures”. This concept allows the Government to impose new rules on existing FX consumer loan contracts. Several laws were adopted during 2014 and 2015, which are based on this concept (Act XXXVIII of 2014, Act XL of 2014, Act LXXVII of 2014, Act CXLV of 2015). These laws ensure that the FX consumer debt crisis is solved in a way that best suits the Government’s interests regardless of the existing legal framework.
The concept of “amending private-law contracts by legislative measures” has a number of advantages for the Government. In particular the Government does not need to bother with the debtor’s legal arguments against the validity of their contracts, because the legislative process does not afford debtors the right to speak or appeal.
Violation of Art 6 of the Convention
The concept of “amending private-law contracts by legislative measures” clearly affects the “…determination of … civil rights and obligations …” stipulated in Art. 6 of the Convention and further manifestly violates the “…[entitlement] to a fair and public hearing … by an independent and impartial tribunal established by law” as set forth in Art. 6 of the Convention. Not only does the Hungarian Parliament not qualify as an impartial body, but it also has an explicit vested interest in the outcome. Furthermore even if Parliament did qualify as an “impartial tribunal” – which it does not – it has not afforded any debtor any meaningful substantive or procedural due process within the legislative process.
It is quite understandable that such a parliamentary body cannot afford debtors these rights, because constitutionally it is not established to do so, which makes the rationale behind Art. 6 of the Convention even more substantial and prevalent. Art. 6 of the Convention clearly specifies, that only “impartial tribunals” are entitled to determine civil rights and obligations, and it also clearly defines the institutional and procedural requirements for such tribunals. The Hungarian Constitutional Court ignores all of these requirements.
For more detail, please refer to the Section F (“Statement of alleged violation(s) of the Convention and/or Protocols and relevant arguments”) of the ECtHR cases 27514/15 and 36981/2015 and to the Guide on Article 6 “Right to a Fair Trial (civil limb)” of Council of Europe/European Court of Human Rights, 2013.
Alternatively even if the Court’s holding was considered to have merit, i.e. that a legislative body has the power to alter civil rights and obligations ex post, the Court’s reasoning is nonetheless flawed by its own standards.
The Constitutional Court does admit that at the time the Act becomes effective, it does effectively intervene in the contractual freedom of the parties, because of its draconian nature, but fails to find this unconstitutional (Decision 33/2015 Sec. -) as long as measures undertaken by Parliament are undertaken upon the same conditions that must be observed by courts when amending private-law agreements (Decision 33/2015 Sec. -).
The Court focuses on two elements: 1. The equitable interests of both parties, and 2. A balance of interests in the light of new circumstances. The Court identifies the weakening of the Hungarian forint as a circumstance, which has changed since the conclusion of the FX loan contracts (Decision 33/2015 Sec. ), and this change in circumstances provides the grounds for the application of clausula rebus sic stantibus (Decision 33/2015 Sec. ). However, what the Court fails to do, probably for political reasons, is to enforce the equitable provisions provided for in Art 6. of the Convention in its analysis. The Court must also ensure that Parliament can comply with the provisions of Art. 6 of the Convention, which has been completely disregarded by the legislative proceedings conducted by Parliament in this matter. The Court is trying to fit a round peg into a square hole. The fact that there is separation of powers and given the construction of the legislative and judicial branches of government and the requirement of an “impartial tribunal” for the determination of civil rights and obligations, the Court’s clausula rebus sic stantibus argument is prima facie flawed.
The crux of the issue from a legislative perspective lies in the timing of the mandatory FX conversion into Hungarian forints. Had Parliament enacted this retroactive Act and specified that these FX loan contracts are to be converted into Hungarian forints as of the date of their execution and not the date of the enactment, it would have been the lending institutions who would have been up in arms, because then they would be forced to bear the brunt of FX volatility and not the unsophisticated consumer.
Please review Decision 33/2015 and help us convince the Hungarian Constitutional Court that the concept of “amending private-law contracts by legislative measures” is not compliant with Convention values.
Please encourage the Court to change its decision-making practice in the near future, when FX debtors begin filing complaints against the Act CXLV of 2015.
Töltse le a levelet az Alkotmánybíróság 33/2015 sz. határozatának angol nyelvű fordításával együtt
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