Precedents and case-based reasoning in the case law of the Hungarian Constitutional Court

Abstract

In the past thirty years, the Hungarian Constitutional Court has used precedent in its practice in a coherent way: the Court does not refer to the decisions of national courts, but in every case refers to its own former decisions; while in ‘hard cases’ or socially sensitive ones from a political or social point of view, it refers to decisions of other constitutional courts, the ECtHR and the CJEU. The enactment of the Fourth Amendment to the Fundamental Law (2013) can be considered a dividing line from the point of view of the technique of referring to former decisions of the Court. The Amendment formally repealed the decisions of the Court which were delivered before entering into force of the Fundamental Law (2012). Therefore, the Court was forced to build a two-step reasoning technique in this regard: firstly, it examines if there is a textual correspondence between the former Constitution (1989) and the Fundamental Law (2011), and after that it must indicate positively that its former decisions (delivered before entering into force of the Fundamental Law) are relevant in the specific case.