Hungarian Constitution Research Articles

A „nullum crimen elv” védelmében

During the COVID 19 pandemic, on 1 of May 2021, the Hungarian Government adopted the Decree No. 220/2021 which was based on the regulations of the Hungarian Constitution regarding the rules on special legal order. According to these rules, during a time of the special legal order, the government has right to make decrees in legal fields which need to be regulated by act. The Hungarian Government had inserted new crimes into the system of the Hungarian criminal law by the statute mentioned above, which was in force during the time of the special legal order announced in connection with the pandemic. With this step, the Hungarian Government had revalued the principle of „nullum crimen”, which is one of the most important principles in the system of substantive criminal law. This paper aims to present the legal problem and the answer of the Hungarian Constitutional Court to it.

The Crown of St. Stephen as a Symbol of Legal Continuity and Hungarian Constitutionalism (Historical Background)

In Hungarian history, the Crown of St. Stephen was an important relic symbolizing the unity of the Hungarian state. It was not merely a coronation jewel or symbol of royal prerogatives, but a respected element of the country’s historic “millennial”constitution. Although the doctrine associated with it was a unique Hungarian constitutional theory, symbolizing national independence, it was flexible enough to serve various political ideas and ambitions. The Crown has always embodied the monarchical form of the Hungarian State, and its sacred character symbolized the strong alliance of the monarchy with the Catholic Church. Is this historical doctrine compatible with the values and requirements of modern Europe and the requirements of present-day Hungarian constitutionalism?

Az Aranybulla útja a történeti mitológiába

The Road of the Hungarian Golden Bull to Historical Mythology The study focuses on the first steps of the road that lead the Golden Bull, issued by King Andrew II (1205–1235) in 1222, to the world of national myths. The Golden Bull was drafted primarily in order to solve an actual political crisis, yet it was understood in modern history as the strongest bulwark of a “thousand years-old Hungarian constitutionalism”. The memory of the Golden Bull did not fade after the death of King Andrew II. This study, based on an example from the 14th century, illustrates how the provisions were incorporated into the legal practice of the Middle Ages. As early as 1318 the Golden Bull was conceived as a general privilege, that was meant to regulate the basic questions of the relations between the monarch and his subjects. This perception was corroborated by King Louis I (1342–1382) in 1351, when he inserted the text of the Golden Bull in his own laws. The interpretation of the Golden Bull changed decisively in the modern era. Thanks to the collection of medieval Hungarian customary laws by István Werbőczy, the so-called Tripartitum, the notion spread that the nobility had the right to call the ruler to account in case of any grievance they suffered, a claim based precisely on the Golden Bull.

The Right to a Healthy Environment in the Hungarian Constitution

The aim of the study is to present the development of the environmental law institutions founded up to the present day. Regulations concerning the protection of the environment had first been defined on international level before they appeared in the national legal system. Basic questions of environmental law are being analysed in this study. The history of environmental law is reviewed briefly from the 1950s to the present day both in international and national aspects as well as the constitutional foundation of environment protection within the right to a healthy environment and its Constitutional Court practice. This study will not touch upon the detailed study of the underlying principals of the national environmental law.

The Protection of the Interests of Future Generations in the 10-Year-Old Hungarian Constitution, With Special Reference to the Right to a Healthy Environment and Other Environmental Issues

The present study is inspired by the tenth anniversary of the new Hungarian Constitution, known under the name of Fundamental Law, which was adopted in 2011 and entered into force in 2012. In this study we analyse the ten-year old Fundamental Law and its constitutional practice with regard to the important challenges and tasks of the 21st century, namely how the protection of the interests of future generations and the environment are reflected in it. Particularly important elements of the study are (a) the institutional guarantees of the relevant provisions, such as the provisions relating to the Constitutional Court and the Advocate of Future Generations, (b) the concept of GMO-free agriculture in the Fundamental Law, (c) the theses of the Constitutional Court practice on the prohibition of retrogression and the precautionary principle, (d) new interpretative frameworks and possibilities arising from other values of the Fundamental Law, such as the provisions on Christian culture, (e) the open questions of interpretation of the Fundamental Law on waste and the environmental liability regime, (f) the priority protection of natural resources, which are the common heritage of the nation, and last but not least (g) the particularly forward-looking integration of the interests of future generations in the rules on public finances and national assets.

Some Values and Guarantees in the Ten-Year-Old Hungarian Constitution, With a Look at the Constitutional Arrangements of the Countries Founding the European Integration

In this study, certain values and guarantee institutions of the Hungarian Fundamental Law are analysed in the light of the constitutions of the countries that have established European integration – Germany, France, Italy, and Belgium. Among the value systems, Christian culture and the family have been examined, while the study has also focused on the guarantees important for living conditions, such as strict public finance provisions, rules on emergency powers, and provisions guaranteeing a high level of protection for future generations and the environment. In addition to the analysis of the constitutions, the study makes several references to the jurisprudence of the countries concerned and to the most important aspects of constitutional developments in recent years.

Extract of Important Conclusions of the Kúria (Supreme Court of Hungary) Regarding Taxpayers’ Rights in Judicial Review Procedures for the Years 2017 to 2021

The fundamental rights of the taxpayer are set out in the Hungarian Constitution and statutory laws. The effectiveness of these rights is often further elaborated in court decisions. In this article, the author first summarizes the context of, and then presents extracts from, these decisions.

Carl Schmitt in Hungary: Constitutional Crisis in the Shadow of Covid-19

Abstract This paper discusses the Hungarian constitutionalism and the emergency model which can be called an ‘autocratic’ emergency model in which the government’s main aim is to create an emergency regime without real threat. That was the case in Hungary before 2020, but as the new coronavirus flourished the Hungarian constitutionalism and the rule of law withered. As the article asserts the declaration of the state of danger was unconstitutional because human epidemic is not involved in the listing of the constitution. The constitutional concerns have become even more complicated after the acceptance of the “Enabling Act” which gave unconstrained power for the Government. The spirit of Carl Schmitt’s theory is again emerged. As the coronavirus and its immediate effect necessitated extra-legal measures, the threshold between the rule of law and exceptionalism was fading swiftly and legal constitutionalism became a pleasant memory.

The assertion of fundamental principles relating to civil law notaries in the 21st century with special focus on Hungary

In our present paper, we tried to introduce the principles of notaries through the Hungarian notary's glasses. We did this through the challenges of the 21st century. Prior to the detailed description of the principles, we introduced the position of the Hungarian notary, where we also discussed the provisions of the Hungarian Constitution. Subsequently, more important legislation on Hungarian notary was mentioned and we discussed the diverse notarial procedures. In this connection, it is important to note that not only the notarial deeds are found in the Hungarian notary's procedures, but also the keeping of notarial registers. The paper deals with the responsibility of notary, the notary's and advertising relationships, the emergence of electronization and digitization. The paper presents the most important principles of notaries, including the principle of independence, impartiality and public authenticity.

Democracy in Lockdown

Democracy in Lockdown Kriszta Kovács (bio) on march 23, 1933, an act was adopted in nazi germany, in response to the "crisis" of the Reichstag building fire, to enable Hitler to issue decrees independently of the Reichstag (parliament) and the presidency. Article 48 of the constitution of the Weimar Republic made this act possible. Eighty-seven years later, on March 23, 2020, the Hungarian parliament debated a piece of legislation so similarly sweeping that Hungarians now informally call it the "Enabling Act." Seizing as a pretext the threat to public health caused by the spread of COVID-19, government members tabled a draft act on protecting against the coronavirus in accord with articles 48–54 of the Hungarian constitution. The act enables the government led by Prime Minister Viktor Orbán to issue decrees independently of the parliament. EMERGENCY POWERS UNDER THE HUNGARIAN CONSTITUTION This similarity might be only a strange coincidence, but it is not the first time that Prime Minister Orbán has jumped on a crisis to increase his power. Since returning to office in 2010 (he had led the Hungarian government previously, from 1998 to 2002), Orbán has used countless "crises" to consolidate his hold on power (Kovács 2016). For example, in 2011, a parliamentary supermajority justified the adoption of a new constitution with reference to the consequences of the 2008 global financial crisis and the country's high level of public debt. The ruling majority gave its crisis management policy a constitutional rank: the 2011 constitution contains a debt ceiling, and it deprives the Constitutional Court of its power to review financial laws. These measures remain in effect. [End Page 257] The 2011 constitution, sometimes called Hungary's "crisis management constitution," contains a detailed set of prescriptions for the state authorities to respond to emergencies. Articles 48–54 provide for special emergency powers in case of an imminent danger of war or external armed attack and in the event of a natural or industrial disaster. It contains an exhaustive list of situations in which the country could be deemed to be under threat, and it does not provide for the suspension of constitutional rights under any other circumstances. Several years later, faced with a sharp rise in the number of asylum-seekers arriving in Hungary, Orbán saw another opportunity to expand his power. Since mass migration was not among the constitutionally listed situations that might justify the introduction of emergency rule, Orbán's government in 2016 instead used article 15(1) of the constitution—"The Government shall exercise powers which are not expressly conferred by laws on another state body"—to declare "a nationwide state of crisis due to mass migration" (decree 41/2016). Today, even though the border with Serbia is hermetically sealed and not a single migrant can enter Hungary's territory (Inotai 2020), the "state of crisis due to mass migration" is still in effect because the government has renewed it every six months, most recently on March 5, 2020. DECREE ON THE PANDEMIC EMERGENCY Six days later, on March 11, 2020, once again citing article 15(1) of the constitution, Orbán's government declared a "state of danger because of the pandemic." (Decree 40/2020 also cited the state of danger clause in article 53 even though this article does not mention a pandemic as a source of danger.) The decree on the pandemic emergency included an automatic sunset after 15 days without parliamentary authorization. With that deadline looming, Orbán's government introduced the new Act on Protecting against the Coronavirus (Hungarian Spectrum 2020). Officials [End Page 258] argued that without the decree on the pandemic emergency, the government would not be able to properly respond to the crisis, and they pressed the parliament to act as quickly as possible. The democratic parliamentary opposition was unified in rejecting the expedited procedure, so the decree expired on March 26. In the meantime, between March 26 and March 30, the government (decree 71/2020) and the head of the National Public Health Center (decision of March 26) issued new orders on restriction of movement. In the process, the government itself demonstrated that it could issue the...

Renaming States\u2014A Case Study: Changing the Name of the Hungarian State in 2011. Its Background, Reasons, and Aftermath

A provision of the Hungarian constitution, adopted in 2011, has renamed the state. The name changed from the Republic of Hungary to Hungary, while the form of the state has remained “republic”. The purpose of this study is to explore the meaning, significance, and several consequences of this provision. The analysis consists of three main parts. The first one gives a general overview of the functions of the names of states. It claims that not only names but also changing or modifying names of states—taking place either by name-giving or by shaping convention—can serve certain functions. The second part focuses on the historical and constitutional details of renaming the Hungarian state, and summarizes the legal context that provided the framework for the 2011 renaming. The third part outlines the arguments for the change, takes a look at the official justification and actual reasons, and reveals some of the consequences of the name change in the past decade. The main contention of the paper is that the renaming of the Hungarian state that took place in 2011 lacked any overt and reasonable justification, and is best explained as an expression of anti-republican sentiment, which indicated, and partly paved the way for the transition into a kind of an authoritarian regime. Finally, the study raises a possible interpretation of the renaming of the Hungarian state in 2011, the point of which is that it adumbrated many later changes in public law and political systems.

Foundations of the Uncodified Historical Constitution of Hungary

The article examines the evolution of the Hungarian Public and Constitutional Law from 1301 until the Austro-Hungarian compromise in 1867. The topic is highly relevant, because the year 2017 marked the 330th anniversary of the 1st and 2nd Act of 1687, which state that the Habsburgs are the only and true heirs of the Hungarian throne; it also marked the 150th anniversary of the Austro-Hungarian Compromise. Furthermore the current Fundamental Law says that “We honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation”. The main chain of thoughts of the article presents the crown-ideology and the Doctrine of the Holy Crown, the Rákos field resolution of 1505, the Acts 2 and 3 of 1687, the Pragmatic Sanction, Acts 10 and 12 of 1790, the public law aspects of the April Laws of 1848, and the laws on the Austro-Hungarian Compromise. The article presents the fundamental documents of the Hungarian uncodified historical Constitution issued within the given period. Through their formation and historical background we can truly understand the Hungarian customary law and the legal traditions, which are still honoured by our present Fundamental Law.

Religiosity, Religious Practice, and Antisemitism in Present-Day Hungary

Since 1995, Surveys on antisemitism using national representative samples have been regularly carried out in Hungary. In this article, we used data from the 2011 and 2017 surveys to explore the relationship between three types of antisemitism, namely religious, secular, and emotional. Moreover, we scrutinized how different religiosity indicators can be used as explanatory variables for the different types of antisemitism. We found a slight increase in religious and secular antisemitism between 2011 and 2017, while emotional antisemitism remained almost the same. Religious anti-Judaism significantly correlated with both secular and emotional antisemitism, however, its relationship was much stronger with the former. When analyzing the relationship between different types of antisemitism and religiosity indicators, we found that while in 2011, all the indicators were connected to religious, and most of them to secular and emotional antisemitism, in 2017, only the variables measuring subjective self-classification remained significant. The results show that the relationship between religion and antisemitism underwent some substantial changes between 2011 and 2017. While in 2011, personal religiosity was a significant predictor of the strength of antisemitism, in 2017, religion serving as a cultural identity marker took over this function. The hypothetical explanatory factor for the change is the rebirth of the “Christian-national” idea appearing as the foundational element of the new Hungarian constitution, according to which Christian culture is the ultimate unifying force of the nation, giving the inner essence and meaning of the state. In this discourse, being Christian is equated with being Hungarian. Self-declared and self-defined Christian religiosity plays the role of a symbolic marker for accepting the national-conservative identity discourse and belonging to the “Christian-national” cultural-political camp where antisemitic prejudices occur more frequently than in other segments of the society.

Does identity matter?

During Brexit campaign leave supporters reckoned that their sovereignty is priceless. They meant that Britain’s status within or outside the European Union should not be decided upon economic reasons only. The campaign was successful and now the Kingdom is paying the price of her sovereignty. In Hungary in 2015 the government decided to ban shops to open on Sundays which was against the aspirations of both enterprises and consumers. The government found the measure so symbolic, so close to its identity that it did not respect any criticism. The government paid the political price of the unpopularity of the measure. Later on the government realised that the stake was too high and withdrew the piece of legislation. Such events clearly highlight that maintaining identity always has its price. Such price can be either economic or political. The question is if governments are ready to pay the price. It does not seem proper if mere economic and political expectations overrule symbolic issues. Neither it is acceptable if the government gives the nation’s entire fortune for symbolic reasons. It must always be considered how much identity costs and if it is worth paying the price. The question can be answered upon the identity test that has two factors: first how important the issue is (how close it is to identity) and if the price of identity is proportionate to the economic, political price. The more important the issue is the greater price can be paid. And conversely, the greater the economic or political price is, the more cautious one should be. The present article sums up the most basic information on constitutional identity and analyses the factors of the identity of the Hungarian constitution, the Basic Law, with special attention to the contemporary identity debate. It argues that constitutional identity is not a strict and non-changing phenomenon but rather the procedure of continuous development.

Útközben – Alapkérdések a szervezetileg önálló közigazgatási bíráskodás megszervezése kapcsán

In 2018 Hungary arrived at a turning point in the history of public administration: The seventh amendment of the Hungarian Constitution (Hungarian Fundamental Law) inserted the institution of self-governing administrative courts into the rules on courts. This paper deals with many of the basic questions of administrative justice, and of course, careful analysis of historical examples is not avoided. From the very beginning, the birth of the Hungarian administrative court (which the author regards as the day of the first meeting of the financial administration court) until last year’s constitutional amendment, the main changes follow. The extent of legal protection by administrative courts and the constitutional protection function that they may have implemented is an important issue. To understand today’s changes, one has to know the concept of the socialist (communist) state’s legal system on administrative court review.

Constitutional othering, ambiguity and subjective risks of mobilization in Hungary: examples from the migration crisis

ABSTRACTThis article discusses how an illiberal regime within the European Union (EU) can hinder the mobilization of citizens and civil actors by creating an atmosphere of “ambiguity”. In our analysis, we first discuss the Hungarian constitution of 2011, which provides the driving force of the regime, and next using the example of the migration crisis show how this atmosphere of ambiguity is created. We argue that although there is no physical violence present, opponents of the regime are disheartened to act because of the general atmosphere relying on the logic of constitutional othering, dividing the world into its enemies and friends and shifting from the rule of law to ruling by law. While the regime’s gaudy campaigns against immigrants, non-governmental organizations (NGOs), the Central European University, the EU or George Soros are omnipresent, we aim to go deeper and highlight the mechanism through which the regime manages to discourage citizens from voicing their discontent.

Defining the new polity: constitutional memory in Hungary and beyond

ABSTRACT This article examines constitutions as a special effort of constructing long-lasting national memories. These images of the past become, with the assistance of the constitutions, canonised in the heart of the entire legal system that should be obeyed by each and every citizen. The conceptions of history represented by the Constitution are effectively spread by the government machinery and maintained unchanged for a relatively long time due to the solid character of constitutions. This study focuses on the characteristics of Eastern European constitutions and more specifically on the Hungarian Constitution’s history-images and their relation to identity. The Hungarian Constitution is the most recent European case that has been brought into the limelight of the international media because of its questionable jurisdiction process that ran against the contemporary democratic values of legal thinking in the Western hemisphere. The present study draws on legal sources and debates of legal experts in the making and assessment of this legal document. In addition, the analysis also relies on public discourse related to the reception of the troubled legislation and its modification process.

THE RIGHT TO AN IMPARTIAL JUDGE

The author analyses the institute of impartiality of judge in criminal proceedings. First, the paper points to norms of Article 6 of European Convention on Human Rights and guarantees of the fundamental rights in criminal procedure in Hungarian Constitution. Afterwards, the author establishes material elements that constitute the requirement of impartiality, how it is possible to set aside partiality and what are the results of this requirement within the concrete regulations of the Hungarian Act on the Criminal Procedure.

Decision 22/2016. (XII. 5.) AB on the Interpretation of Article E)(2) of the Fundamental Law

In a case of first impression, the Constitutional Court of Hungary (CCH or Court) ruled on November 30, 2016 that, in exceptional cases, it is competent to consider whether Hungary's obligations to the European Union (EU) violate fundamental individual rights (including human dignity) or Hungarian sovereignty as protected by the Hungarian Constitution. The decision places Hungary squarely within the growing group of EU member states whose constitutional courts have decided that, despite the decisions of the European Court of Justice regarding the primacy of EU law, EU member states are not compelled to violate their domestic constitutional obligations in carrying out their shared EU commitments.

The New Hungarian Constitution: Legal Critiques from Europe

Hungarian constitutional and legislative reforms have been in the spotlight since Hungary’s adoption of a new Fundamental Law, which entered into force on the first day of 2012. Europe’s two leading international organizations (the Council of Europe and the European Union) already issued an opinion about it the year before its entry into force, and they continued to closely follow Hungarian constitutional developments during ensuing years. The new Fundamental Law was followed by a series of new ‘cardinal laws’ and many controversial reforms. This article presents and discusses the opinions delivered by the Venice Commission, the European Court of Human Rights, and the eu institutions on these reforms and the different types of arguments on which they relied. This article also aims to present the interaction between the Hungarian government and Europe’s two leading organizations concerning the new constitutional setting of Hungary, focusing on the legal arguments in each case.