Hungarian Constitutional Court Research Articles

Case-based reasoning as a measure of constitutional adjudication

AbstractCase-based reasoning has high significance in constitutional adjudication. The constitutional courts of the Kelsenian model also follow their own previous decisions to develop their own case law, even if those decisions do not bind them formally. In the course of constitutional interpretation, to build coherent and predictable case law and determine constitutional principles and standards in a consistent way are also reasonable expectations of constitutional adjudication deriving from the rule of law. The paper analyses the case law of the Hungarian Constitutional Court from this perspective, regarding the criticism of public figures in defamation cases. It takes case-based reasoning as a measure of the case law of the HCC, reveals the tendencies and highlights the main problems associated with it.

The Possible Impact of Urgenda and the Klimabeschluss on Climate Litigation on the Example of the Petition Pending Before the Hungarian Constitutional Court

Abstract While there is scientific consensus on the causes and consequences of climate change, also reflected in international agreements and EU norms obliging states to reduce GHG emissions, domestic legislation has been slow or imperfect in implementing reduction duties. Although climate litigation is not a new phenomenon, a specific strand of climate litigation is now gaining impetus owing to the success garnered in Urgenda and the Klimabeschluss: litigation focusing on states’ omitting to lawfully regulate emission targets. This paper presents the context of novel climate litigation in the face of Russian aggression and the ensuing disincentives to promote ambitious reduction goals, proceeding to describe the arguments and findings in the two landmark cases and their effects on future climate litigation as seen in the example of the climate petition pending before the Hungarian Constitutional Court.

Striking a balance: the interplay of CJEU rulings and international human rights obligation with national constitutional identities

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of “national identity” and “constitutional identity”, their relationship, and the introduction of the concept of “national identity” into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of “constitutional identity”, but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions.
 The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves.
 The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the “obligation of uniform interpretation” and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection.

Court-Packing Accomplished – The Changing Jurisprudence of a Subordinate Constitutional Court

The worldwide decline in democracy poses a major challenge to the independence of constitutional courts, which are the guardians of constitutionalism and the rule of law. The international literature on constitutional adjudication is therefore understandably concerned with how judicial independence is undermined in different types of authoritarian regimes. However, less attention has been paid to how the practice of these courts evolves when they are directly or indirectly controlled by the government. This article examines how the practices of the Hungarian Constitutional Court changed following the successful court-packing by its government, which exercised its constitution-making parliamentary majority to subvert the Court, which was once one of the most activist constitutional courts in Europe. In this case, political influence was fullyexercised; this study shows how the Constitutional Court, in order to maintain a semblance of independence, uses several different methods to uphold the government’s will. The Hungarian example may be instructive as it illustrates where the dismantling of judicial independence can lead.

The Transparency of Constitutional Reasoning: A Text Mining Analysis of the Hungarian Constitutional Court’s Jurisprudence

The Transparency of Constitutional Reasoning: A Text Mining Analysis of the Hungarian Constitutional Court’s Jurisprudence

Judicial self-perceptions and the separation of powers in varied political regime contexts: the constitutional courts in Hungary and Slovakia

ABSTRACT The study of constitutional courts (CCs) of post-communist Europe typically entailed the belief in CCs’ transformative potential for the consolidation of democracy. Recently, this belief has been questioned, albeit the knowledge of why at least some CCs in the region failed to prevent the rise of non-democratic regimes remains limited. This article addresses this gap via the cases of Hungary and Slovakia, which have taken a different trajectory post-2010: the Slovak CC (SCC) remains an independent institution, while the Hungarian CC (HCC) has been packed by the executive. By combining contextual case law analysis of judgments referring to democracy and semi-structured interviews, the article shows that, during critical moments, the HCC did not perceive itself as responsible for Hungarian democracy, which resulted in its self-marginalisation. The SCC was largely spared from similarly critical moments, which, however, facilitated particular self-perceptions of its responsibility (or lack thereof). These findings offer empirical support for institutionalist scholarship that emphasizes the impact of ideas in calibrating the self-perceptions of political institutions and their positioning in the political system. Constitutional courts remain inseparable from the political regimes they are located in.

The Hungarian Constitutional Court’s practice on restrictions of fundamental rights during the special legal order (2020–2023)

ABSTRACT The paper deals with the practice of the Hungarian Constitutional Court regarding the restrictions of fundamental rights during the state of danger between 2020 and 2023. The state of danger – which is a type of special legal order in Hungary – was first introduced in March 2020 due to Covid-19. The rules of the Fundamental Law related to the special legal order reserve the Government the opportunity of broader restrictions on certain fundamental rights than in a normal legal order. It was the first period when the Constitutional Court could have established its practice and defined its own role in a special legal order, since the democratic transition in Hungary. The need for the interpretation of the constitutional rules on special legal order never applied before has posed a significant challenge to the Constitutional Court. The paper first examines the development of the constitutional rules on special legal order situations since the democratic transition, then reviews the most important parts of the Constitutional Court’s practice on the cases related to the restrictions of fundamental rights in special legal order with a focus on the elements of the test used for checking the constitutionality of the challenged items of legislation.

The parliamentary margin of movement for strengthening the role of historical dimensions in interpretation and law-making: The case of Hungary

AbstractWhen the historical dimension of the Hungarian public law is assessed, usually the analysis of the constitutional court case law is highlighted; however the Parliament might have an equally important weight. Article R) of the Fundamental Law provides two crucial references to the historical constitution: the clause of paragraph (3) which mentions the achievements of the historical constitution, and paragraph (4) which imposes the duty on all bodies of the Hungarian state to protect the constitutional identity of Hungary laid down in 22/2016. (XII. 5.) ruling of the Hungarian Constitutional Court. These two provisions are also binding for the Parliament to take into account the historical development of the current legal system during all of its legislative activities. In our view, this duty is more extensive than the examination of certain historical laws; the whole historical development of a legal field should be considered as regard the content of laws; the circumstances of their enactment, their special meaning during each historical period. In our contribution, those already known examples are enumerated, when the Hungarian Parliament relied explicitly on the achievements of the historical constitution, and how broad is the parliamentary space of manoeuvre in this regard. Our focus is to identify such alternative legal instruments, which could strengthen the role of historical arguments in the parliamentary practice. Certain elements of the legislative process will be considered (committee meetings; impact assessment of laws, the potential second chamber), while certain components of the laws will be also assessed (preambles, reasonings of laws, parliamentary resolutions).

Democracy, Procedural and Social Rights, and Constitutional Courts in Hungary and Slovakia

In democracies, individuals are free to develop their own conceptions of values, and try to persuade others of their viability. However, some of these conceptions carry greater weight than others. In particular, centralized constitutional courts (CCs) authoritatively interpret fundamental values as they are typically entrusted by constitutions to do so. This article introduces a new approach to examine how CCs advance particular value conceptions, via scrutinizing the understandings of procedural rights and social rights by the two formally most powerful in Central Europe: the Hungarian (HCC) and the Slovak (SCC) Constitutional Court. While procedural rights capture the minimum standards of equal treatment, social rights signal more robust readings of democracy which raise expectations of improved well-being. The two jurisdictions offer windows into the working of CCs operating in regimes with a history of authoritarianism—whereas Slovakia is currently a fragile democracy at best, Hungary has regressed into an illiberal regime. The article makes use of new institutionalism, where ideas articulated in the CCs’ case law have a potential to influence the political regimes the CCs are located in. Using a case selection method based on keyword search, its two case studies, covering the period between the 1990s and 2017 and 77 majority opinions show how the SCC seldomly connected procedural and substantive rights to democracy, but this went unnoticed in the broader public. For the HCC, however, the absence of the connections between democracy and justice, especially when interpreting social rights, appears to have contributed to its image as distant from the public, locked in abstract legal discourses. The findings prompt questions about the impact of public perceptions of the CCs on the capacity of actors with authoritarian ambitions to launch successful assaults on the CCs, as well as on the potential of the CCs to prevent these assaults by articulating particular value conceptions.

Introducing HUNCOURT: A New Open Legal Database Covering the Decisions of the Hungarian Constitutional Court for Between 1990 and 2021

AbstractThis article presents HUNCOURT, a complex open legal database for the quantitative analysis of the practice of the Hungarian Constitutional Court (HCC). Covering all HCC decisions and orders published between 1990 and 2021, the new database is published under an Open Database License and allows for advanced queries that go beyond the search engine options of industry-standard proprietary legal databases. We bypass the often inaccurate and time-consuming manual search options by providing a full text database that is entirely machine-readable, along with a full selection of available metadata. In the article, we also demonstrate the potential of the new database for scholarly research by presenting a use case for such analysis related to the self-reflexivity and reasoning of the constitutional court. We show that a state-of-the-art database opens up possibilities for applying quantitative text analysis and text mining to research questions that have so far been mostly analysed in a qualitative framework.

National Security-Related Expulsion Cases during the Pandemic in Hungary: Secret Revealed?

The research investigates the reasons behind the surge in the number of expulsion cases awaiting resolution by the Constitutional Court of Hungary during the initial year of the pandemic by conducting an analysis. Identity between the cases examined can be discovered along issues related to factual and legal merits, which in several cases is the cause of the problem and the effect of which draws attention to the right to an effective remedy. The study focuses on the factual and legal issues of decisions on expulsion and entry and residence bans from the point of view of legally established third-country nationals residing in Hungary. The study explores Constitutional Court and high court decisions of the period compared to the relevant case law of the Supreme Court in a comprehensible manner and digs up the roots of the identified common problems. Exploring the legal basis in the light of basic international and EU law obligations, both access to classified documents and a system of appeal against decisions constitute a set of complex, completely independent and unrelated procedures, that ultimately means that the facts on which the expulsion is based, which are also particularly difficult to ascertain, cannot be effectively disputed.

Constitutional Complaints by State Organs? Changes in the Standing Requirements before the Hungarian Constitutional Court

Constitutional Complaints by State Organs? Changes in the Standing Requirements before the Hungarian Constitutional Court

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 Hungarian sword of constitutional identity

AbstractIn its ‘refugee quota decision’ of 2016 the Hungarian Constitutional Court (HCC) ‘invented’ its competences of ultra vires, sovereignty and constitutional identity controls. The sword of constitutional identity (CI) has been forged against foreign – first of all – EU law. In the development of the new concept the interplay between the Government, the Government-dominated parliament and the Constitutional Court loyal to the Government seems to be evident. The textual analysis of the relevant HCC's decisions proves that the Hungarian Constitutional identity (HCI) contains legal acts in force – including the Fundamental Law (constitution) and the Founding treaties of the EU -, legal acts ‘not in force but valid’ and activities related to the fight for independence of the Hungarian State.As far as the nature of the HCI is concerned, the article demonstrates the strong relationship with sovereignty control, and the ‘historical constitution’ and emphasises the HCC's statement according to which the CI is not created by the constitution, it is merely acknowledges it.Given the large number of elements identified as part of the HCI, its openness to the inclusion of further elements, and the questionable nature of the HCI, the author submits that the concept is inappropriate for any meaningful constitutional review.The HCC – at least until now – despite being invited to do so, has refused to use the sword against EU secondary law and the judgment of the European Court of Justice, and avoided overt constitutional conflict. However, this does not mean that the HCC is ready to enter into sincere dialogue with the court in Luxembourg.

Do constitutional courts restrict government policy? The effects of budgetary implications and bloc-politics in the Hungarian Constitutional Court's decisions between 1990 and 2018

ABSTRACT The article addresses the budgetary implications of constitutional adjudication by analysing the decisions of the Hungarian Constitutional Court (HCC) between 1990 and 2018. Our results highlight that the HCC does not narrow the parliamentary majority's room to manoeuvre by blocking policies with serious budgetary consequences, and the potential budgetary consequences of a decision do not weigh in with the judicial output. At the same time, right-leaning courts are more likely to declare a law unconstitutional passed by a left-wing parliamentary majority, whereas left-wing courts adjudicate unconstitutionality with about roughly the same likelihood in cases of right- and left-leaning parliaments.

Mutual Constitutional Tolerance in the EU, with Special Emphasis on the Recent Case Law of the Polish and the Hungarian Constitutional Court

Mutual Constitutional Tolerance in the EU, with Special Emphasis on the Recent Case Law of the Polish and the Hungarian Constitutional Court

The use of the precautionary principle and the non-refoulement principle in public law

In addition to interpreting the precautionary principle, the present article shows that this principle of environmental law applies to agricultural practice as well. In a separate chapter, we analyze the relationship between the non-refoulement (also known as non-derogation) principle and the precautionary principle in connection with the latest cases of the Hungarian Constitutional Court’s practice. This article summarizes the counter-arguments of the constitutional judges against a strong interpretation of the precautionary principle and analyzes whether a strong interpretation of said principle prevails in the practice of the Deputy Ombudsman for Future Generations.

The Constitutional Dilemmas of Terminating Intra-EU BITs

The adoption of the agreement for the termination of intra-EU bilateral investment treaties in 2020 is a big step forward in the long saga of these investment treaties. This agreement aims to overcome every point of discord between the investment agreements and the EU legal order by terminating both intra-EU bilateral investment treaties and the pending dispute settlement procedures that arose from them. In light of the landmark 2018 Achmea judgement, the agreement asserts that the key role should be given to the Court of Justice of the European Union in this area. This is a great endeavour since almost one-fifth of the investment arbitrations worldwide came from disputes within the European Union. However, it does not seem that the agreement will have the final say since constitutional questions were raised concerning its application. In this spirit, this article briefly outlines the legal and constitutional dilemmas intra-EU bilateral investment treaties pose in the European Union. Then, it outlines the contours and major provisions of the termination agreement, especially with regard to the pending arbitration proceedings. In light of a concrete case brought before the Hungarian Constitutional Court, the article explores the constitutional dilemmas raised by the termination agreement. It highlights three major questions: the international legal aspects, the question pertaining to the European judicial dialogue, and the constitutional principle of non-retroactivity. The article takes into account the major theoretical aspects of each of these dilemmas.

Access to constitutional complaint procedures: A real chance?

Abstract In a recent decision, the European Court of Human Rights concluded that the constitutional complaint before the Hungarian Constitutional Court can be seen as an effective domestic remedy. This decision shows the growing role of constitutional complaint procedures even in the international system of human rights protection; therefore, it is worth examining how national laws ensure efficient access to such procedures. The current paper aims to analyse a specific aspect of this complex problem, namely, the question of legal aid in constitutional court proceedings – particularly constitutional complaints procedures – in Germany, Austria and Hungary. As a general staring point, it is intended to derive the need for legal aid from the national constitutions, followed by an analysis on the availability of legal aid schemes for constitutional complaint procedures and their conditions. The examination is based on the national legal provisions and case-law, as well as the relevant secondary literature. This comparative study can enable some conclusions to be drawn on the question of how constitutional complaints can become more efficient tools in the protection of fundamental rights for those in need, as well.

EctHR Judgements in the Decisions of the Hungarian Constitutional Court

The aim of this study is to explore the influence of the judgements of the European Court of Human Rights (ECtHR) on the case law of the Hungarian Constitutional Court on the basis of the analysis of thirty selected decisions. The Constitutional Court has a rather ambivalent attitude (to the references) to the ECtHR judgements. One of the approaches is that, based on the principle of pacta sunt servanda, the Constitutional Court should follow the Strasbourg case law and the level of protection of fundamental rights, even where this would not necessarily stem from its ‘precedent decisions’. In other decisions one can come across with arbitrary selection of ECtHR judgments or silent disregard of the Strasbourg case law. The Constitutional Court uses the ECtHR jurisprudence in its constitutional reasoning in a quite multicoloured and flexible way. Even when the ECtHR judgements have a very loose connection with the subject matter of the case before the Constitutional Court, it is not reluctant to rely on them. However, in the so-called common cases the Court not necessarily makes much use of the relevant ECtHR judgement or it is not decisive in itself. A large body of dogmatic considerations elaborated in the Strasbourg case law has become a part of the Hungarian constitutional law, which is reaffirmed case by case by the Constitutional Court. Nevertheless, it cannot be identified precisely what weight the Constitutional Court attributes to the ECtHR judgments.