Hungarian Constitutional Court Research Articles

The Hungarian Constitutional Court: A Constructive Partner in Constitutional Dialogue

Following the landslide victory of the Fidesz party in 2010, the new government, backed by a two-thirds majority in the parliament, started quickly transforming politics and to some extent the polity of Hungary as well. Due to the high international reputation of the Hungarian Constitutional Court, attacks against the Court became widely followed in the international scientific community. Several volumes and articles dealt with the transformation of constitutional adjudication after 2010, but no one focused on the question of whether the backlash against the Court had any ground in the practice of constitutional adjudication in Hungary. This chapter will explore to what extent the HCC has really constrained the room for manoeuvre of the legislator in Hungary after the democratic transformation process, and examine whether the narrative of a Court unduly entering the political field and, consequently, constraining too heavily the democratically elected parliamentary majority might prove true. We will argue that the practice of the HCC and its position within the system of separation of powers might be best described as a partner in a constitutional dialogue. In this position, the HCC signalized quite frequently that the legislator departed from the path of constitutionality but, at the same time, developed a highly refined instrumentarium not to constrain too heavily the legislator. Thus, the attitude of the court towards the legislator has been cooperative and partnerial rather than confrontative.

Praksa Ustavnog suda u oblasti ustavnosti parlamentarnog izbornog sistema Mađarske u periodu od 2012. do 2017. godine

Hungary's new constitution (also known as the Basic Law or Fundamental Law) reformed the rules governing the election of members of parliament. The Hungarian parliament further reshaped these rules with two subsequent pieces of legislation: the Act CCIII of 201 on the election of members of parliament, and the Act XXXVI of 2013 on Electoral Procedure. The material and procedural rules for the elections have introduced new features into the electoral system which many have criticized for constitutional considerations. This paper systematically introduces the Hungarian Constitutional Court's decisions on legal norms for parliamentary elections as they have developed since the adoption of the act on electoral procedures.

Decision of the Hungarian Constitutional Court on the Exercise of the Right to Vote of Hungarian Citizens Living Abroad

Decision of the Hungarian Constitutional Court on the Exercise of the Right to Vote of Hungarian Citizens Living Abroad

The Hungarian Constitutional Court and the financial crisis

The article joins the scholarly discussion regarding how the financial crisis affects constitutional adjudication. It is argued that constitutional adjudication is changing in Hungary partly with regard to the financial crisis, because references to the financial crisis are a strong element of the argumentation e.g. in foreign currency loan related cases, but also in the justification of general constitutional changes, in the adoption of certain provisions of the Fundamental Law. The assessment suggests that the instability of constitutional adjudication is also interrelated with the general constitutional crisis in Hungary since 2010. Both factors of the financial crisis and of the constitutional crisis have led to the alteration of former rule of law standards in Hungary also in cases related to the financial crisis, but otherwise as well. The paper composes of two parts, the first explains the deepest financial and constitutional crisis. In the second part, we summarize the jurisprudence of the Constit...

Hungarian Constitutional Court: The Limits of EU Law in the Hungarian Legal System

Abstract The Constitutional Court declared in its ruling 22/2016 (XII 5) that by exercising its competences, it can examine whether the joint exercise of competences under Article E) (2) of the Fundamental Law of Hungary infringes human dignity, other fundamental rights, the sovereignty of Hungary, or Hungary’s self-identity based on its historical constitution.

National(ist) Constitutional Identity?: Hungary's Road to Abuse Constitutional Pluralism

This paper discusses a decision of the Hungarian Constitutional Court issued in December 2016, in which the judges refer to the country’s constitutional identity to justify the government’s refusal to apply the EU’s refugee relocation scheme in Hungary. The misuse of constitutional identity, the paper argues cannot be derived from the previous jurisprudence of the Court. Right before and after the EU accession of the country the Court followed a mild approach of limited EU law primacy approach, which did not change immediately after Viktor Orban’s government introduced an illiberal constitutional system and packed the Constitutional Court after 2010. The reason for change has been the government’s anti-migration policy, and the Court was instrumental to justify the government’s desire to exclude refugees from Hungary and to evade its obligations under European law. The paper concludes that this abuse of constitutional identity for merely nationalistic political purposes discredits every genuine and legitimate reference to national constitutional identity claims, and strengthens the calls for an end of constitutional pluralism in the EU altogether.

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 Hungarian Constitutional Court’s Place in the Constitutional System of Hungary

This paper presents the achievements of the “Rule of Law Revolution” and the role of the Constitutional Court in the different stages of Hungary’s rule of law evolution. Special attention will be placed on the current Hungarian practice of rule of law, the topics of rule of law, constitutionalism and the division of powers within the framework of legal and political constitutionalism will be discussed. The paper also will summarize the views that criticized the activism of the Hungarian Constitutional Court, and those that have laid down the groundwork for the expansion of political constitutionalism after the 2010 Parliamentary elections. Finally, the challenges of rule of law and constitutionalism will be examined, with regard to the role of the Court as the principal organ for the protection of the Fundamental Law in the context of Hungary’s membership in the European Union.

Hungarian Constitutional Court: Transparency and Business Activities of the State

The Constitutional Court of Hungary recently delivered two important decisions concerning freedom of information. In both cases, the National Assembly attempted to curtail the transparency of the Central Bank and the Hungarian Mail, and the President of the Republic requested for an ex ante constitutional review. The decisions contain pivotal arguments concerning legal certainty and freedom of information, and can be read as proof that in the most crucial cases the Constitutional Court of Hungary still stands up against the majority of the parliament. However, it is worth mentioning that in the more straightforward case – the decision about the modification of the Act on the Central Bank of Hungary – there was a wide professional consensus on the unconstitutionality of the new rules. This consensus was supported by the opinion of the National Authority for Data Protection and Freedom of In- formation. The reasoning of the other decision which examines the new rules of the Postal Service Act could arguably be read two different ways, as will also be elaborated in this paper.

Constitutional Changes and the Incremental Reductions of Collective Religious Freedom in Hungary

Abstract In the period from 1989 to the present day, Hungary twice changed its constitution and the framework of state-religion relations. In 2011/2012, its most recent constitution, the Fundamental Law was introduced, and with it new legislation on church-state relations, bringing with it an effect of de-registering a number of formerly-recognized smaller religious communities. The European Court of Human Rights in 2014 held these effects to be partially contrary to European human rights standards. I argue that, far from being an aberration, ‘the new church-state regime’ of 2012 represents the formal solidifi - cation of the already-operative mode of the 1989-2011 Hungarian church-state system. The Fundamental Law and new legislation on church-state relations merely built on an existing establishment and went on to formally legalize an already present status-based two-tier cooperationist regime between church and state, formally establishing historical churches while converting previously formally equal but de facto unequal smaller religious communities to a status of formal inequality. The positive neutrality stance of the Hungarian Constitutional Court toward state-church relations in the period 1989-2011 transformed applicable constitutional provisions of the previous 1989 Constitution guaranteeing liberal formal equality of religions and separate functioning of church and state into demands for positive neutrality, consequently providing partial legitimacy for the devolution of smaller religious communities to the inferior status of associations after 2012. Against such a background, the infl uence of the ECtHR and other international and European bodies, which are critical of the direction of state-church relations and politics in Hungary, in general appear limited, and will likely depend upon on-the-ground mobilization in resistance to - or in support of - changes or status quo.

Hungarian Constitutional Court: The Unconstitutionality of Contracts and Amending Contracts via Legislative Measures

In this decision the Constitutional Court of Hungary interpreted the Fundamental Law and ruled on several questions relating to the unconstitutionality of consumer loan contracts when loans are granted in foreign exchange (hereinafter: ‘FX loans’). The Government, as petitioner, inter alia raised the questions, if private law contracts can be declared unconstitutional, and what the constitutional requirements for the legislator to change the contents of existing contracts via legislative measures are.

From Formal Equality to Positive Neutrality to Positive Inferiority (for Some): The European Court of Human Rightss Limited Influence on Constitutional Changes and Religion in Hungary

In the period from 1989 to the present day, Hungary twice changed its constitution and the framework of state-religion relations. In 2011/2012, its most recent constitution, the Fundamental Law, was introduced, and with it new legislation on church-state relations, bringing with it an effect of de-registering a number of formerly-recognized smaller religious communities. The European Court of Human Rights in 2014 held these effects to be partially contrary to European human rights standards. I argue that, far from being an aberration, ‘the new church-state regime’ of 2012 represents the formal solidification of the already-operative mode of the 1989-2011 Hungarian church-state system. The Fundamental Law and new legislation on church-state relations merely built on an existing establishment and went on to formally legalize an already present status-based two-tier cooperationist regime between church and state, formally establishing historical churches while converting previously formally equal but de facto unequal smaller religious communities to a status of formal inequality. The positive neutrality stance of the Hungarian Constitutional Court toward state-church relations in the period 1989-2011 transformed applicable constitutional provisions of the previous 1989 Constitution guaranteeing liberal formal equality of religions and separate functioning of church and state into demands for positive neutrality, consequently providing partial legitimacy for the devolution of smaller religious communities to the inferior status of associations after 2012. Against such a background, the influence of the ECtHR and other international and European bodies critical of the direction of state-church relations and politics in Hungary in general appear limited, and will likely depend upon on-the-ground mobilization in resistance to - or in support of - changes or status quo.

Forced prostitution and human dignity in the light of a Constitutional Court decision

The author provides an overview of the Hungarian Constitutional Court’s 2011 decision on forced prostitution and its broader implications.

Az alkotmánybíráskodás elméleti alapjairól

The paper researches preliminarily the problem of norm-control versus social-control. It criticizes the logical and normative approach of Consctitutional Court’s activity, pointing out this function necessarily deals with values. The paper introduces the ideological and historical antecedents of modern institutional norm-control, touching Grecian and early American ideas. The article finally refers spread of Constitutional Courts and some problematical phenomena of Hungarian Constitutional Court's activity.

Az Emberi Jogok Európai Bírósága által előidézett változások a magyar jogrendszerben


 
 
 
 Jelen tanulmány hipotézise, hogy az emberi jogok nemzeti védelmének alapjai az Európa Tanács tagállamai esetében nagymértékben a nemzetközi jogban, illetőleg az Emberi Jogok Európai Bíróságának (a továbbiakban: EJEB vagy Bíróság) ítélkezési gyakorlatában keresendőek. Az Emberi Jogok Európai Egyezménye (a továbbiakban: EJEE vagy egyezmény) számos első generációs emberi jogot garantál, amelyet a tagállami alkotmányok lényegében azonos tartalommal építettek be jogrendszerükbe. Az egyezmény és a Bíróság kivételes jelentőségét az adja, hogy az EJEE és az EJEB joggyakorlata ugyan formálisan csak az alperes államra és csak az egyes konkrét ügyben kötelezőek, de a „precedens jellegű” ítélkezési gyakorlatra, illetőleg az európai konszenzus intézményére tekintettel a döntések hatásai jóval tovább terjednek.
 
 
 

The Constitutional Court’s Decision on the Compatibility of the Hungarian Statelessness Determination Procedure with International Law

This case note is about decision No 6/2015 of 25 February 2015 rendered by the Hungarian Constitutional Court in which the Court declared that the "lawful stay" requirement for applicants in statelessness determination procedure as prescribed by domestic law (Aliens Act) breaches Hungary’s international obligations undertaken in the 1954 Statelessness Convention. As a consequence, it is also in violation of the Fundamental Law, notably Article Q(2) calling for full harmony between Hungarian law and the undertaken international obligations, and Article B(1), which enshrines the principle of rule of law.

Preliminary Reference and the Hungarian Constitutional Court: A Context of Non-Reference

Jiri Zemanek, Professor at Charles University, Prague, asks what conclusions may be drawn from the current state of acceptance of the European Union (EU) law doctrine by the constitutional courts of the new Member States for their performance in the agenda of preliminary rulings. What can they learn from the experience of the old Member States? Should they follow the practice of the AustrianVerfassungsgerichtshof(Constitutional Court), which referred its first question in 1999, four years after its accession, and later repeated it several times? Or should they follow the most active Belgian Cour Constitutionnelle? Should Hungary follow the practice of the Italian Constitutional Court, Lithuania, France, Spain, or Germany? Having reviewed the case law of the Hungarian Constitutional Court and the scholarly analysis in search of the “missing links,” this study wishes to contribute to the diverse range of ideas concerning European “rule of law” integration and constitutional court contributions to it.

Hungarian Constitutional Court: The Limits of Criticism of Public Figures

The Constitutional Court quashed parts of a provision of the new Civil Code given that the freedom of speech would be violated if criticizing public figures to a wide extent was only allowed after verifying the existence of further public interest in addition to the constant social interest related to debating public affairs.

The Hungarian Constitutional Court’s Judgment on Hungary’s New Anti-Arbitration Rules

The Hungarian Constitutional Court’s Judgment on Hungary’s New Anti-Arbitration Rules

Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary

Summary of Decision No. 14/2013 (VI. 17) AB of the Constitutional Court of Hungary