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Journal articles on the topic 'Constitutional law – Hungary'
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1
Drinóczi, Tímea. "Hungarian Constitutional Court: The Limits of EU Law in the Hungarian Legal System." ICL Journal 11, no. 1 (May 1, 2017): 139–51. http://dx.doi.org/10.1515/icl-2017-0010.
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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.
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Oros, Paulina. "Hungary – Constitutional Renaissance in Hungary." European Public Law 3, Issue 1 (March 1, 1997): 9–16. http://dx.doi.org/10.54648/euro1997002.
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Mohay, Ágoston, and Norbert Tóth. "Decision 22/2016. (XII. 5.) AB on the Interpretation of Article E)(2) of the Fundamental Law." American Journal of International Law 111, no. 2 (April 2017): 468–75. http://dx.doi.org/10.1017/ajil.2017.32.
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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.
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Jakab, András, and Pál Sonnevend. "Continuity with Deficiencies: The New Basic Law of Hungary." European Constitutional Law Review 9, no. 1 (February 2013): 102–38. http://dx.doi.org/10.1017/s1574019612001058.
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Hungarian constitutional law – New Basic Law – Continuity with the previous democratic Constitution – Vision of the political community embedded in the new Basic Law – The level of protection of fundamental rights – Continuity and lack of foreseeability in the organisation of the state – European legal procedures against or about Hungary – The life prospects of the new Basic Law – Danger of constitutional crisis whenever the government does not hold a constitution-amending majority
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Spuller, Gábor. "Transformation of the Hungarian Constitutional Court: Tradition, Revolution, and (European) Prospects." German Law Journal 15, no. 4 (July 1, 2014): 637–92. http://dx.doi.org/10.1017/s2071832200019076.
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The new Constitution and the new Act are changing the status of the Hungarian Constitutional Court by developing the Hungarian constitutional tradition, creating better collaboration between the Constitutional Court and the ordinary judiciary, and establishing an effective instrument for the protection of individual human rights. But the pattern of the Parliament reacting to the rulings of the Constitutional Court with constitutional amendments reduces the competences of the Constitutional Court. It is to be hoped that this process is coming to an end, because otherwise the achievement of the “paradoxical revolution of law” is endangered.Due to the former extensive competences in terms of law review and its limited influence on ordinary jurisdiction, the status of the Constitutional Court caused problems. Because of the abstract nature of the procedures, the distance from the ordinary judiciary, and the power dilemma between the Constitutional Court and the Parliament respectively, the Government decided the main stream of its ruling up to 2012.Now there are some important changes, especially the introduction of a widespread constitutional complaint. The abolition of the actio popularis is justified. The relationships between the state organs seem to be better clarified and adjusted. The European clause of the 1949/1989 Constitution, which was largely retained in the Fundamental Law, contains a fundamental concept, which is that the European Union is founded on strong sovereign Member States. On the other hand, the Fundamental Law strengthens Hungary's ties to Europe by making these an integral part of that law. As the Constitutional Court had not yet really applied the European Clause, it now has the opportunity to put these two concepts into practice and make them mutually compatible by enforcing them at a high level.The discussions concerning the newest constitutional developments in Hungary mainly have their origin in the power struggle between the constituent majority of the Parliament and the Constitutional Court. It is not clear, however, how long this conflict will continue to be a matter falling solely within the national sovereignty of Hungary. Due to the parliamentary super-majority of the governing parties, the Constitutional Court is losing its power. Hungary is a unitary state; it is an open question whether there is any substitution needed to balance the power of the governing parties. Nevertheless, in spite of the substantial restrictions on reviewing the constitutionality of financial laws and the several amendments of the new Constitution, the Constitutional Court still plays a role in safeguarding democratic checks and balances. Indeed, it can have a positive impact on the European integration of Hungary. It has been granted new competences to guarantee constitutional unity within the Hungarian legal system and to complete the enforcement of individual rights. The Constitutional Court should make better use of its new granted competence to remedy any possible grievance entirely.
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Gárdos-Orosz, Fruzsina. "The reference to constitutional traditions in populist constitutionalism – The case of Hungary." Hungarian Journal of Legal Studies 61, no. 1 (July 5, 2021): 23–51. http://dx.doi.org/10.1556/2052.2021.00298.
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AbstractThe paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.
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Szabó, Zsolt. "Missed Constitutional Moments and Real Constitutional Conflicts in Hungary 1989 v. 2011." Przegląd Prawa Konstytucyjnego 70, no. 6 (2022): 477–86. http://dx.doi.org/10.15804/ppk.2022.06.35.
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This paper, examining the Hungarian example argues that that the price is high if a constitutional moment to adopt a constitution based on wide societal compromise has been missed. The constitution-making process might then be completed either by activist courts or by activist political forces. Hungary experienced two major constitutional reforms, both missing a consensual constitutional momentum. The first transformation in 1989–90, which replaced the socialist authoritarian system by democracy, was brought about by political elites, lacking democratic legitimacy, keeping the formal legal framework of the socialist constitution. The second reform in 2011 brought a formally new constitution (Fundamental Law of Hungary), initiated and adopted solely by the governing party (FIDESZ) with a constitutional majority, without consensus. The Constitutional Court both times attempted to play an active, corrective role in the aftermath of the constitution-making.
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Schanda, Balázs. "Hungary’s Christian Culture as Subject of Constitutional Protection." Studia z Prawa Wyznaniowego 23 (December 30, 2020): 55–72. http://dx.doi.org/10.31743/spw.9696.
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Since 2018 the Fundamental Law of Hungary (the Constitution) has provided for the protection of the Christian culture of Hungary as an obligation of all organs of the State. The Fundamental Law does not commit the Hungarian State to Christian religion or to Christian culture in general, but specifically to the cultural tradition of the country. Despite the recognition of the cultural role of Christianity, the Constitution remains neutral with regard to religion and the freedom of religion is recognised. The constitutional provision discussed in this study, i.e. Article R) para. 4, expressly identifies the culture of Hungary as a culture shaped by Christianity. Culture was born from faith, but faith cannot be born from a historic legacy and even less from a constitutional provision. Thus, the aim of the constitutional legislator was undoubtedly to place a stronger emphasis on the identity of the nation.
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Pap, András László. "Constitutional restoration in hybrid regimes: The case of Hungary and beyond." Intersections 8, no. 1 (April 9, 2022): 191–207. http://dx.doi.org/10.17356/ieejsp.v8i1.990.
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The essay provides an overview of a debate that has been taking place primarily on the columns of a blog symposium on the prestigious constitutional law blog Verfassungsblog on constitutional restoration in Hungary. Given that Hungary is the poster child for hybrid, illiberal regimes, the discussion transcends Hungary and gives insightful additions to the illiberalism literature, targeting an audience beyond legal scholars. The starting point of the debate pertains to the classic dilemma of legal positivism vs. natural law, and in particular whether constitutional rules of dubious democratic nature can be replaced in violation of legality, for example in an extra-parliamentary democratic process. ‘Hybrid regimes’, or ‘elective autocracies’ and the phenomenon on of ‘abusive constitutionalism’ provide the framework and specific context of the constitutional restoration debate, as it is placed in regimes institutionalize ‘hegemonic preservation’, ‘authoritarian enclaves’ and ‘bionic appointments’ hijacking the vocabulary and imagination of constitutional democracy and entrenching legal provisions which remain beyond the reach of constitutional politics. The first part provides an assessment of the Hungarian institutional and political scene. The second part first distinguishes between three dimensions of the constitutional restoration-debate: theoretical, political and procedural, and subsequently discusses two focal points of the symposium: the role of constitutions in illiberal regimes and in constitutional resurrection, and the role of international and EU law as a tool for a legal revolution.
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Vincze, Attila. "Shaping Presidential Powers in Hungary: Convention, Tradition and Informal Constitutional Amendments." Review of Central and East European Law 46, no. 3-4 (December 8, 2021): 307–20. http://dx.doi.org/10.1163/15730352-bja10057.
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Abstract There was no tradition of a republican president in Hungary before the fall of communism, and the transitory constitution of 1989 was unclear about the exact role the President should play in the constitutional system of Hungary. Some provisions even resembled those of presidential or semi-presidential systems; some ambiguities were clarified during the first two decades after the transition. Conventions, however, were established to some extent and sometimes very quickly. This period gave rise to guidelines as to how the powers of the President should be exercised. Some other powers were concretized and interpreted foremost by the Constitutional Court. These conventions and judicial interpretations formed the character of the Presidency to the extent of informal constitutional change. Some of these elements have even been incorporated into and formalized by the new Fundamental Law of Hungary. The present contribution will point out how the originally broad competencies of the President have been narrowed in the practice, and what role the Constitutional Court and political actors played in this process.
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Drinóczi, Tímea, and Agnieszka Bień-Kacała. "Illiberal Constitutionalism: The Case of Hungary and Poland." German Law Journal 20, no. 8 (December 2019): 1140–66. http://dx.doi.org/10.1017/glj.2019.83.
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AbstractThis Article argues that, as far as Hungary and Poland are concerned, the use of term “illiberal constitutionalism” is justified. It also claims that, without denying that other states could also be considered illiberal democracies, Hungary and Poland display unique and distinctive features. These features include populist politics, which lead to the relativization of the rule of law and democracy principles, and human rights protection, which captured the constitution and constitutionalism by constitutionalizing populist nationalism, constitutional identity, and created new patrionalism and clientelism. All these features are supported by the ideological indoctrination of political constitutionalism. In the course of this process, formal and informal constitutional amendments are used, and a formal sense of constitutional democracy is maintained. Overturning these illiberal democracies by constitutional and legal means, at this time, seems doubtful, if not impossible.
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Bekesi, Nóra, and Kitti Pollak. "The realisation of the constitutional principles - the right to good administration and the right to legal remedy - in Hungary." Bratislava Law Review 2, no. 1 (June 30, 2018): 46–56. http://dx.doi.org/10.46282/blr.2018.2.1.90.
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The paper aims to present the realisation of two procedural principles – the right to good administration and the right to legal remedy – regulated also in the Fundamental Law of Hungary, which entered into force on 1st January 2012. The right to legal remedy has been a constitutional principle since the change of regime (in 1989) and the right to good administration has been constitutionally named only by the Fundamental Law of Hungary. The actuality of the paper is the fact that in Hungary from the 1st of January 2018 completely new codes regulate the general public administrative procedures and the administrative justice. Based on these Acts, a new legal remedy system has been introduced regarding administrative decisions in which the judicial review procedures became – instead of the internal administrative appeal procedures – in most of the cases the firstly used legal remedy possibility regarding administrative decisions. After a short overview of the new legal remedy system which has been introduced regarding administrative decisions, the paper presents the constitutional basis of the right to good administration and the right to legal remedy. Finally, we analyse in detail the latest and most relevant decisions of the Constitutional Court of Hungary and some cases of the Curia of Hungary about the practice of the direct enforcement of the constitutional principles: the right to good administration and the right to legal remedy regarding administrative decisions.
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Gárdos-Orosz, Fruzsina. "Constitutional Justice in Credit Crises. The Hungarian Case." Südosteuropa 66, no. 1 (March 26, 2018): 94–118. http://dx.doi.org/10.1515/soeu-2018-0006.
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Abstract The economic crisis of 2008 brought about a rapid depreciation in the exchange rate of the Hungarian forint (HUF). Debtors in Hungary had borrowed money in foreign currencies—especially the Swiss franc—and now found themselves in a significantly deteriorating situation. The consequences of increased indebtedness reached all levels of society. On various grounds, consumers took out numerous civil law proceedings to challenge consumer loan agreements. Questions raised by these lawsuits were, several times, brought to Hungary’s Supreme Court, and were then taken to the legislature. The legislative acts and judicial decisions that ensued were subsequently reviewed by the Constitutional Court of Hungary. This article analyses the case law the Constitutional Court applied in this crisis situation, and brings out the lack of balancing capacity in the constitutional adjudication. Referring to the principles of basic Rule of Law, the author makes a critical assessment of the new constitutional ideas, measures and legal solutions that emerged.
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Biró, Zsófia. "Foundations of the Uncodified Historical Constitution of Hungary." Studia Iuridica 80 (September 17, 2019): 39–58. http://dx.doi.org/10.5604/01.3001.0013.4782.
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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.
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Pogány, István. "The Crisis of Democracy in East Central Europe: The New Constitutionalism in Hungary." European Public Law 19, Issue 2 (June 1, 2013): 341–67. http://dx.doi.org/10.54648/euro2013021.
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'Above all, being a democrat means not being afraid; not being afraid of people with different opinions, different mother tongues, or people from different races…not being afraid of all those imaginary fears which are only made real by our fear of them.' István Bibó, The Misery of the Small States of Eastern Europe (1946) Drawing on the work of the twentieth century Hungarian political scientist, István Bibó, this article offers a critical examination of Hungary's new Constitution, or Fundamental Law, which entered into force in January 2012. Hungary's Fundamental Law and various associated legal texts have been heavily criticized by the European Union (EU) Parliament, the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe's Venice Commission, the US State Department, major human rights NGOs and foreign as well as Hungarian scholars. This article argues that the constitutional regime that operated in Hungary from the end of communist rule until January 2012 represented a broadly satisfactory framework for the consolidation of liberal democracy, the rule of law and the protection of human and minority rights. By contrast, the Fundamental Law, related legal instruments and various policies of the present government have diluted or threatened essential democratic freedoms and have resulted in the removal of many of the checks and balances that previously operated within the Hungarian constitutional system. These regressive measures suggest that elements of what István Bibó described as the 'deformed' political culture of pre-World War II Hungary have reasserted themselves.
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Halmai, Gábor. "Rights Revolution and Counter-Revolution: Democratic Backsliding and Human Rights in Hungary." Law & Ethics of Human Rights 14, no. 1 (May 26, 2020): 97–123. http://dx.doi.org/10.1515/lehr-2020-2013.
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AbstractThe Article discusses the democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country, a Member State of the European Union. The main argument of the Article is that paradoxically the non-legitimate 1989 constitution provided full-fledged protection of fundamental rights, while the procedurally legitimate 2011 constitution-making resulted in curtailment of rights and their constitutional guarantees. The Article first describes the democratic transition that occurred in 1989–1990 as a rights revolution and the results of the 2011 “illiberal” constitution, called Fundamental Law, as counter-revolution. The second part of the Article illustrates the constitutional and statutory regulation of human rights protection after this “rule of law revolution,” and the activist jurisprudence of the first Constitutional Court using the concept of an “invisible constitution” to protect human rights. The third part discusses the rights provisions of the new Fundamental Law and several statutes dismantling the guarantees of human rights, with special attention to the decreased possibilities of state institutions, such as the Constitutional Court, the ordinary judiciary and ombudsmen, as well as civil society organizations to effectively protect fundamental rights. The fourth part assesses the efforts of European institutions to force the Hungarian government to comply with the human rights standards laid down in the European Convention of Human Rights and in the Treaty of the European Union. The Article concludes that neither internal nor external challenges could prevent the development of a new authoritarian regime with no guaranteed human rights.
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Drinóczi, Tímea. "Constitutional Identity in Europe: The Identity of the Constitution. A Regional Approach." German Law Journal 21, no. 2 (February 2020): 105–30. http://dx.doi.org/10.1017/glj.2020.1.
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AbstractThe issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.
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Tóth, Gábor Attila. "Legal preconditions for majoritarian democracy: The case of Hungary." Zeitschrift für Politik 68, no. 3 (2021): 307–22. http://dx.doi.org/10.5771/0044-3360-2021-3-307.
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The Constitution of Hungary promulgated in 2011 and officially called the Fundamental law thoroughly altered the Hungarian constitutional system. Scholars encounter difficulties when attempting to label the new system. While some typologies maintain that despite its illiberalism and populism the new system meets the formal criteria of legality and democracy, others insist that it represents an abuse of democratic constitutionalism. In what follows, I put two rival conceptions of democracy into the main focus to better understand the nature of the Hungarian constitutional system and the competing scholarly positions. First, I briefly introduce the contrast between the majoritarian and what I call the complex conception of democracy. My aim is to demonstrate that even if one subscribes to a majoritarian conception of democracy, certain legal and constitutional preconditions must be fulfilled. In the following sections, I examine the case of Hungary within this theoretical framework. The Hungarian constitutional system presents itself as a winner-takes-all majoritarian democracy. Nevertheless, an analysis of the legal preconditions of democracy - constitutional text, electoral system, legal institutions, fundamental rights, and the rule of law - can demonstrate that in this system, legal mechanisms do not serve to govern the formation of a legitimate majority rule. They create instead an autocratic system, the key attribute of which is the pretence of majoritarian democracy.
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Kovács, Kriszta, and Gábor Attila Tóth. "Hungary's Constitutional Transformation." European Constitutional Law Review 7, no. 2 (June 2011): 183–203. http://dx.doi.org/10.1017/s1574019611200038.
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Hungary – Democratic state structure – Two-thirds parliamentary majority – First flurry of constitutional amendments of 2010 – Checks and balances – Media – Ex post facto legislation – Hungarian Constitutional Court – Judicial review – Wholesale constitutional review and Basic Law of 2011
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Badó, Attila, and Péter Mezei. "Comparativism and the New Hungarian Fundamental Law – Taking Raz Seriously." International and Comparative Law Review 17, no. 1 (June 1, 2017): 109–27. http://dx.doi.org/10.2478/iclr-2018-0004.
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SummaryComparative law plays a role both at the time of the creation and interpretation of constitutions. Hungary is not an exception in this respect. The comparative analysis of Hungarian constitutional law is an ordinary one both in terms of quantity and quality. The new Fundamental Law of 2011 as well as the “two-third majority statutes”, however, led to an international scandal. Several studies have suggested that the method of acceptance of the new Fundamental Law and its content are unique in several aspects. The reviews of the Fundamental Law by scholars and international organizations show, however, contradictory opinions. We argue that such opposition is mainly due to differing conceptions of the ideal democratic society. Proponents of the Fundamental Law asserting national sovereignty and the supremacy of legislation accept any constitutional regulation that is backed by the necessary amount of votes. On the other hand, opponents have disliked everything that has happened in Hungarian constitutional law since 2010 on the premises of global constitutional values, the lack of consensus, self-restraint or elegance. The present paper aims to evaluate the Fundamental Law of Hungary through the lens of Joseph Raz’s seven constitutional criteria that might serve as a structured approach to analysis that is acceptable to those who express supportive as well as critical opinions on the Fundamental Law. Indeed, based upon Raz’s criteria we have come to the conclusion that the new constitutional regime does not meet one single criterion that is connected to its acceptance. As the Fundamental Law was accepted rapidly, without any endorsement by the opposing parties or any referendum, it cannot be demonstrated that it mediates general values accepted by the whole society.
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Balogh, Lídia, and Tímea Drinóczi. "The missing arc of a backlash? Thirty years of constitutional debate on ‘women’s equality’ in Hungary." Intersections 8, no. 4 (2022): 112–31. http://dx.doi.org/10.17356/ieejsp.v8i4.969.
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The argumentation in this paper is based on the proposition that constitutions play a key role in defining the approach to women’s social status, not just by determining ordinary legislation and public policy, but also through constitutional review. The focus is on Hungary, a country that is not famous in Europe for a high level of equality between men and women, surrounded by a (liberal) international political discourse which asserts a backlash and claims that women’s equal rights are being curtailed even more during the era of Orbán’s illiberal government. Against this discursive backdrop, the paper highlights a counterintuitive phenomenon: since the democratic transition (1989–1990) all the key constitutional disputes related to equality between the sexes have been initiated by men claiming instances of discrimination against men, as if women were too privileged in Hungary. A relevant contextual feature is that while equal legal standing for the sexes is guaranteed (due partly to the heritage of state socialism, then to efforts related to EU integration), affirmative measures for women are also constitutionally ensured. The Constitutional Court has deployed surprisingly poor-quality reasoning in these disputes, suggesting that it never considered equality between the sexes to be an important issue. This leads us to claim that certain persistent features have characterized this field since the 1990s, not the dynamics of reversal since the 2010s. With our empirical findings, we aim to contribute to the academic discourse in a way that challenges the backlash narrative regarding developments in Hungary from a specific perspective.
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Drinóczi, Tímea. "The Unfolding Illiberalism in Hungary." Review of Central and East European Law 47, no. 3-4 (December 22, 2022): 352–80. http://dx.doi.org/10.1163/15730352-bja10071.
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Abstract The emerging literature on illiberalisms offers a framework for detecting whether or not a special Hungarian illiberalism has been unfolding. Over the last 12 years, Hungary’s former liberal constitutionalist nature has been changed to illiberal constitutionalism. This transformation of the constitutional system recently culminated with the fourth consecutive electoral victory of Viktor Orbán in April 2022. Nevertheless, the possible ideological nature of Orbán’s regime has been understudied so far. Drawing on some newly published literature on illiberalisms, I claim that changes in electoral law (2014), the revised approach to the relationship between EU law and domestic law (2016 and 2021), and identity rights (2013, 2019–2020), along with the preceding political narratives, can be viewed as seeds from which a special, state-driven illiberalism has been growing in Hungary. If it is so, it could be concluded that Hungarian illiberalism is based on and the result of two factors: i) the translation of illiberal speech into the language of the law, and ii) the creation of intertwined identities for the constitution, the state, and citizens, which are based on (ethno)nationalism, sovereigntism, traditionalism and heteronormativity against mainly EU obligations and Western values.
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Grabowski, Radosław, and Ivan Halász. "Ewolucja węgierskiego modelu zarządzania sądownictwem i samorządu sędziowskiego na Węgrzech w latach 1989–2019." Przegląd Prawa i Administracji 119 (January 20, 2020): 171–80. http://dx.doi.org/10.19195/0137-1134.119.17.
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THE EVOLUTION OF THE HUNGARIAN MODEL OF JUDICIAL MANAGEMENT AND JUDICIAL SELF-GOVERNMENT IN HUNGARY IN THE YEARS 1989–2019The Hungarian constitutional system after 1989 was initially subject to evolutionary changes. The previously binding constitution was only amended, although in most countries of the region the new constitutions created new system concepts. This also concerned the organisation of the judiciary, which in Hungary for a long time remained under the influence of the doctrine formed in the time of the socialist state. Significant corrections in this respect did not take place until 1997, but the solutions and institutions created at that time — including judicial self-government — survived for only slightly more than a decade. The political parties that came to power in 2010 adopted a new Basic Law and made far-reaching transformations in the field of symbolism, constitutional principles and the system of constitutional organs. Both the scope of the changes and the way they were carried out provoked resistance from various environments, including judges, whose influence on the organisation of the judiciary and its functioning was significantly reduced. The dispute that occurred was the subject of debate throughout Europe, and the institutions of the Council of Europe and the European Union were involved in resolving it.
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Halmai, Gábor. "The reform of constitutional law in Hungary after the transition." Legal Studies 18, no. 2 (June 1998): 188–96. http://dx.doi.org/10.1111/j.1748-121x.1998.tb00012.x.
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In Hungary, a comprehensive amendment to the 1949 Constitution took effect on 23 October 1989. According to the new preamble of the considerably amended Constitution, the revision was needed ‘in order to promote the peaceful political transition into the rule of law realizing the multiparty system, parliamentary democracy and social market economy’. This amendment changed not only the state organisation, but also the regulation of human rights.The intention of distancing itself from the historical period of the past 40 years is expressed in para 1 of the amended Constitution, which proclaims that Hungary is a republic. With this, Hungarian constitution-making went back to a number of legal institutions incorporated in Act I of 1946 which is on the state form of Hungary adopted by the National Assembly, formed after the frst free elections after the Second World War.
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Patyi, András. "Issues of fundamental procedural rights and procedural constitutionality in the Fundamental Law." Institutiones Administrationis 2, no. 1 (July 22, 2022): 6–23. http://dx.doi.org/10.54201/iajas.v2i1.27.
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The Fundamental Law of Hungary entered into force on 1 January 2012, introducing several new constitutional rights, one of it is the right to fair administrative procedure. This paper aims to present a comprehensive analysis of that new constitutional right. The first part of the study is devoted to explain the legal background and the constitutional tradition behind the right to fair procedure (by authorities). We should note that Constitutional Court’s decisions had already specifically affected legal regulations of a procedural nature before the declaration of the fundamental right to fair procedure. These decisions – examined in the paper – have been pivotal for Hungary’s legal system and procedural law. Secondly, the current practice of the realization of the right to fair administrative procedure is presented. Through the Constitutional Court’s practice, we also describe the partial rights/authorizations of this fundamental right. Finally, the right to legal remedy and to fair judicial procedure are analysed in detail.
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Horváth, Gergely. "The renewed constitutional level of environmental law in Hungary." Acta Juridica Hungarica 56, no. 4 (December 2015): 302–16. http://dx.doi.org/10.1556/026.2015.56.4.5.
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Gárdos-Orosz, Fruzsina. "Constitutional rights: Horizontal effect and antidiscrimination law in Hungary." Acta Juridica Hungarica 49, no. 1 (March 2008): 111–36. http://dx.doi.org/10.1556/ajur.49.2008.1.4.
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Gardos-Orosz, Fruzsina. "Two Influential Concepts: Socialist Legality and Constitutional Identity and Their Impact on the Independence of the Judiciary." German Law Journal 22, no. 7 (October 2021): 1327–43. http://dx.doi.org/10.1017/glj.2021.70.
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AbstractIn this Article, I suggest considering linkages of a theoretical, and continuities of a sociological nature between on the one hand, the concept and the practical use of socialist legality in Socialist Hungary—with particular regard to the period following the judicial reform of 1954—and on the other hand, the concept of constitutional identity as it has developed in the Fundamental Law in Hungary, with particular regard to the period since the 2011 judicial reform. The Article highlights surprising similarities in the politically determined legislative intention in these two periods to form embracing, quasi legal concepts, which in themselves seem to differ fundamentally, although the similarities in their nature and in the specific constitutional practice are attention-grabbing. The interpretation of the role of state institutions, and especially the judicial role, lead one to think that despite the explicit rejection of the Socialist era in Article U) of the Fundamental Law in Hungary, the new constitutional regime has familiar attitudes to the understanding of the rule of law and the role of the judiciary in promoting the enforcement of the new, supra legal concepts of a transformative nature, which, however, are filled in with the ruling political ideology, whether it be socialist legality or national constitutional identity.
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Váradi, Ágnes. "Access to constitutional complaint procedures: A real chance?" Hungarian Journal of Legal Studies 61, no. 4 (February 14, 2022): 372–85. http://dx.doi.org/10.1556/2052.2021.00307.
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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.
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Éva Földes, Mária. "The Role of Constitutional Courts in Promoting Healthcare Equity: Lessons from Hungary." Constitutional Review 6, no. 2 (December 30, 2020): 282. http://dx.doi.org/10.31078/consrev624.
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This paper explores whether constitutional litigation contributes to sustaining the equity element of the right to health. Equity entails a fair distribution of the burden of healthcare financing across the different socio-economic groups of the population. A shift towards uncontrolled private healthcare provision and financing raises equity challenges by disproportionately benefitting those who are able to afford such services. The extent to which equity is enforced is an indicator of the strength of the right to health. However, do domestic constitutional courts second-guess, based on equity, policy decisions that impact on healthcare financing? Is it the task of constitutional courts to scrutinize such policy decisions? Under what conditions are courts more likely to do so? The paper addresses these questions by focusing on the case of Hungary, where the right to health has been present in the Fundamental Law adopted in 2010 and the Constitutions preceding it. While the Hungarian Constitutional Court has been traditionally cautious to review policy decisions pertaining to healthcare financing, the system has been struggling with equity issues and successive government coalitions have had limited success in tackling these. The paper discusses the role of constitutional litigation in addressing such equity concerns. In doing so, it contributes to the discussion on the role of domestic constitutional courts in the protection of social and economic rights.
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Castillo-Ortiz, Pablo. "The Illiberal Abuse of Constitutional Courts in Europe." European Constitutional Law Review 15, no. 1 (March 2019): 48–72. http://dx.doi.org/10.1017/s1574019619000026.
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Legal constitutionalism – Political constitutionalism – Emergence of illiberal constitutionalism as a tertium genus – Examination of constitutional courts under three illiberal governments: Poland, Hungary, and Turkey – Illiberal governments’ strategies to seize control of constitutional courts – Illiberal governments’ aim to secure leverage over constitutional judges and restrict the powers of review of the court – Constitutional courts under illiberal rule invert the traditional functions that were assigned to them under the original Kelsenian approach – Instead of a check on power, illiberal constitutional courts become a device to circumvent constitutional constraints and concentrate power in the hands of the ruling actors.
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Mészáros, Gábor. "Carl Schmitt in Hungary: Constitutional Crisis in the Shadow of Covid-19." Review of Central and East European Law 46, no. 1 (February 24, 2021): 69–90. http://dx.doi.org/10.1163/15730352-bja10024.
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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.
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Czine, Agnes. "The main elements of the rule of law in the practice of the constitutional Court of Hungary." Zbornik radova Pravnog fakulteta, Novi Sad 56, no. 1 (2022): 305–16. http://dx.doi.org/10.5937/zrpfns56-31364.
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The rule of law is one of the most complex concepts in constitutional law, some principles of which permeate the entire functioning of the state, the relationship between the individual and the state. It is no coincidence that there have been many attempts to define the concept of the rule of law in the literature, legislation and international law as well, but we cannot speak of a uniform, universally accepted concept. The rule of law is strongly linked to the historical development of a given country. This article presents the problems encountered by the Constitutional Court of Hungary in its judgment and how it defined certain principles of the rule of law in practice. These decisions of the Constitutional Court affect the functioning of the state and legislation and are historically linked to the development after the change of regime in Hungary. There are different opinions in the literature that the Court used the concept of the rule of law formally, or as a subsidiary, or as an abstract, mysterious concept in different decisions. According to the position of the present article, no matter how the Constitutional Court approaches the concept, it is certain that the merits of the elaboration of the elements of this important constitutional institution and its application to Hungarian historical conditions are indisputable. In interpreting the concept of the rule of law, the Constitutional Court made it clear that the principle of the rule of law is not an auxiliary, secondary rule, and not merely a declaration, but an independent constitutional norm, the violation of which may in itself justify the unconstitutionality of a legal act.
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Varju, Marton, and Flora Fazekas. "The reception of European Union law in Hungary: The Constitutional Court and the Hungarian judiciary." Common Market Law Review 48, Issue 6 (December 1, 2011): 1945–84. http://dx.doi.org/10.54648/cola2011075.
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The reception of European Union law in Hungary has produced mixed results. The Constitutional Court, entangled in a jurisprudence which focuses primarily on the question whether it has competence under national law to address issues of EU law, has refrained from formulating a comprehensive account of the constitutional impact of membership in the European Union. The constitutional limits of membership remain obscure leaving the parameters of constitutional control following the principles of democracy, the rule of law and national sovereignty unspecified. The approach of the Hungarian judiciary, under the coordination of the Supreme Court, has been more ambitious. The basic tenets of the judicial application of European Union law have been secured in the jurisprudence, and Hungarian courts regard themselves equipped to interpret and apply EU law. There are indications, however, that the jurisprudence incorporated the relevant principles without sufficient care for legal detail and without regard to the qualifications and limitations of those principles in EU law. Instances of material misdirection in EU law also shed certain doubts over the performance of Hungarian courts.
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Albi, Anneli. "Supremacy of EC Law in the New Member States Bringing parliaments into the Equation of ‘Co-operative Constitutionalism’." European Constitutional Law Review 3, no. 1 (February 2007): 25–67. http://dx.doi.org/10.1017/s1574019607000259.
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Minimal constitutional amendment at accession forced constitutional courts in new member states to make great efforts to avoid conflicts with EC and EU law – The importance of expanding the equation of ‘co-operative constitutionalism’ beyond judicial actors, by involving political institutions – The case of constitutional amendment in Estonia and Latvia – The concern over fundamental rights protection versus EC market regulation in Hungary, Estonia and the Czech Republic – Co-operative constitutionalism beyond judicial dialogues.
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Szente, Zoltán. "Constitutional Changes in Populist Times." Review of Central and East European Law 47, no. 1 (March 8, 2022): 12–36. http://dx.doi.org/10.1163/15730352-47010001.
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Abstract The article examines the impacts of populist government in Hungary on constitutional law since 2010. The criterion of the analysis is whether the comprehensive and radical changes that took place during this time have been characterized by the distinctive traits, ambitions and values that the scholarship attributes to populism and ‘populist constitutionalism’, above all anti-elitism, anti-institutionalism, anti-pluralism, the emphasis on popular sovereignty and direct democracy, and an instrumental conception of law. For this purpose, it examines the major changes in the constitutional rules and practice of sovereignty issues, the system of separation of powers, and fundamental rights. The article consists of four parts. In the first chapter, sovereignty issues are discussed including the changing approach of constituent power, constitutional identity, and the interpretation of sovereignty through an analysis of the 2011 Fundamental Law and its eight amendments. The study then reviews the changes in the system of separation of powers, that is, the transformation of the legal status and operational practices of the most important public law institutions. The next chapter provides a qualitative analysis of the situation of fundamental rights, in particular the trends in the renewed regulation of constitutional liberties and political freedoms. In addition, this part gives an assessment of the current state of institutional protection of constitutional rights. Finally, the last chapter seeks to answer the question of how the cumulative effects of these changes can be assessed; whether Hungary follows a new, specific path of constitutional development, or the constitutional changes can be interpreted within the framework of the constitutional democracy formed after the 1989/90 regime change.
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Halmai, Gábor. "Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law." Review of Central and East European Law 43, no. 1 (February 28, 2018): 23–42. http://dx.doi.org/10.1163/15730352-04301002.
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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 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 calls for an end to constitutional pluralism in the eu altogether.
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Képessy, Imre. "The Consolidation of Hungarian Legal Practice with the Austrian Norms in 1861." Studia Iuridica 80 (September 17, 2019): 155–68. http://dx.doi.org/10.5604/01.3001.0013.4797.
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A few months before the suppression of the Hungarian Revolution in August 1849, Emperor Franz Joseph issued the Constitution of Olmütz, which suspended the Hungarian constitutional order. After 1850, the Viennese Government aimed to unify the legal system in the whole empire, and as part of the process, many Austrian legal norms were imposed by royal decrees upon the Hungarian territories. This led to fundamental changes in the country’s legal system (the customary law as “law in action” took precedence up until 1848), even though it happened unconstitutionally. The worsening state of affairs and the defeat in the Austro-Sardinian War led the Emperor to promulgate a new constitution which became known as the October Diploma in 1860. Accordingly, Hungary regained its former constitutional status, but Franz Joseph ordered the newly reinstated chief justice to assemble a council that should debate over the most pressing issues regarding the administration of justice. There, the most influential lawyers proposed that the Hungarian laws shall be restored – albeit with several compromises. Most members agreed that an absolute and immediate repeal of every Austrian legal norm would certainly violate the rights of the citizens. Therefore, even though this committee did not accept the validity of these laws, the majority of its members argued that some of them must remain in effect until the Parliament will reconvene. Consequently, the Austrian legal norms as “law in books” deeply influenced the “law in action” in Hungary for the years to come.
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Hojnyák, Dávid. "Current tendencies of the development of the right to a healthy environment in Hungary in the light of the practice of the Constitutional Court in recent years." Journal of Agricultural and Environmental Law = Agrár- és Környezetjog 16, no. 31 (December 8, 2021): 39–54. http://dx.doi.org/10.21029/jael.2021.31.39.
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In recent years, there have been several Constitutional Court decisions dealing with the right to a healthy environment and its interpretation. In these decisions, the Constitutional Court has further developed and partially renewed the content of the right to a healthy environment and its interpretation, which was necessary and justified following the adoption of the Fundamental Law of Hungary, and especially following its fourth amendment. Accordingly, the present study reviews the recent changes in the content and interpretation of the right to a healthy environment and the new tendencies that can be observed in this context by analysing the practice of the Constitutional Court of Hungary.
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Bugarič, Bojan. "Central Europe’s descent into autocracy: A constitutional analysis of authoritarian populism." International Journal of Constitutional Law 17, no. 2 (April 2019): 597–616. http://dx.doi.org/10.1093/icon/moz032.
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Abstract The article offers an analysis of the particular type of populism that has evolved in Eastern and Central Europe, most notably in Hungary and Poland. The new populism in ECE differs from other populisms because it combines the elements of populism, ethnonationalism, and authoritarianism. Adhering to a similar script, which consists of sustained attacks on rule of law institutions, civil rights and freedoms, the media, and electoral rules, both populist governments in a relatively short period of time dismantled almost all the key cornerstones of democracy in Hungary and Poland. The current surge of populism in ECE demonstrates that constitutional democracy is in great danger when its core principles no longer enjoy wide democratic support. Paradoxically, constitutional democracy can play its “counter-majoritarian” role only when a majority of the people believe that it is the only game in town. Ultimately, democratic political parties and social movements with credible political ideas and programs offer the best hope for the survival of constitutional democracy. The role of law and constitutional checks and balances is less of an essential bulwark against democratic backsliding than is traditionally presumed in the legal literature.
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Kelemen, Katalin. "The New Hungarian Constitution: Legal Critiques from Europe." Review of Central and East European Law 42, no. 1 (July 11, 2017): 1–49. http://dx.doi.org/10.1163/15730352-04201001.
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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.
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Mészáros, Ádám. "Constitutional Questions of the Situational Legitimate Defence." Acta Universitatis Sapientiae Legal Studies 8, no. 1 (June 20, 2019): 65–74. http://dx.doi.org/10.47745/ausleg.2019.8.1.04.
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This study examines the problems surrounding legitimate defence as an institution of criminal law, as it is regulated by the Hungarian legislator, in an international and comparative law perspective. It further examines the compatibility of the current regulation with the requirements of the Fundamental Law of Hungary as well as the practice of the Constitutional Court. The author concludes that the pertinent text of Section 22, para. (2) of the Hungarian Criminal Code seems to be unconstitutional, rendering the wide scope of legitimate defence in comparison to the requirements of proportionality as objectionable.
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Kovács, Kriszta. "Constitutional or ethnocultural? National identity as a European legal concept." Intersections 8, no. 1 (April 9, 2022): 170–90. http://dx.doi.org/10.17356/ieejsp.v8i1.713.
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Identity has long been a contested concept in the social sciences. In contrast, legal scholars have come late to the analytical discussion about the concept. It was only in the late 2000s that the concepts of national and constitutional identity became part of the European legal discourse. Today, national identity is a legal concept in EU law. Article 4(2) of the Treaty on European Union obliges the EU to respect the national identities of Member States. A literal understanding of this provision suggests that any domestic interpretation would be consistent with EU law. This paper challenges this view. It differentiates between national and constitutional identity. The former refers to identity that can be connected either to a community’s ethnocultural characteristics or to its political institutions and foundational constitutional values. The latter is often called constitutional identity. Yet, this article defines the term constitutional identity differently by concentrating on identity attached to a democratic constitution. Thereby, it offers a novel, constitutionalist approach. The article argues that the concept of national identity in EU law is a constitutionalist one and demonstrates, using the example of Hungary, how an ethnocultural national identity runs counter to this constitutionalist concept and how a new constitutional identity may be developed. The implication of having a constitutional identity that respects universal constitutional principles is that such a constitutional identity would be more compatible with values at the European level.
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Smuk, Peter. "European Constitutions as sources of Party Law and the Fundamental Law of Hungary = Las Constituciones europeas como fuentes de la Ley de Partidos y la Ley Fundamental de Hungría." Revista Jurídica de la Universidad de León, no. 4 (December 20, 2017): 51. http://dx.doi.org/10.18002/rjule.v0i4.5286.
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<p>La regulación de los partidos políticos parece un tema ligeramente descuidado en la literatura constitucional húngara. Así, a pesar de que hay un gran número de cuestiones que deben analizarse y entenderse en los ámbitos de la democracia representativa, en el sistema electoral y en la financiación de los partidos, derivadas de las particularidades del cambio del régimen político, y que hace necesaria la interpretación de nuestro sistema político actual. Un análisis sustantivo de estas cuestiones en términos de derecho constitucional (y desde las ciencias políticas) podría contribuir a una mejor comprensión de la democracia representativa húngara, el estado constitucional, así como la relación entre la sociedad civil y el Estado. En este documento voy a ofrecer una visión general de las normas constitucionales relativas a los partidos políticos europeos y comparar la redacción de la Ley Fundamental de Hungría con las normas constitucionales creadas en 1989.</p><p>The regulation of political parties seems a slightly neglected topic in the Hungarian constitutional literature. It is so despite the fact that there are a large number of questions to be analysed and understood in the fields of representative democracy, election system and party financing arising from the particularities of the change of the political regime, the recent constitution-making or the necessary interpretation of our current political system. A substantive analysis of these questions in terms of constitutional law (and political science) could contribute to a better understanding of the Hungarian representative democracy, constitutional state as well as the relationship between civil society and the state. In this paper I will provide a rough overview of constitutional rules relating to European political parties and compare the wording of the Fundamental Law of Hungary with the constitutional rules created in 1989.</p><div> </div>
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KELEMEN, R. Daniel, and Laurent PECH. "The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland." Cambridge Yearbook of European Legal Studies 21 (November 4, 2019): 59–74. http://dx.doi.org/10.1017/cel.2019.11.
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AbstractThis article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.
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Szente, Zoltán. "The Twilight of Parliament – Parliamentary Law and Practice in Hungary in Populist Times." International Journal of Parliamentary Studies 1, no. 1 (April 26, 2021): 127–45. http://dx.doi.org/10.1163/26668912-bja10001.
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Abstract This study is based on the assumption that if there really has been a transition to authoritarian rule in Hungary since 2010, this should also have had a significant impact on Parliament. The article reviews changes in parliamentary law and practice, examining whether they have indeed aimed at concentrating power and instrumentalizing the legislature. In doing so, it analyses the key organizational and operational reforms of the National Assembly. The final conclusion of the study is that 2010 was an important milestone in the very recent history of Parliament, and it evaluates some of the subsequent changes as unconstitutional, while it also argues that some new trends in parliamentary law and practice have destroyed the quality of the activities of the Parliament. As a consequence, the Parliament only formally performs its constitutional functions, and plays a marginal role in the constitutional system, having a number of institutional and operational features that are incompatible with the standards of modern constitutional democracies.
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Körtvélyesi, Zsolt, and Balázs Majtényi. "Game of Values: The Threat of Exclusive Constitutional Identity, the EU and Hungary." German Law Journal 18, no. 7 (December 1, 2017): 1721–44. http://dx.doi.org/10.1017/s2071832200022513.
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There is an increasing, or increasingly visible, societal trend in the EU and beyond—often followed by constitutional changes—that challenges inclusive constitutional values. The discourses underlying these changes emphasize the inviolability of national identity and redefine it with a strong reliance on exclusive constitutional values. This Article asserts that exclusive constitutional values—that are defined as values that question the moral equality of some members of the community—necessarily shrink the room for inclusive values, and a critical mass of exclusive values can lead to a hallowing out of a democratic order, both on the national and on the supranational level. The Article presents Hungary as a case where the populist-exclusivist elements of political rhetoric—that are also present elsewhere—became part of constitutional law and have transformed the political system. The case study shows how the redefinition of Member States' constitutional identities, along recent societal trends and exclusive constitutional values, could clash with the inclusive values of the European Union and relegate European institutions to the position of “the Other,” thereby endangering constitutional democracy. In particular, the Article shows how the rule praising and recognizing diverse Member State constitutional identities can work to embolden the already strong trend to challenge inclusive constitutional values.
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Sidharta, Noor, Sudarsono Sudarsono, I. Nyoman Nurjaya, and Bambang Sugiri. "Judicial Preview on the Bill on International Treaty Ratification." Constitutional Review 3, no. 1 (August 2, 2017): 24. http://dx.doi.org/10.31078/consrev312.
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This research is aimed to find and introduce a new idea on the state administration, which has implications on the international treaty ratification procedure followed by Indonesia and additional authorizations of the Constitutional Court of the Republic of Indonesia. The judicial preview in this research is an international treaty examination procedure by the Constitutional Court before an international treaty is transformed into a law, i.e. such international treaty is a Bill. The judicial preview shall have different terms in each country, such as Review ex ante, abstract review, judicial review. This procedure is applied when an international treaty has not been validated as a country’s national law. The benefits of a judicial preview shall be a solution to connect an ambiguity between the state administrative law and international law. The judicial preview is also the inter-state institutions real check and balance on the international treaty. Out of benchmarking results of four countries following the monism doctrine, i.e. Russia, Germany, France, and Italty and two countries following the dualism doctrine, i.e. Hungary and Ecuador, several additional authorizations of the Constitutional Court shall be summarized, i.e. via the Amendment of 1945 Constitution of the Republic of Indonesia and/or regulations via laws. If both manners are not possible, the Constitutional Court may apply the judicial preview as a state administrative practice. An international treaty draft, which has passed through the judicial preview, may not be submitted to the Constitutional Court to be performed a judicial review, unless 5 (five) year-period has passed since the bill is enacted as a law.
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Wendel, Mattias. "Lisbon Before the Courts: Comparative Perspectives." European Constitutional Law Review 7, no. 1 (February 2011): 96–137. http://dx.doi.org/10.1017/s1574019611100061.
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Lisbon decisions of the constitutional courts in Austria, the Czech Republic, France, Germany, Hungary, Latvia and Poland from a comparative perspective – Democracy, sovereignty and identity – Permeability of national and supranational law – Ratification of the Lisbon Treaty and its constitutional foundations – Procedural background and legal outcome of the Lisbon decisions – Differences of institutional self-conception – Parliamentary responsibility for integration – Prior parliamentary assent to the future application of ‘dynamic treaty provisions’ – Different conceptions of national and multi-levelled democracy – Popular vote – Constitutional limits to European integration – Limits indicating the necessity of an amendment and limits protecting the inalienable substantial core of a constitutional order – German Bundesverfassungsgericht only court in Europe spelling out an eternity clause in a detailed, catalogue style manner – Judicial restraint – Ultra vires and identity review – Article 4.2 TEU as an integration clause of EU law and not a derogation clause – Comparative dialectics
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Hoffmann, Tamás, and Fruzsina Gárdos-Orosz. "Populism and Law in Hungary – Introduction to the Special Issue." Review of Central and East European Law 47, no. 1 (March 8, 2022): 1–11. http://dx.doi.org/10.1163/15730352-bja10058.
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Abstract Populism is a nebulous concept that has almost as many definitions as scholars engaging with the concept that has a paradoxical relationship with law. On the one hand, populist politicians generally oppose the liberal ideal of separating politics and law, i.e. accepting that legal rules should limit political power, claiming that it would impede the expression of the popular will, yet they use legal regulation as their most important instrument to implement their policies. The chameleonic nature of populism and its instrumentalist approach to law presents a special challenge for lawyers that try to assess its impact on the domestic legal system. Populist legislation, after all, is seemingly indistinguishable from legislation adopted under non-populist regimes as populist regimes always claim to strictly adhere to formal procedural requirements and often justify the dramatic overhaul of previous rules invoking foreign examples. Hungary is a perfect litmus test for the examination of legal changes under populist leaders, because in 2010 the right-wing Fidesz-Kdnp party coalition won two-thirds majority in Parliament – a self-described “revolution in the voting booths” -, which gave it the power to completely overhaul the Hungarian legal system, even changing the constitution. In the past 10 years, virtually every significant branch of Hungarian law was recodified, adopting inter alia new criminal, civil, administrative and labor codes. The authors of this special issue attempted to analyze some of the most pertinent changes, in the field of constitutional law, adjudication, tax law, labor law, criminal regulation and asylum legislation.