This contribution aims to examine how the Hungarian Constitution applies in private relations through judicial activity and how the anti-discrimination legislation influences this tendency. The current codification procedure of the new civil code calls for a thorough theoretical background in order to answer how its provisions relate to the Constitution. After the general overview of the practice of courts and the Constitutional Court, the criticism of scholars developed on the issue will shed light on the weaknesses, but in spite of them, the overall success of the theory of indirect horizontal effect. The paper will also deal with the horizontal effect of a specific constitutional right, namely the right to equal treatment. I examine the fairly new legal instrument, the act on the prohibition of certain forms of discrimination, and demonstrate how this new practice influences the idea of horizontal effect in constitutional law and what implications it has on the new Civil Code afoot. I argue that the act at first sight exists independently from the requirement of horizontal application of fundamental rights, but, in fact, it implicates the necessity to reconsider in its light how the Constitution applies in private relations.
The study analyses the protection of fundamental rights in Hungary. Article 8 paragraph (1) of the Hungarian Constitution is the basis of the protection of fundamental rights. The paper shows how Art. 8 paragraph (1) elvolved and explains how the Constitutional Court formed its content during the almost two decades after the transition. The content of the rule is explained by way of an item-by-item analysis of the terms of this paragraph. The analysis shows that the fact that the protection of fundamental rights is a primary obligation is not merely a declaration, but a regulative principle of constitutional democracy.
In Hungary, the year 2012 brought a significant change in constitutional review. With modifying the competencies of the Constitutional Court, the Basic Law introduced three types of constitutional complaints and abolished actio popularis. Actio popularis was a well-functioning legal instrument in Hungarian law since the political transition of 1989–1990. Up until January 2012 anyone could request the abstract ex post facto constitutional review of a law or regulation. Unlike the former actio popularis, the essence of the new system of constitutional complaints is to have standing requirements for the complainants. Furthermore, new types of complaints are designed to defend constitutionality against personal injuries caused by ordinary courts as well. The article aims to describe actio popularis and constitutional complaints with regard to possible comparison of weaknesses and strong points. The author argues that regarding its effectiveness the new system do not yet provide a complete substitution for actio popularis.
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 Constitutional Court in foreign currency loan related cases and evaluate the argument of financial crisis in these cases compared to others.