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Literature Bánkuti , Miklós , Halmai , Gábor and Scheppele , Kim Lane ‘ Between Revolution and Constitution: The Roles of the Hungarian Constitutional Court ’ in Tóth

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The present study undertakes the review of one of the essential authorities of the Hungarian Constitutional Court: the issue of abstract subsequent norm control, which is currently amongst the most significant questions. The possibility of the constitutional review of the Supreme Court's directives on unifying the case law is subject to debate in legal literature and in the intercourse between the two organs as well. This study intends to elicit the nature of the problem through the elaboration of relating regulation and by utilizing certain Constitutional Court decisions concerning the subject. It will arrive at the conclusion that the present regulation also gives scope to the Constitutional Court review of directives on unifying the case law. The paper gives a survend evaluation of the solutions involved in the draft of the new Constitutional Court Act too.

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Constitutional adjudication does not have a particularly rich history in Romania. It was only the 1991 Constitution that provided a Constitutional Court as a specialized forum to hear claims of unconstitutionality. The first Romanian constitution

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which follow from the rule of law have been habitually overridden or ignored by the government acting in parliament. 2 The government’s reaction to the Constitutional Court’s attempts to continue the

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and apex courts, as well as the close observation of developments in foreign constitutional and legal systems, scholarship and international trends. The Constitutional Court of Hungary has been an active participant in this dialogue since the Court

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The Constitution comprises general clauses and notions whose meaning it does not specify in detail-and this meaning can be established by Constitutional Court. In the Polish doctrine of Constitutional law, opinions about the legal status of the Preamble are diversified. The dominant view in the contemporary doctrine of Constitutional law is that the Preamble has a normative character. The Constitutional Court has many times drawn upon the provisions of the Preamble in its rulings. The provisions of the Preamble dealing with Constitutional principles and values form a “bridge” between natural law and positivist law, which may be conducive to a fuller protection of human rights in the state, and consequently a better operation of Constitutional democracy. But the higher the frequency of principle- and value-invoking notions in the Constitutional text (usually in the Preamble), the greater and the more real is the authority of those who interpret these notions-and impart sense to them-in conditions of a particular constitutional dispute.

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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.

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This study investigates the relationship between dimensions of judicial independence and judicial review in constitutional courts Central and Eastern Europe and the Former Soviet Union. In part a modified replication of prior works examining the issue, the study uses newly collected data from a panel of ten countries. It examines the relationship of judicial review with: (1) judicial independence (using both measures employed by the prior works, corrected versions of those measures, and measures original to this study); (2) political and social contextual factors; and (3) the receptiveness of post-communist countries to the importation of transplanted legal institutions. Improvements on the conceptualisation of judicial independence, inclusion of the dimensions of receptiveness, and a more appropriate panel of countries enable this study to present a more complete and accurate portrait of constitutional judicature in transition contexts. The results show that while corrections to prior measures of judicial independence improve the results at the margin, the entirely new measures of the concept represent a greater step forward. Several dimensions of judicial independence are positively related to judicial review, as are the measures of countries’ receptiveness to legal transplants. Other key factors positively related to judicial review in transition include legislative fragmentation at the time of each court decision, the scope of rights guarantees in a bill of rights, and popular trust in courts. Presidential power is negatively related to judicial review. The findings further indicate that aside from judicial independence, the prior works do present correct portrayals of most of the contextual influences they investigate.

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2012 5 35 50 Pokol, B. (1992): Aktivizmus és az Alkotmánybíróság [Activism and the Constitutional Court]. In {ieKurtán

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The essay analyses the fourth and fifth amendments of the Hungarian Fundamental Law with special respect to the opinion of the Venice Commission and the resolution of the European Parliament. It will be pointed out that the fourth amendment transferred several legal regulations into the Fundamental Law which were previously qualified as unconstitutional by the Hungarian Constitutional Court. The Fundamental Law contains at the same time the declaration of a fundamental right and the unconstitutional limitation of it by the latter regulation. The inconsistency is evident, therefore the Constitutional Court has to choose in the future between the contradictory constitutional regulations. A possibility to solve this dilemma could be the separation of the legal norms of the constitution as lex generalis (e.g. rule of law, human dignity) and lex specialis which could not derogate the lex generalis, and ca nnot be applied accordingly.

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