legitimacy and methodology), while the concluding remarks in Part 5 suggest ways to improve the practice in general. 2 Research methodology Understanding the use of comparative law in the practice of the HungarianConstitutionalCourt requires a complex
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.
Hungary ratified Protocol No. 13 to the European Convention for the Protection of Fundamental Rights and Freedoms concerning the abolition of the death penalty in all circumstances. This event is not a surprise since the Hungarian Constitutional Court declared capital punishment unconstitutional in 1990. Retrospectively, the development of the safeguards against capital punishment in Hungary might seem as a stretch of self-evident consequences. The present paper attempts to situate the decision of the Constitutional Court in its broader context and reflect upon the significance of symbolic founding gestures in times of democratic transition.
The study analyses the potential effects of the Treaty on the Hungarian Constitution and its application by the Hungarian Constitutional Court, and the more general-and at the European Law’s present stage of the development unavoidable-problem of the theoretical analysis of European Law as a branch of law.The study points out that the Hungarian Constitution’s Accession Clause (Article 2/A) has not solved the problem of the primacy of Community Law, as far as the relationship between EU Law and the Hungarian Constitution is concerned, therefore the Constitutional Court encounters a problem that is increasingly difficult to resolve, when facing issues relating to the incompatibility of Hungarian statutes with EU Law. The study criticises some solutions proposed by the Constitutional Treaty (e.g. the institution of “recommendations”-(the present practice of “guidelines” etc.) which is definitely unconstitutional according to the Hungarian Constitution and its application practice by the Constitutional Court. Finally the study complements the problems thus outlined with the fact that the concept of EU Law and its various parts have not been clarified from a dogmatic perspective-the time has come to systematize this enormous material of law, especially when a Constitutional Treaty makes the attempt to summarize the legal fundaments of the unprecedented effort to develop an economic and political integration in Europe.
Szalai , A.
, ‘Az Emberi Jogok Európai Bírósága ítélkezésének megjelenése a magyar Alkotmánybíróság gyakorlatában’ [The Emergence of the Jurisprudence of the European Court of Human Rights in the Practice of the HungarianConstitutional
The study analyses two questions: the necessity of a European Constitution, and the basic content of the European Constitutional Treaty (with the aim to analyse in a separate study the potential effects of the Treaty on the Hungarian Constitution and its application by the Hungarian Constitutional Court).
By creating the Basic Law of Hungary, ‘rule of law’ becomes one of the most frequently used expressions in the Hungarian constitutional law. That is why this paper puts the focus on analyzing the achievements of the ‘rule of law revolution’ and at the same times the role of the Hungarian Constitutional Court in this process.Theories criticising the current Hungarian routine of the ‘rule of law’ are also taken into consideration. According to the title of this paper rule of law, division of powers and constitutionalism are shown on legal and political background. In this aspect the essay also pay attention to the activism and role of the Hungarian Constitutional Court by analyzing its related decisions. Since 1990 (establishment of the Court) the Constitutional Court was the flagship of the Hungarian legal constitutionalism by enforcing the conception of ‘rule of law’ in its decisions. As the integral part of ‘rule of law’ the principle of ‘division of powers’ was affirmed in the decisions of the Court, though it was not defined in the Constitution. The Hungarian Constitutional Court on the basis of their decisions followed the traditional idea of the ‘division of powers’, at the same time the latest trend-according to more and more branches of powers are discovered-was not accepted.According to this paper it is an intriguing task to find the solution for the conflict between political and legal constitutionalism after 2010. The Hungarian Constitutional Court played unique role in it by deciding the referred cases.The paper tries to dissolve the main constitutional conflict in the system of separation of powers by the interpretation of the fourth amendment of the Basic Law. The principle of ‘rule of law’ was established in a constitutional frame, in which the Constitutional Court is able to review the amendments from procedural point of view. The focus is also put on the future of the principle of ‘rule of law’, in this matter the Constitutional Court has special responsibility, and constitutional obligation to rule on the constitutionality of the cases brought before.
The Védegylet, a civic organisation for environment protection presented 1990 a private draft for an Act on the Ombudsman of Future Generations. In this article the author of the Draft Law describes the background to the Law. After a short survey of the development of the idea of a guardian of future generations in international law the author discusses whether future generations can have "rights" and whether future interests can be anticipated. The article raises structural questions of the proposed ombudsman (who represent whom, before what institution) and points out the differences between the existing ombudsmen defending individual rights and the speaker of future generations, the latter being rather a representative of environmental interests and a mediator. Finally the author shows how the Hungarian Constitutional Court created favourable conditions for introducing the new institution.
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.