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.
As a synthetic concept, the État de droit could designate those states guaranteeing predetermined principles corresponding to “the principles of the État de droit”. And even if not all principles are fully guaranteed, it is admissible anyway to consider either that a state is partially an État de droit, or an État de droit to a certain extent, or that a better guarantee of one of the principles could allow a lower guarantee of another one. The concept of État de droit would then have a material (and effective) existence and positivity in law. Unfortunately, neither the positive law nor the doctrine defines it precisely enough to make the identification of those “principles of the État de droit” easy. On the contrary, the positive law is either inexistent or contradictive and, in the latter case, it seems to make use of the notion not because of its content — whenever it has one — but because it appears like an expression summarizing the existence of other principles.
The principle of fair administration of justice requires that formal restrictions on initiating procedures before courts correspond to the right to access to a court. Based on the rule of law-Community law shall ensure that its provisions on the administration of justice are in accord with the fundamental law requirements established in Community law. The provisions on intervention before Community courts contain certain restraints on access to a court that are worth scrutinising on a fundamental right basis. The aim of the paper is threefold. First, it wishes to recover the jurisprudence of Community courts interpreting the conditions of intervention. Second, it attempts to reveal the jurisprudence of the Strasbourg and Luxembourg courts on access to justice with respect to formal restrictions. Third, it essays to implement the access to court test on the restraints of access to justice in intervention.
) law (construction of a genuine legal order); the will to contribute to the constitutionalization of the Community’s legal regime (especially the protection of fundamentalrights) 4 and the building and maintaining of the common (internal) market. 5
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.
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.
Europe is not only the land of origin, but also the principal keeper of social rights, since it is associated with the concept of Europeanism. The obvious social restrictions in Hungary as well as in other countries of Europe in recent years make it absolutely reasonable to examine to what social-economic context the discernible withdrawal of welfare services provided by the state is attributable. The similar manifestations are supported by no means by the same system of social conditions. As to its basis and dating back to its historical origin, the current social policy of the EU is framed in the spirit of the conceptual system of the social state. The Fundamental Rights Charter (just as the “European Constitution Treaty”, as part of which it may become mandatory) does not reflect either the labour society or Europe of the peoples, but the conceptions of the capital, of political classes and eurocracy. Nevertheless: considering the power relations of global capitalism, we need to appreciate as an apparent actuality that in the midst of these relations the charter insists not only on the requirement of European unity, but also on a modernised version of the social conceptual system. The purpose of this treatise has been to highlight that social objectives cannot be treated as isolated from their economic and social context. We should not risk balance by the maintenance and preservation of a social-organisational framework via overspending, which altogether contradicts the possibility of development and the sustainability of equilibrated development.
The system of judicial review in the European Community has recently come under scrutiny on grounds of the right to effective judicial protection as provided in Article 6 ECHR and in the Charter of Fundamental Rights of the European Union. The applicants in cases UPA and Jégo-Quéré claimed that in case their action was found inadmissible under Article 230 (4) EC, they would be deprived of effective judicial protection since other means of protection against violation of law by the Community do not provide adequate remedies. The Court of First Instance in Jégo-Quéré responded to the claims of the applicant by concluding that a new interpretation of the condition of individual concern laid down under Article 230 (4) EC could ensure the right to effective judicial protection in the system of judicial review in Community law. In spite of the fact that the Advocate General also envisaged that the amendment of the condition of individual concern may guarantee the protection of this right, the Court of Justice in UPA rejected such a solution, and stated that it is the duty of the Member States to provide effective judicial protection under Community law acting on national or Community level.