The use of comparative law in the practice of the Hungarian Constitutional Court: An empirical analysis (1990–2019) (original) (raw)

The Hungarian Constitutional Court: A constructive partner in constitutional dialogue

in: Pócza, Kálmán: Constitutional Politics and the Judiciary: Decision-making in Central and Eastern Europe (London/New York: Routledge, 2018), pp. 96-125.

Following the landslide victory of the Fidesz party in 2010, the new government, backed by a two-thirds majority in the parliament, started quickly transforming politics and to some extent the polity of Hungary as well. Due to the high international reputation of the Hungarian Constitutional Court, attacks against the Court became widely followed in the international scientific and laic community. Several volumes and articles dealt with the transformation of constitutional adjudication after 2010, but no one focused on the question of whether the backlash against the Court had any ground in the practice of constitutional adjudication in Hungary. This chapter will explore to what extent has the HCC has really constrained the room for manoeuvre of the legislator in Hungary after the democratic transformation process, and examine whether the narrative of a Court unduly entering the political field and, consequently, constraining too heavily the democratically elected parliamentary majority might prove true. We will argue that the practice of the HCC and its position within the system of separation of powers might be best described as a partner in a constitutional dialogue. In this position, the HCC signalized quite frequently that the legislator departed from the path of constitutionality but, at the same time, it developed a highly refined instrumentarium not to constrain too heavily the legislator. Thus, the attitude of the court towards the legislator has been rather cooperative and partnerial rather than confrontative.

An Argument from Comparative Law in the Jurisprudence of the Polish Constitutional Tribunal

Adam Mickiewicz University Law Review, 2018

The use of references to foreign law and jurisprudence by the constitutional courts around the world currently gains more and more attention from scholars. The admissibility and usefulness of conducting such a horizontal dialogue between various jurisdictions raises controversies in other countries, but not in Poland, where no significant academic discussion on the legal basis and justification for using comparative arguments in constitutional jurisprudence has been conducted. The reasons for this lack of controversy seem to lie in the roots of the 1997 Constitution, and the way in which the Polish legal system is constructed. The Polish Constitutional Tribunal is quite prone to using comparative references in its reasoning. However, it rarely clearly indicated their role or significance for the resolution of the case before it. The analysis of the case-law of the Tribunal indicates that references to foreign law concern constitutional provisions, legislation, and the judgments of other constitutional courts. The purpose of the references stresses the universality of particular constitutional norms and deciphering their meaning, as well as gathering data significant for the assessment of the proportionality of a national law, as well as at drawing inspiration from the decisions taken by foreign courts. However, the persuasive use of a comparative argument demands that the methodological problems which can be noticed in the case-law should be addressed. They involve in particular: the need to justify the choice of comparative material that is analysed, the fragmented nature of the analysis, and the lack of a clear indication what role these kind of arguments have in constitutional argumentation.

ECtHR Judgements in the Decisions of the Hungarian Constitutional Court

Law, Identity and Values, 2022

The aim of this study is to explore the influence of the judgements of the European Court of Human Rights (ECtHR) on the case law of the Hungarian Constitutional Court on the basis of the analysis of thirty selected decisions. The Constitutional Court has a rather ambivalent attitude (to the references) to the ECtHR judgements. One of the approaches is that, based on the principle of pacta sunt servanda, the Constitutional Court should follow the Strasbourg case law and the level of protection of fundamental rights, even where this would not necessarily stem from its ‘precedent decisions’. In other decisions one can come across with arbitrary selection of ECtHR judgments or silent disregard of the Strasbourg case law. The Constitutional Court uses the ECtHR jurisprudence in its constitutional reasoning in a quite multicoloured and flexible way. Even when the ECtHR judgements have a very loose connection with the subject matter of the case before the Constitutional Court, it is not r...

The Position and Activity of the Constitutional Court of Hungary: 2011-201

Przegląd Prawa Konstytucyjnego, 2020

The Constitutional Court has functioned in Hungary since 1989. Its activity shaped the frame of democratic state of law and influenced the constitutional order in Hungary. In 2011 the National Assembly passed the new Act on the Constitutional Court that replaced a previous one from 1989. The provisions of the Act and the Fundamental Law reduced the role and position of the Court as a separated body in the tripartite power division. The reduction of competences is accompanied by the diminishing of the concluded cases as well. Streszczenie Pozycja i działalność Sądu Konstytucyjnego Węgier w latach 2011-2019 Węgierski Sąd Konstytucyjny został ustanowiony w tym kraju w 1989 roku. Jego działalność pozwoliła na ukształtowanie podstaw demokratycznego państwa prawa i porządku konstytucyjnego Węgier. W 2011 roku węgierski parlament przyjął nową ustawę o Sądzie Konstytucyjnym, która zastąpiła pochodzącą z 1989 roku. Przepisy nowej ustawy oraz Fundamentalnego Prawa ograniczyły rolę i pozycję Sądu Konstytucyjne

Hungarian Constitutional Court: Keeping Aloof from European Union Law

ICL Journal, 2011

While the European Union is in the process of carefully navigating among the various forms of sub-federalism, Member States - including recent ones like Hungary, trying to find an equilibrium between their sovereignty and European supranationalism - have to cope with possible conflicts between their national legal systems and EU law. Since Hungary's accession to the European Union, the Hungarian Constitutional Court has faced questions regarding the constitutionality of EU legal rules and conflicts between European and national legal norms. This article examines these issues and analyzes criteria of constitutional review that the Court has gradually set out in dealing with some of these conflicts. So far, it has established two principles marking the boundaries of future constitutional practice. First, it will treat the founding and amending treaties of the European Union as part of domestic law for the purposes of constitutional review, thereby setting up a two-tier system of l...

EXPERIENCE WITH TEACHING COMPARATIVE JURISPRUDENCE IN HUNGARY

2014

Historical comparison is preconditional to understanding in social sciences. Legal science can qualify as such only provided if its subject is investigated universally as a phenomenon. The law as subject is a complex entity, composed of posited texts and canonised reasoning with them as well. Henceforth both comparative law and comparative legal cultures need to be cultivated and also taught. Experiences with teaching them are rather positive both in introducing students to their encounter with law and in synthesising their studies.

The Invisible Factors Behind Using Comparative Law in Constitutional Adjudication

Romanian Journal of Comparative Law, 2019

The Invisible Factors Behind Using Comparative Law in Constitutional Adjudication. Romanian Journal of Comparative Law, 2019/1, 201-226. Abstract Courts dealing with constitutional issues are often using comparative law when fulfilling their functions: they refer to foreign law or at least consult comparative material. The scope and form of the use of comparative law is different at the different courts and there are severe criticisms about the lack of methodology. These phenomena be explained by the judges’ and courts’ different aims when using comparative law, and by the different factors that influence them when deciding in which cases, in which forms, and which jurisdictions’ law they consult or refer to. However, most of these aims and factors are invisible and therefore unveiling them demands complex research methods. The understanding of these aims and factors can help scholars to prepare methodological standpoints for judges to support them in avoiding misuse of comparative law and ‘cherrypicking’, and through this strengthening the legitimacy of the courts. Keywords: comparative law; judicial dialogue; constitutional adjudication; citation; horizontal communication; methodology

Explaining Hungary's powerful Constitutional Court: a bargaining approach

European Journal of Sociology, 2001

Among the happier surprises in the East Central European world since 1989 are the new Constitutional Courts. Herman Schwartz E        of the Eastern European countries that democratized in - emerged with a constitutional court or some form of tribunal charged with protecting constitutionality. Most of these were created sui generis during the transition process. Even in comparison with powerful courts in Western Europe, however, the Hungarian court has remarkably broad jurisdiction and extensive authority (Elster et al. , ; Brunner , ; Schwartz , , ). Relying on these 'vast formal powers,' the Hungarian Constitutional Court has become an important factor in the democratic consolidation process (Klingsberg , ; Sólyom , ). Staking out its authority immediately, the court has taken important and controversial decisions on a wide range of issues: the state's control over broadcast media, the relative powers of the president and the prime minister, lustration efforts, the death penalty, abortion, property restitution, economic reform measures, same sex partnerships, and referenda (Elster et al. , ; Paczolay ; Schwartz ; Sólyom and Brunner ). Observers have consequently emphasized the court's role as a 'safeguard' of the transition process and the rule of law (Elster et al. , ; Klingsberg , ; Kulcsár , ; Paczolay , ; Schwartz , ). Not surprisingly, this was not the original intent of the communist regime when it initiated the institution's creation-only 'afterwards [did] they realize that this is a very serious institution' ().

The New Hungarian Constitution: Legal Critiques from Europe

Review of Central and East European Law, 2017

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.