Abstract
The Chapter focuses on the emergence of the postulate of universal human rights protection in Hungary on the basis of the 1989 Constitution of Hungary. Taken into consideration the challenges of international protection of human rights, the first part outlines how and in what way the Hungarian Constitution ensures the harmony between the international obligations safeguarding human rights and domestic law. The second part refers to the challenges of regional (European) system of human rights’ protection arising from the accession of the EU to the ECHR and the significance of the EU Charter of Fundamental Rights. Finally the Chapter presents the most important guarantees of fundamental rights as provided for by the Constitution of Hungary and reinforced in the practice of the Hungarian Constitutional Court. The conclusion is that the effective multidimensional protection of an individual depends on a multilevel system, in which the states as well as regional and international organs cooperate.
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Notes
- 1.
Part 22.1.2 of this chapter is based on the manuscript written by Nóra Chronowski, Tímea Drinóczi, sent to Jan Wouters and André Nollkaemper and Erika de Wet. The edited version of the manuscript was published as Chronowski, N., Drinóczi, T. (2008) “A Triangular Relationship between Public International Law, EC Law and national law? The Case of Hungary”, in: J. Wouters, A. Nollkaemper, E. de Wet (eds.), The Europeanisation of International Law. The Status of International Law in the EU and its Member States, The Hague: T.M.C. Asser Press, 161–185.
- 2.
When the manuscript of this chapter was closed and submitted in 2011, the Hungarian Constitution in force was the Act XX of 1949, revised, inter alia, by Act XXXI of 1989. The latter amendment created a democratic constitutional order governed by the rule of law. After the 2010 parliamentary elections, the governing party alliance acquired the two-thirds majority of mandates in the National Assembly and announced the creation of a new constitution. This new constitution – the Fundamental Law of Hungary – came into force 1 January 2012. However, it contains more or less the same rules concerning the rank of international law in the Hungarian legal system. Article Q of the Fundamental Law provides that “Hungary shall ensure harmony between international law and Hungarian law in order to fulfil its obligations under international law. Hungary shall accept the generally recognised rules of international law. Other sources of international law shall become part of the Hungarian legal system by publication in the form of legislation.” Moreover, the Hungarian Constitutional Court is willing to apply its former case law and recall the previous rationale if the formulation of text in the Fundamental Law is the same as the wording of the former Constitution was. See 22/2012 (V. 11.) AB határozat (CC decision).
- 3.
Because the Constitutional Court (CC) fails to use international legal terminology, it is difficult to construe from the resolution what the Court denoted under the general principles of international law. See 53/1993 (X. 13.) AB határozat, (CC decision), ABH 1993. 323, 329.
- 4.
For a contrasting opinion see Bokorné Szegő (2003, 50). In her opinion the constitutions, since they refer to general principles of international law, leave open the question of whether they refer to customary international law, jus cogens, or both.
- 5.
For a similar view in Italian legal literature see Zagrebelsky (1987, 120).
- 6.
53/1993. (X. 13.) AB határozat, (CC decision), ABH 1993, 323, 327.
- 7.
In the case examined in the resolution, according to Constitutional Court (CC), Article 57(4) and Article 7(1) of the Constitution should be interpreted with regard to each other. 53/1993. (X. 13.) AB határozat, (CC decision), ABH 1993. 323, 327.
- 8.
The expression ‘generally recognized principles’ of international law is applied, for instance, by the German Basic Law (Article 25) when it states that the general principles of international public law are part of the federal law and as such they have primacy and will directly entail rights and obligations for the inhabitants of the federal territory. Under Article 9 of the Austrian Federal Constitution, the generally recognized principles of international law form part of the federal law in effect. Pursuant to the Greek Constitution, the generally recognized principles of international law take priority over contradictory legal provisions. Article 8 (1) of the Portuguese Constitution states that general and common law principles of international law constitute part of Portuguese law. By virtue of Article 10 of the Italian Constitution, “the Italian law and order aligns with the generally recognized principles of international law.” The conclusion we can draw from these formulations is the absolute priority of the general principles of international law over domestic law. However, Article 29(3) of the Irish Constitution also recognizes the generally recognized principles of international law, but adopts them just as principles of conduct against other countries.
- 9.
- 10.
Article 23(3) of the Act on the Constitutional Court.
- 11.
Cf. 4/1997 (22. 01.) AB határozat, (CC decision), ABH 1997.41.
- 12.
Article 32(1) of the Act on the Constitutional Court.
- 13.
E.g., a treaty published in a decree of the Government and conflicting with an Act of Parliament.
- 14.
Cf. Article 42(1) and (2) of the Act on the Constitutional Court.
- 15.
E.g., the promulgating provision is a governmental decree. If it contradicts an Act of Parliament, the procedure is followed according to the Act on the Constitutional Court mentioned above.
- 16.
On the basis of the mandate and the immediate antecedents see Szalayné Sándor (2003a, 10).
- 17.
CONV 354/02 Final Report of Working Group II. Brussels, 22nd October 2002.
- 18.
Articles 52 (3) and 53 of the Charter.
- 19.
C-249/96. Grant v. South-West Trains Ltd. [1998] ECR I-621, 45.
- 20.
In Hungary in 1989, the drafting of the new Constitution, as a result of the transition, was formally the amendment of the Constitution existing that time, and this was the Act XX of 1949. This amended Constitution – according to its preamble – was an interim constitution that was ascertained by the Parliament until the creation of a brand new constitution. Although the interim Constitution was modified by the Parliament several times during its lifespan, the drafting of a new constitution – except of some attempts – lagged behind for 20 years. Substantively, however, the 1989 amendment created a totally new constitution. The case law of the Constitutional Court developed a democratic constitutional culture on the basis of this text. As it has already been mentioned (see note 2), a constitution-making process started in 2010, the new Fundamental Law was adopted in April 2011, and it came into force 1 January 2012. The fundamental rights chapter was updated and some new rights have appeared as some achievements of the EU Charter were utilised. However, the collectivist approach of the Fundamental Law, the single ombudsman system and the exceptions to the norm-annulment power of the Constitutional Court may reduce the level of fundamental rights protection in Hungary. As the manuscript of this chapter was submitted in February 2011, when the draft of the new constitution was still unknown, the analysis takes place on the basis of the former Constitution in part 22.3.
- 21.
See Act XXI of 1989 on the modification of the Constitution.
- 22.
11/1992 CC decision. ABH 1992. 77 (80).
- 23.
On constitutional values see Ádám (1998, 33–88).
- 24.
ABH 1992. 77 (80).
- 25.
The constitutional right of the party to a legal dispute to take his case before the court – similarly to other human rights – also includes his right not to utilize this right. ABH 1992, 59 (67).
- 26.
ABH 1992. 27 (31).
- 27.
Const. Art. 51. (1) and (2). The new Fundamental Law in Article 25(2) provides that Courts shall decide on criminal matters, civil disputes, other matters defined by laws, the legitimacy of administrative decisions, and the conflicts of local ordinances with other legislation.
- 28.
The courts thus, whilst deciding on individual cases restore the completeness of law. Their rulings are definitive and binding for all – i.e. the natural and legal persons as well as state organs.
- 29.
Constitution Art. 32/A (1) and (2). However, in November 2010, the power of the Constitutional Court was significantly restricted by an amendment to the Constitution. Pursuant to the amendment, the Constitutional Court shall not review constitutionality or annul the laws on state budget, taxes, customs, fiscal charges, conditions of local taxes, except if these laws infringe the right to life and human dignity, the right to personal data, the freedom of conscience and religion and the rights connected to citizenship. Due to this restriction, the Constitutional Court cannot give effective protection regarding, for example, the fundamental right to property, the right to social security, the freedom of enterprise; despite the fact that laws on public finances can potentially limit the economic and social rights.
The new Fundamental Law has maintained this restriction, thus the Constitutional Court is not able to guarantee effective remedy against infringement of individual rights by fiscal laws.
- 30.
The scope of authority of the Constitutional Court also covers preliminary norm control, the review of whether provisions and other legal means of state direction coincide with international agreements, quashing the conflict of authority between state organs, between self-governments and other state organs and between self-governments and also the interpretation of the provisions of the Constitution. Further areas of authority can be established by laws.
- 31.
E.g. the rights of elderly, the rights of persons with disabilities, protection in the event of unjustified dismissal, right to marry, right to reconcile family and professional life, prohibition of death penalty.
- 32.
For instance the Constitution states in the case of persons suspected of having committed a crime and arrested, they must be brought to trial or released within the shortest time possible. However this right is not provided for minors deprived of freedom, the mentally handicapped, people having contagious diseases, alcoholics, drug-addicts, homeless persons and in the case of foreigners unlawfully residing in the territory of the country. Some other procedural rights of people suspected of having committed a crime are also lacking, e.g.: the right of the needy to a free defender appointed officially.
- 33.
However, the constitution-making process started in 2010 does not seem to follow this advice. The definition of the rights appeared in concise sentences in the concept of the new Constitution and the text of articles on certain fundamental rights in the new Constitution presumably will not contain more details and better guarantees than the present constitutional rules.
- 34.
We must note that the concept of the new Constitution in 2010 contains the establishment of the separate administrative court system.
- 35.
This situation could be changed by the stronger enforcement of professional points of view and with the amendment of nomination and election rules. However, in 2010 the rules of nomination for the post of constitutional court judges became worse than ever. Before the amendment to the Constitution the consent of parliamentary majority and the opposition was needed for the nomination. Since July 2010 the governing majority with two-thirds of mandates in the Parliament is able to nominate for this post alone, i.e. without the consent of the opposition. Thus the influence of certain political parties was increased, and professional considerations were effaced.
- 36.
E.g. European Convention on Human Rights, European Social Charter, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Agreements on protection of national, ethnic and linguistic minorities
- 37.
Many illustrious representatives of Hungarian legal theory analyse the harmony between the ECHR and the Hungarian regulation of fundamental rights, the relationship between the Hungarian jurisdiction of fundamental rights and the practice of Strasbourg, critically pointing out the deficiencies and omissions. In this report we should not examine the realisation of the harmony, but accept its existence. See more in Weller (2000, 289–322), Halmai and Tóth (2003, 161–168), Blutman (2001, 41–64).
- 38.
Against the acts of Community/Union – which go beyond the treaties, overrunning the limits of authorization and acting ‘ultra vires’, and not remediable by the institutions – the ‘ultimate reasons’ can be proved if the Union respects the national identity of the member state by the Article 4 (2) of the TEU. The protection of essential elements of constitutional establishment, especially the standard of protection of fundamental rights, belongs to the national identity.
- 39.
TEU Article 6(3).
- 40.
Blutman ( 2001 , 23–24) draws attention to the fact that it is not reasonable and sometimes it can be disadvantageous.
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Chronowski, N., Drinóczi, T., Petrétei, J. (2013). Multidimensional Protection of Universal Human Rights in Hungary. In: Arnold, R. (eds) The Universalism of Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 16. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4510-0_22
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