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Likeness of Police Officers: Freedom of the Press and the Right to Facial Likeness at the Crossroads of Civil and Fundamental Rights
110-128Views:186The Constitutional Court of Hungary, proceeding in its new competence regarding the „real” constitutional complaint obtained from 1 January 2012, is allowed to adjudicate the motions initiated against concrete judicial decisions which are deemed to be contrary to the Fundamental Law of Hungary. Within this procedure the Constitutional Court places the protection of the freedom of expression and freedom of the press above the protection of personality rights. The Court consistently annuls judicial decisions that declare infringement of personality rights on grounds that a press agency published recognizable facial likeness of police officers being on duty during demonstrations. The present paper analyses the course during which the Constitutional Court does enforce the constitutional requirements elaborated in its former practice and, thereby, repeals the ordinary courts’ decisions if those favour the personality rights of police officers over the freedom of the press.
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The Constitutional Obstacles before the Promulgation of the Rome Statute
45-59Views:368July 17, 1998, can be considered as one of the most important milestones of the international judicial structure: it is the day when the Rome Statute of the International Criminal Court was adopted by 120 states out of 148. Article 86 of Statute explicitly states that „States Parties shall […] cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” As in the case of every international treaty, the principle of pacta sunt servanda enshrined in Article 26 of the 1969 Vienna Convention on the Law of the Treaties states applies, which explicitly states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” As has been pointed out by the Permanent Court of International Justice, contracting states must make all the necessary internal measures which are required to fulfil its international obligations rising from a binding treaty. One could ask, why is this quite obvious argument important in the case of Hungary? Well, Hungary has ratified the Statute but still has not implemented it in its internal legislation. This can be considered as a serious constitutional omission, since if the Court would require the cooperation of Hungary – e.g. in the case of an arrest warrant – and it would not be able to fulfil it because of the lack of the internal legal norms, it would be considered as international legal responsibility of Hungary. In this article, I try to explore the reasons behind this omission and outline the possible solutions.
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Central Issues of the Application of EU Law in the Recent Case Law of the Hungarian Constitutional Court
161-174Views:119The present article examines the recent case law of the Hungarian Constitutional Court as regards the constitutional framework and the judicial practice of the application of EU law. After a short overview of the early precedents, the article focuses on the case law subsequent to the adoption of the new Fundamental Law in 2012. In the recent decisions the need for cooperation with the EU Court of Justice is of special importance so the article reflects on this issue as well. The first part scrutinizes the case law concerning the constitutional limitations and control measures of the application of EU law, including the landmark decision of 22/2016 (XII. 5.). The second part focuses on the decisions delivered in constitutional complaint proceedings, which determine the constitutional requirements of the preliminary rulings procedure and the judicial obligation to give a reasoned decision.
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Constitutional Foundations of EU Membership in Hungary Before and After the new Fundamental Law
29-47Views:225The paper examines the Hungarian constitutional framework which determines the relationship between domestic and EU law. The constitutional foundations changed in 2011 when the new constitution, the Fundamental Law was adopted. The former 1989 Constitution contained in Article 2/A the so-called ’European clause’ adopted before EU accession, which was referred to as the main constitutional basis of Hungary’s EU membership by the Constitutional Court. The new Fundamental Law contains a seemingly similar ’European clause’ in Article E. The paper scrutinizes the question whether the former and the new clauses are truly similar and concludes that opposite to the Constitutional Court’s point of view the new European clause should be interpreted differently from the former, which might lead to a different, less Europe-friendly approach towards EU membership.
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Questions of divisions of powers in the 21st century after the adoption of the new Fundamental Law of Hungary
24-37Views:341The question of division of state powers is a crucial part of constitutional law determining how state organs work (or should work) in theory and in practice. After the adoption of the new Fundamental Law of Hungary, there are some modifications in the Hungarian constitutional system, including the division of powers as well. In this study we examine the original model of “3 branches of power – 1-1 function” as a starting point, and the other factors and branches which can modify the original model. In the study we try to focus to the examples of the former and present Hungarian legal system as certain proves of our theory about the new frameworks of division of powers in Hungary. In the end of this study we also examine, as an indirect argumentation, the opposite side of the separation of powers, i.e. concentration of powers.
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Hungarian legislative changes induced by the case-law of European Court of Human Rights
109-122Views:168Indisputably, the European Court of Human Rights (ECtHR) has an effect on national legal systems. In this study I examine the type of this effect in the Hungarian legal system through the case law of the year 2014, and as an outcome, I would like to demonstrate that the ECtHR has both direct and indirect impacts on the national legislation in Hungary. As a result of the judgments’ direct impact, changes are made in the national legislation, meanwhile the indirect impact can only be detected in the decisions of the Hungarian Constitutional Court or domestic courts. Obviously, the direct impact is the most significant and most noticeable, however, the significance of indirect impact has been gradually increasing in the recent period. Based on this idea, I would like to point out that both effects are present in the Hungarian legislation, and seem to show an increasing trend, although the judicial bodies mean an exception in this practice. Nonetheless, according to the European practice, the judicial bodies will most likely refer to the international norm and the case law of the ECtHR in the near future.
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The Problem of Defining Criminal Norms Precisely. The „Clarity of Norms” Doctrine in the Decisions of the Hungarian Constitutional Court and in Judicial Practice
37-59Views:357The principles of legality in criminal law determine numerous requirements both for the legislator creating criminal statutes and for judges as well who decide criminal cases. One of the most important demands of legality is the principle of maximum certainty according to which the state must establish a system of criminal law in which the wording of the statutes are clear, precise and understandable for the citizens; and judges are able to interpret criminal rules without making arbitrary decisions. In the Hungarian legal system the demands of maximum certainty are represented by the principle of nullum crimen sine lege. This principle is called the „clarity of norms” doctrine in the practice of the Constitutional Court of Hungary (HCC) which is entitled to strike down criminal statutes which do not meet its requirements. The aim of this paper is to argue for the claim that the „clarity of norms doctrine” and the concept of certainty in criminal law is based mostly on considerations about the plain meaning of words and texts and lack a coherent theoretical background in the decisions of the HCC and in judicial practice as well. The author offers a more complex and coherent conception of certainty stating that its requirements relate not only to linguistic considerations but also to thinking over the moral and political values of criminal law as well.
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The Transfer of Contract on the Basis of Statutory Provisions: Novation or Succession?
7-27Views:227In 2016, the Act CLXXVII of 2013 on the Transitional and Authorizing Provisions related to the Entry into Force of Act No. V of 2013 on the Civil Code (’Ptké.’) was amended, with questions of interpretation arising regarding the transfer of contract on the basis of statutory provisions. Therefore, after a short period of rest, the transfer of contract, the novation, and their relationship again became the focus of the attention of both legal scholars and practitioners. After a short introduction of the legal provisions on the transfer of contract, the amendment of 2016 and its reasons are reviewed. Then, both the controversies that emerged in the judicial practice and the answers given by the Hungarian Constitutional Court and the Curia are examined thoroughly.