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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:161The 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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Risks and Adverse Effects: Decisions of the Italian Constitutional Court on the Compulsory COVID-19 Vaccination
102-127Views:203In recent years, several judicial and constitutional court decisions have been handed down worldwide on the legality and constitutionality of the fundamental rights restrictive measures (including compulsory vaccination) imposed during the pandemic. Aside from Austria, Italy has imposed compulsory vaccination more widely than any other European country; moreover, the lack of vaccination has made it impossible for citizens to live their daily lives to such an extent that some scholars have even written of de facto compulsory vaccination. In December 2022, the Italian Constitutional Court ruled in three judgments against the petitions related to compulsory vaccination. After outlining the legal context and the scholars’ positions on mandatory Covid vaccination, this paper examines these decisions, focusing on the arguments on which the Court saw justification for compulsory vaccination.
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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:324The 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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Central Issues of the Application of EU Law in the Recent Case Law of the Hungarian Constitutional Court
161-174Views:102The 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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Questions of divisions of powers in the 21st century after the adoption of the new Fundamental Law of Hungary
24-37Views:296The 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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The Transfer of Contract on the Basis of Statutory Provisions: Novation or Succession?
7-27Views:191In 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.
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One step back. The Hungarian Constitutional Court’s decision about the Liability of Commenting on the Internet
142-150Views:167Restrictions on the freedom of expression have been subject to mixed and constant debates. The debates are increasing in the case of free speech on the internet. In the recent past the Hungarian Constitutional Court had to examine this problem and contribute to the discourse. This article presents decision 19/2014 of the Hungarian Constitutional Court concerning the freedom of expression on the internet. The subject-matter of the case was the liability for the comments. The study intends to show the arguable points of the Court’s reasoning.
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Constitutional Foundations of EU Membership in Hungary Before and After the new Fundamental Law
29-47Views:186The 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.