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The Access to Constitutional Justice in the New Hungarian Constitutional Framework
Örebro University, School of Law, Psychology and Social Work.ORCID iD: 0000-0003-3141-4954
2013 (English)Conference paper, Oral presentation with published abstract (Other academic)
Abstract [en]

In April 2011, after a remarkably short debate lasted two weeks, the Hungarian Parliament adopted a new constitution, named Fundamental Law (Alaptörvény). Hungary was the only formerly socialist country that did not approve a new constitution after the breakdown of the communist regime. In the 2010 elections the right-wing coalition (Fidesz-KDNP) won two-thirds of the seats in the unicameral Parliament. Consequently, the new government could draft and approve a new constitution without the participation of the opposition. As to the composition and the powers of the Constitutional Court, only part of the rules can be found in the text of the Fundamental Law (in Articles 6, 24 and 37). In order to have a complete picture of the changes brought to the system of constitutional review, we had to wait for the new Constitutional Court Act, adopted in November 2011. Both the new Fundamental Law and the new Constitutional Court Act entered into force on January 1, 2012. My paper aims at presenting and evaluating one particular aspect of the new scheme: the access to the Constitutional Court. There have been significant changes. The abolition of actio popularis and the concomitant introduction of full constitutional complaint opened a new scenario for the Hungarian Constitutional Court in which a shift of emphasis from abstract to concrete review may be expected. Indeed, the constitutional review of judicial decisions was not among the competences of the Hungarian Court before this reform. There was an instrument, by legal scholars called normative constitutional complaint, which could be used in the ambit of legal proceedings before an ordinary court against the legal norms applied by that court and not against the judgement itself. The Fundamental Law adds also a third version of constitutional complaints that can be filed against a legal provision which violates constitutional rights directly, without a judicial decision, and there is no procedure for legal remedy or the complainant has already exhausted it. Now that there is no more actio popularis, constitutional complaints have become much more relevant in Hungarian constitutional justice. Before 2012 complainants preferred the actio popularis to the normative constitutional complaint, as it did not require any proof of personal interest or exhaustion of remedies, and there was no deadline. On the other hand, the Constitutional Court tried to make up for the absence of a full constitutional complaint and to bring ordinary court judgements in its sphere of competenceby applying the concept of living law, borrowed from the Italian Constitutional Court. One yea rafter the entering into force of the new scheme it is possible to make an early evaluation ofthe practice based on the new framework. Has the abolition of actio popularis been really compensated by the introduction of two new forms of constitutional complaint? How are these new forms being used by the complainants and interpreted by the Hungarian Constitutional Court? Can we already after one year delineate the new trends of case-law? The paper aims at answering these questions.

Place, publisher, year, edition, pages
2013.
National Category
Law and Society
Identifiers
URN: urn:nbn:se:oru:diva-90496OAI: oai:DiVA.org:oru-90496DiVA, id: diva2:1537710
Conference
5th Central and Eastern European Forum of Young Legal, Political and Social Theorists, Alfried Krupp Wissenschaftskolleg, University of Greifswald, Greifswald, Germany, May 3–4, 2013
Available from: 2021-03-16 Created: 2021-03-16 Last updated: 2021-03-19Bibliographically approved

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Kelemen [Capannini-Kelemen], Katalin

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