Hungarian Ban Of Totalitarian Symbols: The Constitutional Court Speaks Up Again

Although the Hungarian government promised not to strike back after the Constitutional Court’s finding the constitutional amendment on the voters’ registry unconstitutional, more recently it became clear that the Court will face a more comprehensive response than an occasional constitutional amendment overturning its recent decisions.

The constitutional amendment tabled by the government in early February 2013 (T/9929) will essentially restore the invalidated Transitional Provisions into the core text of the Fundamental Law. Among the restored provisions the lengthy segment of the former Transitional Provisions on “Transition from Communist Dictatorship to Democracy” is inserted in the “Foundation” section of Fundamental Law as future Article U. In addition, the new constitutional amendment includes adjustments to the procedure and power of constitutional review. It also brings a prohibition on interpreting the articles of the Fundamental Law with reference to the decisions of the Constitutional Court under the previous Constitution, thus, hoping to remove 20 years of constitutional jurisprudence from the record of Hungarian constitutionalism.

While awaiting the finalization of the amendment, apparently, the Constitutional Court is not intending to lay low. Instead, it just handed down a decision on a constitutional complaint by Mr. Vajnai, a political actor who is famous Europe-wide for his efforts to wear the red star in public. It was upon his claim that the European Court of Human Rights found the application of the Hungarian criminal ban on select totalitarian symbols unconstitutional in Vajnai v Hungary in 2008. Article 269/B of the Criminal Code prohibits, inter alia, the public display of ‘a swastika, an SS-badge, an arrow-cross, a symbol of the sickle and hammer or a red star, or a symbol depicting any of them ...

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