The Hungarian Constitutional Court’s case with the ECHR: an ambivalent relationship

Hungary was the first country in the post-Soviet bloc that joined the Council of Europe and ratified the European Convention on Human Rights (Convention/ECHR) and this remains a matter of national pride. While the Convention is perceived as a yardstick in human rights protection that may not be circumvented, still lively debate surrounds the authority of the case-law of European Court of Human Rights (ECtHR). The recent constitutional reform has left the status of the Convention largely untouched. The Convention still enjoys a supra-legislative rank: it is subordinated to the Fundamental Law (FL) but is superior to all other pieces of legislation.

Although the Hungarian Constitutional Court (CCt) had started its operation three years before Hungary ratified the Convention, it did not prevent the CCt from making references to the text. In the first formative years, the CCt primarily relied on the text of the Convention and attributed a complementary role to the case-law of the ECtHR. Without openly recognizing the primacy of the Convention standards, the CCt committed itself to ensure compliance between the ECtHR jurisprudence the domestic law, and left the possibility open to revise its prior position if the development of the former required so. However, the ambitious statements remained empty phrases mostly without a noticeable impact.

Invoking meta-constitutional principles and values has never been alien to the CCt: be it the ‘invisible Constitution’ first articulated by Justice Sólyom in his concurring opinion to decision abolishing capital punishment, or the ‘core content’ of the Constitution embracing – among others – the constitutional rights as accepted in the common European tradition and reflected in the documents of the Council Europe ...

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