The Transformation

of the Hungarian Legal System

2010–2013

Editor

Péter Smuk

Published by

Wolters Kluwer Ltd.

Hungary, 2013

Prielle Kornélia u. 21–35., 1117 Budapest, Hungary

Phone: +36 (1) 464-5656

Fax: +36 (1) 464-5657

e-mail: info@wolterskluwer.hu

www.wolterskluwer.hu

ISBN 978 963 295 344 1

Product code: YEB1465

All rights reserved. No part of this book may be reproduced by any means, or transmitted or translated into machine language without the written permission of the publisher.

The publication of this book was supported by Széchenyi István University under the aegis of the Széchenyi University Press series. The book is based upon the research carried out by the Faculty of Law and Political Sciences, the Center for Parliamentary Research, the Center for Civil Law Research and the Center for European Studies.

www.sze.hu

Editor:

Péter Smuk

Authors:

Gábor Bende-Szabó

Gábor Kovács

Andrea Domokos

Ákos Kőhidi

Csaba Erdős

András Lapsánszky

Judit Fazekas

Ádám Menyhárt

Jácint Ferencz

László Milassin

Mónika Ganczer

Péter M. Nyitrai

Fruzsina Gárdos-Orosz

András Osztovits

Éva Göndör

András Patyi

Rita Gyurita

Erika Reiderné Bánki   

Dominika Hajasné Borsa      

Péter Smuk

Gergely Horváth

Gábor Sulyok

Balázs Horváthy

Péter Szalai

Gábor Hulkó

András Szegedi

Gábor Jobbágyi

László Székely

János Kálmán

Péter Szigeti

Gergely G. Karácsony

Tamara Tóth

László Knapp

Péter Váczi

Translation and language supervision by

Szilárd Rácz and Patricia Mary Hughes

© Péter Smuk (ed.)

© Authors

© Széchenyi István University, Győr, 2013

© Wolters Kluwer Ltd., Budapest, 2013

Foreword

There have been several changes of regime in Hungary’s history over the last hundred years: in the catharsis and ending of the World Wars (1918–19, 1944–45), communists coming into power (1949) and following the collapse of the socialist block. Between them barely a time period of one generation had passed and society was already working on the establishment of another system “fated for success”. From among the political systems of the past century the so-called Third Hungarian Republic, established in 1989/90, was the freest one that facilitated the self-assertation of individuals the most. Opinions are, however, divided over whether the governing elites, although they have recognised the importance of the rise and equality of several social groups, have done, or indeed could have done, everything to reach these goals.

The activity of the Government which was formed following the 2010 elections is definitely to be considered as a distinctive change in the development of the democratic political and legal system established—more precisely instituted—in 1989/90. The Government announced the renewal of Hungary and the transformation of the legal system in its programme. Lacking historical perspective, the designation of distinctive change is based on the opinion of contemporaries, Hungarian society and the legal-academic literature. It remains for future generations to decide whether it can be considered as a new system or “only” the ending of the transitional period.

This Book is intended to provide a comprehensive outlook for the professional public on the transformation of the Hungarian legal system which has been carried out since 2010. We do not intend to present the political background of the decisions transforming the legal system, our legal scholar authors simply analyse the reforms of the Codes and significant legal institutions of the main branches of law.

The scope of these studies is astoundingly large. Starting with the new constitution, through the transformation of the system of administration, Parliament also adopted new Civil, Criminal and Labour Codes. The wide range of fundamental rights, along with the legal status and competence rules of most of the State Organs has been modified. Direct democracy will be manifested according to new rules: a new substantial and procedural regime has been established for elections and referenda.

The rules within the individual branches of law are worth separate monographs; the jurisprudential work on the elaboration of these has already started in Hungary. This volume does not intend, because it is not able to, provide a full-scale analysis of all new acts. Instead, the basic institutions of the Hungarian legal system and their changes will be presented. Our jurisprudential analysis extends to those professional debates that took place around the legislation. It should be noted here that the Government considered the transformation of the legal system as its main duty on its own responsibility. From this it followed that the rapid “reforms” discussed in this book have not met wide consensus either in the Hungarian political elite or among the representatives of the academic sphere, scholars. The transformations have been followed with special attention by the international, especially EU, public and institutions, in particular regarding whether the regulation ideas of the Hungarian legislators can be implemented in coherence with the traditions of the Hungarian legal system, EU Law and the standards of the European constitutional culture. Our studies take sides in this discussion on a professional jurisprudential basis, keeping an appropriate distance from sensitive political debates.

Our main goal is to provide a valid picture for the professional public of the transformation of our legal system. We have paid special attention to the European public’s lack of information, therefore the backgrounds of individual legal institutions and the regulation concepts will be highlighted also. Instead of citing the relevant legal texts in detail, where available, we have marked the internet sites containing the acts’ English translations, which can be considered authentic or reliable.

The authors of the Book are researchers at the Széchenyi István University Faculty of Law, Győr. Members of our study group have been working on the project since the summer of 2012, and the results are hereby published. The closing date of the manuscript was 1 May 2013, however, in exceptional cases fresh introductions from the unceasing, continuous activities of the legislators have been carried over up until the date when the redaction process started.

Publication of this book was supported by Széchenyi István University. Individual elements of the research were financed from project No. TÁMOP-4.2.2/B-10/1-2010-0010. Apart from the editor, several leading researchers of the Faculty of Law have participated in the professional supervision of the studies: Professor Vanda Lamm, Professor István Kukorelli, Professor Barnabás Lenkovics, Gábor Kovács, András Lapsánszky, Istvánné Hágelmayer and László Milassin. Hereby, I would like to express my deepest gratitude to all our supporters and supervisors on behalf of the researchers’ working group.

We do hope that our book will contribute to the better understanding of the legislative reforms aimed at the transformation of the Hungarian legal system and its results. It may serve elevated levels of professional and public debates that interested persons have access to information based on jurisprudential analysis.

Győr, 29 June 2013

Péter Smuk

Editor

Book I

The Transformation of the System of Public Law

Péter Smuk

In the Beginning There Was the Constitution…

The Hungarian constitutional system has been transformed significantly in the last three years. Although that change cannot be regarded as a “system change” compared to the one in 1989–1990, the constitution-making and further legislation provoked heated debates and criticism in Hungary and also all over Europe. The “reforms of the State” enjoyed the special attention of the European Union, Council of Europe and, generally, international public opinion. This paper introduces the Hungarian constitutional changes, taking a glance at the recent historical background (1990–2010) and the critics of the above-mentioned European organs. In Hungary not only are the traditional and European standards of several constitutional principles being re-interpreted, but the problem of sovereignty of constituent power within the European Union has also become a serious issue of concern.

1. Introduction—Constitutional changes 1989–2010

The opposition parties at the Hungarian Round Table negotiations in 1989 had three goals: 1) peaceful transition through free elections and the enforcement of new fundamental acts to this end, 2) guarantees that in case the Communist Party won the elections of 1990 it could not decide fundamental issues alone, and 3) as the communist government was starting to build a Constitution according to its views, the opposition wanted to stop this and to reduce the transitional legislation to the absolute minimum necessary.

The aim of peaceful transition was accomplished; nobody wanted any violent resistance or revenge. The agreement of the Round Table was not complete, the liberal parties (SZDSZ, Fidesz) and the historical ones (Smallholders’ Party, Social Democrats) rejected it; but the Parliament enacted the elements of the agreement. In the constitutional transition—uniquely in the post-communist region—a new Constitution was not formally adopted, but Act XX of 1949 on the Constitution gained some new content based on the principles of democracy and the rule of law.

The 1989 amendments to the Constitution of 1949 established a parliamentary type of government, with remarkable limitations on Parliament’s competences. Although the amendment of the Constitution remained relatively easy (the votes of a two thirds majority of MPs being all that was required, without referendum or any other actor), a large field of qualified majority legislation was set up. The Constitutional Court could examine and annul any legal norm, and what is more, the abstract a posteriori review could be initiated by anyone (actio popularis). The new preamble called the “text” of the basic law “temporary”, because everybody was sure that after the elections, as the Parliament gained real democratic legitimacy, a new Constitution would soon be drafted.

After the first democratic election, the Hungarian political elites failed to create the new basic law. The two leading parties in 1990, the governing MDF and the SZDSZ in opposition agreed (only) to comprehensive amendments to the Constitution again. They made the political system easier to govern, introducing the constructive vote of no confidence, the indirect election of the President of the Republic, and curtailing the scope of qualified majority legislation. After the transition, all of the governments included the adoption of a new constitution in their programme. The 1994 coalition of the Socialists and Liberals almost did it: they had the necessary majority, the professional background and also the support of (the major part of) the opposition. But the constitution-making failed again, because of disputes within the coalition. The Constitution was instead amended several times over the decades. Amendments required by international law, EU- and NATO-accession can be highlighted (the “Europe Clause” was enacted in 2002) during simple majority governments, while qualified majority governments enacted their own reforms in 1997 (mainly on the judiciary and referenda) and 2010–11 (elections, Constitutional Court, media, etc.).1

It is important to note that constitutionality in Hungary was built up not only by the legislature but also by the Constitutional Court. The Court used—and sometimes misused—its wide competences to show up and formulate the content of the rule of law principle.2 The achievements of the Court were basically sufficient to veil the absence of a new Constitution. What is more, the Court’s first president, László Sólyom declared that the Court’s decisions were letters of the “invisible Constitution” which prevails over the often amended visible one.3

„Lapozz bele!” módban ezek az oldalak nem érhetőek el.

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