The first essay of this issue commemorates the 50th anniversary of the United Nation's Universal Declaration of Human Rights. Gábor Kardos in his essay reviews the historical process leading to the Declaration. He examines the reason of the lack of the international regulation of human rights after the First World War within the framework of the League of Nations. Kardos says, that arguments concerning the binding force of the Declaration may only be considered authentic if they refer to the aims laid down in the Charter of the United Nations. According to the Charter the United Nations Organisation aims at universal improvement in protecting human rights, and that members together and separately in co-operation with the UN take measures to achieve the same purposes. The contents of these sections are not specified by the Charter, but explained by the General Assembly in the Universal Declaration. In the last part of the essay the author analyses the relation between international and domestic law in respect of human rights.
The reorganised European Court of Human Rights in Strasbourg soon starts its operation. With the merger of the Committee and the Court a permanent judicial forum was created where petitions can be filed directly. This reform is viewed in a critical sense in the essay of Leo Zwaak. In the first half of the essay the author reviews the organisational and procedural regulations of the reorganised Court. He puts emphasis on reviewing the temporary regulations as well. In the following part the author criticises the reform, primarily because in his opinion it was not carefully considered. He admits that the old dream of an international court of human rights has been realized, where petitions can be filed directly by the citizens. On the other hand he thinks, that this reform has vanished a few valuable elements of the procedure. He misses the overview of the Convention, for example in respect of emergency regulations. He finishes his essay with the hope, that for further reforms we would not wait for another 50 years.
In connection with the Universal Declaration Tamás Földesi in his essay tries to answer which human rights can be considered as universal, and which belongs only to citizens. After reviewing the historical background of the question, the author examines the right to movement, the political rights and the ECOSOC rights. To illustrate the difficulties of drawing distinction between the two groups, he refers to the right to work. Altough the Hungarian Constitution defines this right as human right, the act on employment secures it only to the citizens. Tamás Földes proves through Hungarian and international examples that the difference between human rights and citizen's rights is substantial therefore its survival have to be faced in the near future.
In this column the opinion of two experts were asked on the govemment's proposed measures on the field of criminal law. Here in Hungary codification of criminal law is determined by the citizen's reaction - stated Endre Bócz, chief public prosecutor of Budapest in his interview to Endre Babus. Bócz states that the condition of public safety is not not so problematic as the public considers. In his opinion a real public hysteria goes on regarding this issue, that is why politicians indignantly reject the idea of learning to live together with crime. It is typical, the prosecutor says, that as a result of public pressure new institutions promising great
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results are introduced, meanwhile there is no money for practical adaptation. Talking about the aggravation of criminal law he expresses among others, that the new regulations to be introduced arc basically not conflicting with human rights which according to international convenrions may be restricted for the sake of fighting crime, It seems that in Hungary the prohibition to connect various data groups was introduced to hinder the investigation of crimes, - he says. About the proposal of governmental supervision over prosecution he says that the three models existing in Europe are equal, which opinion was also expressed in the draft recommendation of the Council of Europe. Besides the proposal also suggests the restriction of the government's right to direct the prosecution, although on the extent of such restriction opinions are still divided.
It's time to start establishing a league of citizens opposing the real life sentence - said attorney Balázs Orosz in the interview prepared by Gergely Fahidi. He also considers the fear from crime exaggerated, adding that without verdicts in organized crime cases it is pointless to talk about Draft-law on Anti Mafia. The existence of organized crime is indicated by various alarming phenomena, although the background of this situation is still unclear. The attorney thinks it is a natural ambition of every government to report the improvement of public safety condirions. In his opinion the presentation of the Draft-law on Anti Mafia indicates emergency legislation. It is still a question, whether under the influence of proposed law investigation of crimes becomes more effective, or not, and what is the price we have to pay for it. Orosz recommends that the conditions of probation should be more severe, although he does not consider that this is the best solution. He especially misses efforts on the field of crime prevention. He agrees to the opinion that it is not the severity of penalty in view what prevents people from committing crimes but the chance of getting arrested.
What is your relation to the Constitution; who is entitled to interpret and directly apply the Constitution? - these questions were asked well-known representatives of Hungrian legal circles, judges of the Conscitutional Court, ombudsmen, judges, public prosecutors, attorneys and theorists. In this issue four answers are published. László Majtényi, ombudsman for data protection, does not agree to the opinion that interpretation of the Constitution, moreover referring to the Constitution would be the privilege of the Constitutional Court. He made it clear that the Constitution may not be treared as the property of an institution of the Republic. András Holló, judge of the Constitutional Court, details issues of the scope of authority to interpret the Constitution. He emphasizes that in accordance with effective laws the right to declare violation of the Constitution lies exclusively with the Constitutional Court, although the right of judges to interpret the Constitution may not be contested. Albert Takács, professor of constitutional law, thinks that the proposition according to which the Constitution lays down the most essential rules of the separation of powers and human rights results in the fact that those being in a legally relevant connection with these elements of the Constitution are, in a certain sense, the guards of the Constitution. He states that Hungarian constitutional law has not yet exhausted the opportunities which, according to constitutional theory, could make certain bodies the perfect guards of the Constitution. Zoltán Lomniczi, Secretary General of the Supreme Court, is of the opinion that judges of regular courts are able to fulfill duties of jurisdiction concerning fundamental rights, namely the right to interpret and apply the provisions of the Constitution, and to base their decision on a specific section of the Constitution.
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In the first part of this issue the recominendation of the ombudsman for ethnic and minority rights is published on the homeless romani farnilies of Zámoly. Our commentator, Gábor Halmai, in his writing entitled Infringement of Constitution as a swear-word has drawn the conclusion, that the examination and measures taken by the ombudsman are of a remarkable importance regarding the protection of romani rights. However the author emphasizes that some parts of the recommendation's argumentantion are untenable in respect of constitutional law, because it qualifies several violation against the law as an infringement of the Constitution, therefore violating the normative content of constitutional rights.
In the second part of Documents and Commentaries a decision, passed by the City Court of Monor in connection with a discriminative job advertisement, is published. (The employer, also the respondent of the case wanted to employ a man not younger than 35 year old excusively.) The decision and the relating issues of constitutional law are analysed in three essays. Pál Sonnevend in his writing entitled Jurisdiction in connection with fundamental rights and its limits is of the opinion that private individuals are not directly obligated by fundamental rights included in the Constitution, therefore courts are not entitled to judge their cases with reference to constitutional provisions. At the same time Krisztina Kovács agrees with the decision of the City Court of Monor: according to her opinion private individuals have the right to sue with reference to infringement of their constitutional rights. Csilla Lehoczky Kollonay also evaluate the decision as a first step in the jurisprudence of the ordinary courts on the tieid of employment discrimination. She agrees with the decision concerning its constitutional arguments, but critisises the fact that the reasoning did not use the anti-discrimination clause of the Labour Code.
This time the column deals with the most substantial parts of the Draft-law on Anti Mafia. István Szikinger in his study examines whether the Draft-law in preparation complies with the principals of the constitutional state. By analysing the regulations on prostitution, on the control for crime prevention and regulations allowing the close-down of shops he establishes that the proposed amendment causes a disproportionate and unreasonable restriction of fundamental rights. Ferenc Kőszeg, President of the Hungarian Helsinki Committee critisises the provisions of the draft concerning empowering the Aliens Police against foreigners. Ferenc Zombor lawyer of the office of the ombudsman for data protection and freedom of information in his essay deals with the data protection problems of the draft law. Tamás Bán, director of the Ministry of Justice Department of International Law expresses his anxiety concerning the real life sentence. He examined the relating decisions of the Strasbourg Court, and established that a conclusion regarding the probable standpoint of the judging authorities in connection with the constitutionality and the lawfulness of real life sentence cannot be drawn from those decisions, as they were not passed on petitions filed against real life sentence. There is no doubt, that according to the view of respectable international forums life sentence withour hope of ever being freed is an unmerciful and inhuman penalty. Therefore the author suggests the conditions of probation to be aggravated. In his opinion such aggravation would as well secure prevention and determent from committing a crime while being in compliance with general requirements concerning human rights and the treatment of criminals.
Balázs Dénes writes about the proposed aggravation of criminal law regulations concerning drug use. The author draws the conclusion that more severe measures against drog consumers do not reduce harms caused by drugs. On the contraty,
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these measures lead to the imprisonment of drug consumers needing help and medical treatment, and at the same time it does not provide for an efficient protection against the beneficiaries of drug trade.
Selecting from the decisions of the European Court of Human Rights, Tamás Bán details some of the most recent decisions on the right to life, the due process and the prohibition against double jeopardy. Botond Bicskey reviews two decisions recendy passed by the Constitutional Court. One of the opinioris established that the Constitutional Court has no right to consider the complaint, if the petitioner withdraws it. The other opinion examined the relarion between extraordinary remedies and the constitutional complaint in connection with a case of labor law. It stated that the infringement of the fundamental right took place in the course of extraordinary procedure, so the deadline to filc the constitutional complaint starts from the date when the decision passed in the extraordinary procedure is delivered to petitioner.
In this column Alba Kör and the 'Egyenlő Esélyek Titkársága' (Secretariat of Equal Opportuoities) introduce themselves, each of them analyzing an interesting issue experienoed during its practice. Tamás Csapody, the leader of Alba Kör - Movement for peace without violence, in his writing entitled Recruited citizens reports on the Hungarian experiences of civil service, its long term of service objected by them, and on the controversial operation of conscience-examining committees. The Secretariat for Equal Chances has recently taken legal action against discriminative job advertisements. The court of first instance decided in favor of the claimant represented by the Secretariat, which could establish a precedent in Hungarian jurisdiction. Tamás Gyulavári details in his writing the experiences and the probable social effects of the procedure. Anna Betlen, member of the Secretariat wrote a critical study about the provisions of the Draft Anti Mafia concerning prostitution. She argues that the concept of the draft law is unacceptable beacuse it represents the first step towards the legalisation of prostitution, which violates the human rights of women.
In this issue we introduce the Hungarian edition of the book from Monroe E. Price, Professor of Media Law at the Cardozo Law School in New York entitled Television, the public sphere and national identity, which is the first monography on western media law published in Hungarian. We recommend our readers the book entitled Modern political philosophy edited by Ferenc Huoranszki which inciudes excellent essays written by the most famous foreign authors. Recendy published books by Hungarian authors on legal philosophy and human rights are also reviewed: we introduce Constitutional values and constitutional jurisdiction by Antal Ádám, a monography entitled Prohibition of discrimination in the practice of the European Court by Miklós Király and Police in a democratic constitutional state by István Szikinger. Finally we draw the reader's attention to the English CD-ROM brought out by the Hungarian Helsinki Commirtee entitled Police in transition, which reviews the transition and the present condition of police in post-communist countries through studies on each country and introduction of domestic laws. ■
Visszaugrás
