The primary concern of Eszter Polgári's essay is how and to what extent the European consensus analysis based on the comparison of national law is justifiable in the legal practice of the European Court of Human Rights. The Court has gradually restricted the margin of appreciation of member states, and one of the means of the protection of rights was the statement of consensus in national regulations. The cases decided on the basis of European consensus raise several questions: that the method of comparative research and the choice of member states is ambiguous, and often it seems that the research is more of justification than an interpretive method. The consensus is perfectly suitable to protect the Strasbourg Court from the charge of exaggerated activism, while by referring to the lack of harmony it is possible to avoid decision in cases where European society is divided.
Rick Lawson's writing reviews the measures that are employable by the Fundamental Rights Agency, and their relationship. It is obvious that the Agency first of all takes into account the EU Charter of Fundamental Rights, however, it also has to respect the European Convention of Human Rights and the constitutional traditions of member states. In questions of fundamental rights the last two are considered to be part of the legal order of the European Union by the EU Constitution, so nothing justifies their being neglected by the Agency in its procedure. The application of the European Convention raises the EU joining the Strasbourg system, although both the Commission and the Court leaves the question of member states' liability open. The issue of a followable measure is made even more difficult by the definition of the sphere of duties of the FRA, because if it involves only those fields where the member states carry out community law, then the Charter is authoritative. However, if the protection of human rights in general is examined on the level of member states, the employment of the European Convention is to be considered.
In an interview Lech Garlicki and Bostjan Zupancic, Judges of the European Court of Human Rights speak about how the entering into force of the European Constitution affect the Strasbourg protection of rights, and what the relationship of the European Court of Human Rights and the Luxembourg Court would be. It is also mentioned to what extent the lack of European consensus affects decision-making, and how the Strasbourg court employs the doctrine of the margin of appreciation. The two Judges also talked about what Protocol 14 would mean for Strasbourg procedures.
Lipót Höltzl, Agent to the Hungarian Government was asked about the duties of governmental representation, the debates surrounding Protocol 14 modifying the system of checks of the European Convention, and the possible effects of the new system of checks created by the Protocol.
One of the most important duties of the representation both in Hungarian legislation and legal practice is to enforce the requirements resulting from the Convention and its case law. It is not only Hungarian cases that have to be taken into account, but also the Court's decisions in the cases of other member states.
The last time the claim to the modification of the system of human rights protection of the ECHR arose was in relation to Protocol 14. The proposal, which
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was finally rejected, said that the ECtHR should not judge all complaints, but should select which cases could help to further develop the protection of human rights. Among others, Hungary did not support the proposal, as the system of legal remedy of several newly joined Eastern European member states is not yet on the level of being able to stop any individual mechanism of complaint.
Tamás Bán states that the ratification of the European Convention and incorporating it into the Hungarian law has taken place, and thus the Convention has become legally binding. However, the legislator did not make it clear to what extent the case law of the bodies of the Convention employing and defining the norm text binds the Hungarian legislative, Hungarian courts and others apply Hungarian law-particularly administrative bodies-who decide about rights secured in the Convention. Without a clear orientation it is not at all obvious to what extent a judge is bound by something that is neither a law, nor Hungarian precedent.
Gábor Magyar's writing points out that the case law of the Convention is hardly present in Hungarian judicial practice. Following the review of the thousands of judgments in Hungary between November 1992 and November 2004 it can be stated that the number of references to the Convention and its case law is only twelve.
Mónika Weller evaluates on it that according to data available for the public the Convention has only a very marginal role in the practice of Hungarian courts. Although there have been more and more among the judgments significant from the point of view of legal development and published in the Official Gazette, that refer to the Convention at least marginally when stating the conformity of the legal provision with the Convention according to the legislator, there have been no decisions in the past six years-or they were not deemed to be worth publishing-in which the Convention and its case law would have had a major role.
Zoltán Tallódi's writing emphasises that in certain fields in the court's system of legal protection there is much room for improvement. However, if we look around in the world of law we cannot find another international legal system that would protect the fundamental rights of people more effectively than the Convention.
Lilla Farkas is of the opinion that the Strasbourg way is unavoidable in cases where the Hungarian practice shows no changes despite efforts to change it. Examples can be custody and official misconduct. There are types of cases, however, where it is difficult to reach the court-stage, because after a time Hungarian officials make a decision that is favourable for the applicant. An example can be the practice of the immigration office in cases concerning the unification of families, which interprets the sphere of authority very broadly. Finally there are fields where the case law of the court is not pointing ahead. As such a field the author mentions racial discrimination.
The writings in this column comment on the decision of the Constitutional Court concerning drugs. Tamás Győrfi's writing examines on the one hand the "formal" causes of the decision, on the other hand the reasoning which directly concerns the right to self-determination, and finally he draws up some reflections on the authority of decisions of the Constitutional Court. Miklós Lévay's essay concentrates on the criminal political and criminal scientific bearings of drug politics and the problem of drugs. Among others Balázs M. Tóth examines the relationship of the resolution with the value neutral approach of fundamental rights.
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In his essay Thomas Willoughby Stone comments on a Strasbourg case, Fretté v. France.
In which the Strasbourg Court confronted the issue of whether France lawfully discriminated on the basis of sexual orientation in its adoption procedures. The comment argues that instead of applying the margin of appreciation and proportionality doctrine properly, the Strasbourg Court justified France's discriminatory treatment by using the precautionary principle, which was developed in the Luxembourg Court's practice.
The author argues that the precautionary principle was not only improperly applied by the Strasbourg Court, but it is inappropriate for deciding human rights cases.
In this column we present Protocol 14 of the ECHR and the modification of the Convention's system of checks, the order of the German Constitutional Court on the consideration of the decisions of the ECHR. We give a selection of the decisions of the Strasbourg Court, and sum up briefly some of the recent decisions of the Hungarian Constitutional Court.
Here we present the shortened Hungarian version of the 100 page English report made by INDOK on the state of fundamental rights in 2004 for the EU Network of Independent Experts on Fundamental Rights.
Our readers can find the writing of recently deceased Sándor Loss on the operation of a peculiar institution of "administration of justice", Romani Kris.
In the third writing of the column attorney Tamás Fazekas presents a case in which one of the Hungarian Civil Liberties Union's clients was accused of misuse of drugs by the police, but was found innocent in the procedure.
How could the idea of Pan-Hungarianism be accomplished and what solutions have been found in other states for the expression of togetherness with Hungarians beyond the frontiers? This is the basic concern of the volume of essays What Connects Us? Status Laws Near And Far. What permanent and temporary elements can the construction of national citizenship have? This is the topic of Judit Tóth' book Status Laws.
The central thought of Gábor Sulyok's book The Principle and Practice of Humanitarian Intervention is whether violence is employable for the suppression of atrocities claiming thousands of lives, and if yes, on what conditions? We recommend the volume The Dilemmas of Justice, published on occasion of the 75[th] birthday of Tamás Földesi, which just like the philosopher who has taught for fifty years now, is concerned with the problematics of law and morals, questions of the principle of justice, the relationships of political responsibility, rights and duties, and the theoretical problems of human rights. ■
Visszaugrás
