The study of Gábor Kardos surveys the international law aspects of the right to social security. After shortly sketching the history of this right, the author examines its appearance in international legal documents and pays special attention to the European practice, by presenting several cases of the UN and of the European Court of Human Rights. He clarifies to what extent can the right to social security be enforced at an international level.
Andrea Krizsán introduces in her study the anti-discrimination policy of the United States, from both theoretical and practical viewpoints. She surveys and evaluates the principles of anti-discrimination, and presents the relevant court practice. She differentiates three principles: individual different treatment, regular different treatment and regular disproportional effect. She discusses the theories about the origin of discrimination, and at the end of her study she analyses the practical realisation of the theories, how they can be utilised in the fight against discrimination.
The study of Bánki Dezső examines the various questions of verification of human rights from the viewpoint of linguistic philosophy. The tension between the theoretical declarations and the practical realisation is a familiar element of his writing. In his opinion this derives not only from geopolitics, but also from the unclear and unverified quality of the human rights' concept itself. The end of the study is seeking a way where this tension could be absolved.
The thought of human dignity is the Bible's intellectual heritage of God's picture - it is the title of our interview with theologian Marcell Mártonffy, on the communication within the Church, and its social activity. Among others the theologian says that the basics of the human rights thoughts come from the Jewish-Christian idea, therefore all the great human rights documents root in the Bible. In other words, the liberalism has developed from the Jewish and Christian tradition. He thinks that the dogma on infallibility of the Pope is behind time, and that it is a mistaken response to modernity. Perhaps it is to be explained with home affairs of the Vatican, but the canonisation of Pius the IX, father of the infallibility-dogma this September was an unsuccessful step backwards from several aspects, - from the church model of the II. Vatican that was open to more directions. Mentioning the information revolution, Mártonffy says that significant theologians are enthusiastic about the information society because it may enhance sensitivity for the real measure of human suffering day by day. The opportunity to choose from a wide and open information-source opens unbelievable dimensions of solidarity. Therefore instead of restricting information the purpose should be attaining a new Christian ascetic charisma, that can work out the spiritual techniques - in the good sense of the word. The aim is that the surprises of information do not fade away, but that man keeps the news in their own power, interiorise them and work them up. In his opinion the role of the world Church in the 21st century is - beyond stabilising the believers' community - solidarity with the non-Christians. This solidarity, that origins from the common and mystic dimension of our Christianity and the world, shall be really extensive. At stake shall be not the formation of a united and closed facade of churches with a strong doctrinaire emphasis, neither with a strong emotional or charity emphasis, nor in the
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spirit of the local tradition as the constantly valid message of the past, but rather breathing together with the world, where opening is not the result of a coerced secularisation.
This time we asked experts of social security, to what extent can the right to social security be regarded as a constitutional right, and which elements of it do they consider as important? For example, can the right to habitation be derived from it? What are the duties of the state and the local municipalities in realisation of certain elements of social security, and what are the means to enforce these rights, and who are the relevant persons to claim from? To what extent can the strict state provisions be regarded as an indirect discrimination e. g. those that punish arbitrary occupants of flats. Zsuzsa Ferge stressed among others that the increasing democratic deficit also jeopardises the improvement of social security. In her opinion the weakening of the rights and the intentionally discriminative allotments undermine the opportunities of social policy to integrate society and hinder social deconstruction. István Szikinger recognises when analysing the constitutional importance of social rights that enclosing second generation rights into the constitution might have its risks, but if public power does not recognise the legal claims expressed in legal rules, that is harmful, too. László Bihari thinks about the position of arbitrary occupants of flats that a speed proceeding has pressing interest, but in today's situation when right to social security is nothing more than a provision in the constitution this solution is not satisfactory, either from a constitutional, or from a human rights' aspect.
Gábor Halmai analyses three recent decisions of the Constitutional Court on the freedom of expression in his writing with the title "Protection of fundamental rights in withdrawal?" The decisions examine the constitutionality of the criminal law provisions restricting the freedom of expression: spreading of rumours (Dec. 18 of 2000 AB), violation of national symbol (Dec 13. of 2000 AB), and use of authoritarian symbols (Dec 14 of 2000 AB). Halmai surveys the practice of the Sólyom-court regarding freedom of expression and particularly its restriction with criminal law means, and states that it was partly influenced by the American practice, particularly concerning the clear and present danger test and statements of the case New York Times v. Sullivan. The other pattern followed by the Constitutional Court is the consequential practice of the European Court of Human Rights (ECHR). The practice of the Constitutional Court lead by chairman János Németh somewhat departs from this practice, what's more this departing is not consistent. In the case of spreading of rumours the Constitutional Court used the clear and present danger test and relied on statements of previous decisions. It established that the provision spreading of rumours is and unnecessary and disproportional restriction of freedom of expression and of freedom of press.
In connection with analysing the cases on national symbols and authoritarian symbols Halmai surveys the American, German and ECHR practice concerning prohibition of symbolic speech. In the light of this, he thoroughly and severely criticises the decisions of the Constitutional Court, which found both criminal provisions constitutional. According to the Constitutional Court decisions the national symbols are symbols that express belonging to the nation as a community, that are represented in the Constitution itself, and are outside the scope of plurality of
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opinions deserving constitutional protection. Concerning the use of authoritative symbols (swastika, red star) the Constitutional Court found the criminal prohibition of these as constitutional, too. The reasoning was that these symbols represent views irreconcilable with the Constitution, and that their use erects fear and dislike in people with a good reason, particularly in those people who suffered in the regimes symbolised by these symbols or their relatives. Halmai explains in detail in what way the two decisions depart from the earlier practice of the Constitutional Court, although it is severally referred to and in what way is the EHCR practice selected. In his standpoint these two decisions of the Constitutional Court mean a serious step back compared to the previous protection of freedom of expression. He specially emphasises the dissenting opinion of constitutional judge István Kukorelli in the authoritarian symbol case, which attacks the reasoning of the majority decision with its clear argumentation that is in concert with the previous constitutional court practice.
Péter Molnár analyses the Constitutional Court decision on the criminal provision prohibiting the use of authoritarian symbols from a special point of view in his article with the title "Substitute activity". The Constitutional Court found the law constitutional in its decision spring 2000. According to Molnár the decision interprets and applies the previous Constitutional Court practice on restriction of freedom of expression inconsistently. The real problem is, however, - he explains - that the prohibition narrows the possibilities of communication, and those of honestly facing the regimes symbolised by these authoritarian signs and the events occurred under these regimes. Instead of prohibition of symbols the consistent disapproval of all actual manifestation of exclusion and racism would be much more important, says Molnár.
This time this column deals with the conception of the future act on certain advantages due to Hungarian nationals living in the neighbour countries. László Öllős presents regarding the definition of the scope of persons that the decision on "who is Hungarian?" i.e. who shall be entitled to receive the advantages, the Hungarian community abroad shall be competent, and not the individuals. He calls attention to that the advantages listed in the conception do not effect the majority of the Hungarians living abroad. Tamás Korhecz also objects the way to define the scope of the entitled persons because according to the conception a foreign legal person would decide about domestic rights. Attila Varga calls attention to that the advantages might be exposed to the conjuncture situation, political intentions, and the goodwill of authorities, therefore they'd better grant rights to the Hungarians living abroad. Imre Papp thinks that the goal to impede migration as the individual's decision - which is the condition to get the advantages according to the conception - is not right. In his opinion a law on status is needed, that would widely regulate the rights of foreigners lawfully residing in Hungary.
About the latest decisions of the European Court of Human Rights Tamás Bán has made a summary. There are several cases in the presentation that might be useful for domestic lawyers and judges, showing how decisions similar to some others passed in Hungary in the past years are decided in Strasbourg.
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In this column we present the 3SZ Szociális Szakmai Szövetség (Social Professional Association) which came into life in 1994 through the unification of four organisations engaged in social policy. We publish two declarations of the Association, one about the speeded eviction of arbitrary occupants of flats, the other about the bill modifying the unemployed benefit. Two other articles are connected with these declarations: one is INDOK's submission to the Constitutional Court to which the Association has joined and that disputes the constitutionality of the procedure against arbitrary occupants of flats. The other article is an evaluation of the problems of the new regulation on the regular social aid by an officer of NEKI. (National and Ethnic Minority Office).
This time we present short analysis about Ronald Dworkin's new book, and about a volume that contains twenty-seven important decisions of the Hungarian Constitutional Court in English language. ■
Visszaugrás
