Gábor Attila Tóth's study characterizes authoritarianism by chronic shortcomings: narrowed political pluralism, absent or inadequate democratic institutions, denied or unenforceable fundamental rights, lack or shortfall of constitutional checks and balances, and oppression of non-governmental-organizations. Theoretically, as a form of autocracy, an authoritarian constitution can be positioned between totalitarianism and democratic constitutionalism. However, the author argues, the main features of authoritarianism are arguably incompatible with the values and principles of democratic constitutionalism and of limited constitutional government. Comparatively, the most important new feature of authoritarianism is that under a facade constitution it claims to be democratic. Authoritarian constitutional systems, however, prefer either official ideology (e.g. a certain religion) or pragmatic decision making (e.g. bureaucratic militarism) without the possibility of genuine elections. In such systems, running rival political parties is either hypothetical or restricted. In an authoritarian state citizens cannot choose freely and fairly among various competitors in elections. Authoritarian leaders typically exercise their constitutional power arbitrarily and disrespect both other branches of government and independent civil organizations. Therefore, the study concludes, authoritarian power holders are difficult to replace in a democratic way.
Judges have long struggled to shape existing legal frames in response to changing technology. András Sajó's and Clare Ryan's essay explores the process of judicial framing in response to the complex challenges posed by the internet. We first ask how judges develop analogies and metaphors to make sense of new technology. Then, we question whether the existing frames provide an adequate response to the modern world; specifically to the social consequences of the 21[st] century online experience. We demonstrate how, with regard to individual rights and the internet, a process of re-framing is occurring. Through this re-framing, some scholars and even lawmakers, have begun to reject traditional rights frames - like freedom of expression. This chapter illuminates the ways in which the current re-framing erodes the fundamental basis for free speech, thereby facilitating greater censorship.
Gábor Mészáros' essay discusses the phenomenon that most democracies often turn swiftly to law in a state of emergency. The ever-present danger is that the executive forces with the emergency powers in their hands might abuse democracy itself. Therefore the states in most cases need special measures to deal with emergencies. Those democracies that do not have such powers, use impromptu ones. In this essay he argues that those countries which do not have any special emergency measures in order to deal with emergencies, are also eligible to prevent democracy itself in a long term. The author examined the most known American example of this 'monist emergency model' and he made it clear that those liberal democratic emergency models which have standing constitutional or special legal powers, aren't the stand-alone solutions if we take into consideration the preservation of constitutional democratic values.
In her essay, Erzsébet Kadlót discusses access to secret investigative measures and procedures in the criminal process. She claims that the phase of evidence gathering in the criminal process is especially strongly interwoven with dangers for fundamental rights. On the basis of an analysis of the Hungarian criminal procedure law from both the historical and theoretical perspective, she concludes that Hungarian authorities apparently believe that secret measures and procedures work as panacea for all hurdles of crime prevention and detection. This not only lacks any basis in facts, but also results in the total erosion of rule of law and fundamental rights guarantees.
Balázs Elek examines whether the rules concerning the binding force ofjudicial decisions in the Act No. XIX of 1998 on the Criminal Procedure and in the draft of the new code comply with the requirements flowing from the constitutional principle of legal certainty. Barbara Koósné Mohácsi analyses the changing role of the lawfulness of the charge in Hungarian criminal procedure law from a human rights perspective. Ágnes Czine discusses the rules of the new draft of the code of criminal procedure and evaluates the regulation in light of the jurisprudence of the Hungarian Constitutional Court and the European Court of Human Rights.
- 177/178 -
Tamás Szigeti and Éva Simon analyze two ECHR decisions on online speech and argue that the MET judgement should be seen as a correction of the earlier decision in the Delfi case.
Attila Szabó comments on the amendment of the Asylum Act (in force from 1 June 2016), which terminated the integration support scheme for recognised refugees. The commentator concludes that this legislative change is a significant step backwards in the Hungarian refiigee integration policy and he highlights the fact that refugee status is itself abolished if its social dimension is abolished.
Petra Bárd discusses the decision of the CJEU in the case of Aranyosi and Căldăraru on the European arrest warrant. This is the first case where the CJEU elaborated a test on the exception from mutual recognition in the application of the framework decision for risks of human rights violation in the receiving member state. The author considers the risks in the particular cases (detention conditions in Hungary and Romania) rather clear, therefore it remains to be seen in the future how the Court would strike the balance between human rights and mutual recognition in less clear-cut circumstances.
In this column summaries of some of the recent decisions of the European Court of Human Rights, and the Hungarian Constitutional Court are presented. ■
Visszaugrás
