2025. évfolyam

The purpose of this article is to present the legal protection of detainees provided by constitutional courts in relation to fundamental rights enforced during the execution of criminal sentences. The research is based on certain decisions of the Hungarian Constitutional Court and the Italian Constitutional Court in the field of penitentiary law. The paper first examines the constitutional normative level (ie. the text of the Constitutions). After examining the relevant provisions (fundamental rights and constitutional principles), the article analyses the purpose of punishments, its constitutional implications, and the most important decisions related to punishments and to penitentiary law, by studying the constitutional jurisprudence. From a comparative perspective, the article seeks answers also to the following procedural differences: who can initiate the procedures of the constitutional courts, (if individual claims are possible or only judges can initiate the constitutional procedure), whether the constitutional right protection is on an abstract or concrete level, and if there is any requirement of exhausting prior legal remedies. By studying legal practice in the light of the latest developments, we can also find answers to the question of what competing fundamental rights and constitutional values can justify the restriction of fundamental rights of convicted persons, based on the case law of the two constitutional courts. Certain major decisions shed light on the latest developments and remedies that are available for the convicted people in order to seek constitutional protection. The article also shows what the role of the Constitutional Court can be in the protection of the fundamental rights of detainees. The research focuses mainly on the national constitutional level, therefore international law and EU law are not within the scope of the article.

This study, through an examination of thirty-five years of case law, demonstrates that the Hungarian Constitutional Court intervenes in internal parliamentary affairs only in instances of clear and direct constitutional violations. The analysis then places this approach in a comparative perspective by showing that the European Court of Human Rights has increasingly recognized parliamentary autonomy when assessing disciplinary sanctions imposed on members of parliament.

The Fundamental Law brought about a significant change in the powers of the Hungarian Constitutional Court with the introduction of the constitutional complaint against judicial decisions. While the Constitutional Court was previously only able to conduct a narrow review of the application of the law within the framework of ex post (abstract) norm control aimed at the objective protection of the constitutional order, this type of complaint provides an opportunity to enforce the rights guaranteed in the Fundamental Law when assessing compliance with the obligation of interpretation in conformity with the Fundamental Law. However, the concept of fundamental rights alone is not sufficient to define the extent of constitutional review, which is why the Act on the Constitutional Court limits the scope of review to violations of fundamental rights relevant from a procedural law perspective, in line with the remedial function of constitutional complaints. The basis for review is the obligation of interpretation in conformity with the Fundamental Law [Article 28 of the Fundamental Law], therefore I examine the subject matter of the review primarily in light of decisions that call this obligation into question. In addition, the Constitutional Court also reviews the correctness of legal interpretation and application, so the analysis also addresses the subject matter of the review in these cases. The study thus distinguishes between direct and indirect violations of fundamental rights and, in the context of a comparative legal analysis, seeks to answer the question of where the line is drawn between matters falling within the jurisdiction of the ordinary courts and those falling within the jurisdiction of the Constitutional Court.

Abstract

This study first undertakes to present the 2012 turning point affecting the powers of the Constitutional Court, followed by an introduction to the institution of the genuine constitutional complaint. It then examines – by drawing on comparative legal perspectives – the admissibility of EU fundamental rights standards in the context of genuine constitutional complaint procedures.

Keywords: caesura,… Tovább

Since its establishment in 1990, the Hungarian Constitutional Court has played a pivotal role in shaping legal thought and practice, not only within Hungary but also in the broader European constitutional landscape. Among its distinct contributions is the clarification of key legal concepts – most notably, national sovereignty, constitutional identity, and ‘essential state functions’ under Article 4 (2) TEU. In doing so, the Court not only safeguards the normative core of the Hungarian state but also constructs a framework through which the historical constitution becomes a foundational element of national identity and legal continuity. These elements are essential to understanding diverging Member State positions within the European Union, especially regarding contentious issues such as migration and integration. This research aims to explore the content and constitutional function of Hungary’s historical constitution, its relationship to sovereignty and identity, and how similar dynamics manifest in other Member States. Ultimately, this study engages with the broader question: how can the EU reconcile national constitutional identities with the demands of supranational governance?

When constitutional courts find a legislation in violation of constitutional provisions they need to proceed with caution. While removing unconstitutional legislation from the legal system is essential, temporal solutions may be needed especially if the annulment may leave a legal vacuum, in order to protect legal certainty, the rights of individuals, public interest, and also the effective enforcement of EU law. The latter may be of increasing importance especially since the constitutional role of the EU law is expanding. EU constitutional courts have adapted different regulatory solutions on the temporal effect of constitutional court decisions. Despite the differences, a common denominator seems to be a need for flexibility. The competences and case-law of the Hungarian Constitutional Court provide sufficient flexibility in all areas and allows all different interests to be taken into account, ensuring overall that its decisions protect the rule of law and do not even temporarily cause disruption or setbacks in the protection of fundamental values.