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Interpretation of fundamental rights in the practice of the constitutional courts of Central and Eastern Europe
2021.06.23. @ 10:00 - 17:00
Summary Report on the conference
The conference entitled ‘Interpretation of fundamental rights in the practice of the constitutional courts of Central and Eastern Europe’ was organised as part of the Central European Professors’ Network (CEPN) 2021 event by the Ferenc Mádl Institute of Comparative Law, the Central European Association for Comparative Law and the Hungarian Association for Comparative Law. Having regarded the pandemic situation, the conference was held in hybrid form: presenters and the audience were present both in person and virtually as well.
The conference was aimed to providing a comprehensive sight the interpretation of fundamental rights by presenting the practice of the constitutional courts of Central and Eastern Europe. The issue of fundamental rights is crucial for Europe in the 21st century, particularly in light of the COVID-19 pandemic. Accordingly, three key issues reviewed at this conference included: (a) an introduction to the constitutional courts of each country (historical background, the organisation and the structure of the courts, rules of procedure, main functions, etc.); (b) the role of the constitutional courts in the interpretation of fundamental rights; (c) the impact of the COVID-19 epidemic on the interpretation and restriction of fundamental rights in the case law of the constitutional courts. The latter topic is particularly important nowdays, because tackling the state of emergency caused by the COVID-19 epidemic and guaranteeing people’s right to life and health require restrictions on certain fundamental freedoms.
The conference was contributed to throw a light upon similarities and differences between the practice of the constitutional courts in the Central and Eastern European region in relation to the interpretation of fundamental rights. In conclusion, the style of constitutional reasoning differs from country to country in the Central and Eastern European region and in Europe, neither the European Court on Human Rights (ECtHR), nor the European Court of Justice (ECJ), has unified the style of constitutional reasoning. The differences in constitutional reasoning in the analysed countries are mainly based on historical and institutional differences. So, to put it shortly, currently there is no such thing as a tipically Central and Eastern European style of constitutional reasoning. At the same time, knowing and referring to each other’s practice which is based on common traditions could be an important step forward for the constitutional courts of the Central and Eastern European region.
The opening speech of the conference was held by Prof. Dr. János Ede Szilágyi, the Head of the Ferenc Mádl Institute of Comparative Law, who in his opening speech greeted the speakers. After the opening of the conference, Anikó Raisz (Minister of State for Administrative Affairs, Ministry of Justice), Péter Paczolay (Honorary President, Hungarian Association of Law and Political Sciences), Péter Miskolczi-Bodnár (Dean, Károli Gáspár University, Budapest) and Marcin Wielec (Head of the Institute of Justice, Poland) also welcomed the participants.
There were two keynote speeches at the conference. The first presenter was Tanja Karakamisheva-Jovanovska from North Macedonia (former member of the Venice Commission). In her presentation – called the ‘Fundamental Rights Seen Through the Interpretative Pluralism Box’ – Tanja Karakamisheva-Jovanovska showed the similarities and differences between the case law of the Constitutional Court of the Republic of North Macedonia, the European Court on Human Rights (ECtHR) and the European Court of Justice (ECJ) with regard to the interpretation of fundamental rights. The professor emphasized in her presentation that further research on the methods of interpretation and explanation of constitutional courts are considered to be very important because the methods of interpretation and explanation are not uniformed and defined in the case law of the ECtHR and the ECJ, as well as in the case law of the national constitutional courts. Because of this main conclusion and the useful discussion of theoretical issues of this topic, the professor considered this conference very important.
The second keynote speech – called the ‘Methodology of constitutional reasoning and interpretation in the practice of domestic constitutional courts and European supranational courts’ jurisprudence’ – was held by Zoltán Tóth J. from Hungary (Károli Gáspár University, Budapest) and he presented the methodology and the subjects of the research. According to this, the research seeks to answer three main questions: (a) the similarities and differences in the interpretation practices of fundamental rights in the concerned Central European countries; (b) the relevant legal practices of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ); (c) the similarities and differences between the domestic constitutional courts’ common jurisprudence on the one hand, and the analysed supranational courts (mainly the ECtHR) on the other hand. Based on this, the researchers analyzed the case law of the national constitutional courts and supranational courts.
After the plenary session – in the second half of the conference – there were six performances by Hungarian, Polish, Czech, Slovak, Slovenian and Serbian speakers. The speakers all of them being distinguished experts of law in the Central and Eastern European region. Each speaker provided research on their own country, which was discussed within the framework of a debate after the second session. The following experts gave presentation at the conference: Adél Köblös from the University of Public Service (Budapest, Hungary), Piotr Mostowik from the Institute of Justice (Warsaw, Poland), David Sehnálek from the Masaryk University (Brno, Czech Republic), Katarína Šmigová from the Pan-European University (Bratislava, Slovakia), Benjamin Flander from the University of Maribor (Slovenia) and Slobodan Orlović from the University of Novi Sad (Serbia). The speakers focused on the national specificities of constitutional reasoning.
In her presentation, Adél Köblös pointed out that the Constitutional Court of Hungary accepts the level of legal protection provided by international legal protection mechanisms as the minimum standard for the enforcement of fundamental rights. The Constitutional Court generally accepted that the ECtHR provides a standard for the protection of human rights, but the Constitutional Court has an ambivalent attitude towards the ECtHR’s decisions, some Justices heavily criticise the ECtHR. In the interpretation of the Fundamental Law, the Constitutional Court takes into account the obligations binding Hungary on the basis of its membership in the European Union and under international treaties: the Fundamental Law should be interpreted – as far as possible – in a manner to make the content of the norm comply with the law of the European Union. However, no rules and system have been elaborated by the Constitutional Court on which methods are acceptable and how much weight has been attached to certain methods. It should be emphasized that traditionally the Constitutional Court of Hungary frequently takes into the case law of the Federal Constitution Court of Germany and the United States Supreme Court.
In his presentation, Piotr Mostowik emphasized the interaction between jurisdiction of national tribunal and European tribunals in creating the content of fundamental standards resulting from normative principles that are applied by a given institution and he also mentioned that the constitutional interpretation may differ from the “traditional” interpretation of the statutory law. In his opinion the reasoning style and decision template of a given national constitutional court as a principle does not extremely differ from the reasoning style or decision template of the ECJ in similar cases. The presenter also highlighted that referring to the jurisprudence of European courts as modus of drawing up applications and letters addressed to Polish Constitutional Court has developed a lot in the last years. In all the discussed examples the subject of the interpretation was the normative content of national constitution (including fundamental rights), as the control templates (models, standards). The content of the latter ones were often influenced by the interpretation of European Convention delivered in rulings of ECtHR.
In connection with the presentation of the Czech professor we can note that there are similarities and differences in the interpretation provided by the Czech Constitutional Court and the ECtHR, and fundamental differences between the Czech Constitutional Court and the ECJ. There are two main similar elements: (a) the Czech Constitutional Court has reached a stage where it can work a large body of its own case law and its work is similar to the ECtHR in this sense; (b) rather marginal effects of logical (linguistic-logical) arguments and surprisingly also minor explicit use of objective or subjective teleological interpretation. It should be noted that it is typical of the Czech Constitutional Court to adopt an extensive approach to earlier case law (both its own and that of the ECtHR), to generalise it and, at the same time, take lesser consideration of the facts of the case.
In her presentation, the Slovak professor emphasized that the Slovak Constitutional Court in many cases refers not only to the case law of the ECtHR and Inter-American Commission on Human Rights (IACHR), but also to the constitutional courts of other countries’ case law in the context of external systemic argumentation. In this connection, the professor emphasized that the Slovak Constitutional Court usually refers to the case law of the Czech and German Constitutional Courts. The presentation also discussed the material core of the Slovak constitution and its origin and characteristics. The content and elements of the material core of the constitution are largely shaped by the interpretation of the constitution, which in this form also has an effect on the interpretation of fundamental rights.
In connection with the topic, the Slovenian professor emphasized that the characteristic of decision-making of the Slovenian Constitutional Court depends largely on the type of the case, while the style of constitutional reasoning depands on which segment of the statement of reasons in the final decision it is situated. The presenter also pointed out that the Slovenian Constitutional Court’s style of reasoning is a typical style of reasoning: Constitutional Court applies of different typical tests, standards, arguments and formulas and the Constitutional Court sometimes combines wide range of different methods of legal interpretation. Some methods and arguments and their subtypes tipically appear together, and others are most often deployed as strengthening methods in the case law of the Constitutional Court.
Two main remarks need to be made about the presentation of the Serbian professor. Firstly, the general conclusion arising from the analysed Serbian Constitutional Court judgements is that the arguments and interpretive methods deployed are not so diverse, but that the Constitutional Court (out of the nine major altogether) most often used a few. As for devisive arguments, it is possible to recognise the decisive argument or arguments in each decision, but when it comes to other ones that should „strengthen” the decisive argumentation – the defining, strengthening and illustrative arguments – they were either non or rare. Additionally, the reasonings of Constitutional Court decisions are articulated in a way that is not making it easy to distinguish these „auxilary” arguments from each other. Secondly, deciding on constitutional complaints, the Constitutional Court usually deploys several different arguments and methods of legal interpretation. We can divide them into those frequently used (the external systemic and comparative law arguments and the domestic arguments) and other arguments and methods found to either never have been used in decision making or used only sparsely.
In his closing remarks at the end of the conference, Prof. Dr. János Ede Szilágyi, the Head of the Ferenc Mádl Institute of Comparative Law thanked all the speakers for their participation, and highlighted the opportunities for the constitutional courts of the Central and Eastern European countries to refer to each other’s practice in the future.
The videos of the conference can be found below