The application and interpretation of fundamental rightsin civil cases

date: 29 June 2021

location: Webinar (Budapest, Hungary)

presenters: Előd Bartis, David Sehnálek, Rok Dakar, Stefan Radojčič, Michał Derek, Márta Benyusz, Aida Bektasheva

moderators: -

themes: Romanian Constitutional Court; Czech Constitutional Court; Slovenian Constitutional Court; Republic of Serbia; Polish Constitutional Tribunal; Hungarian Constitutional Court; German Constitutional Court... more themes

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The online conference was held as a dissemination event relating to the research project on the ‘Interpretation of fundamental rights in Europe’, carried out within the framework of the Central European Professors’ Network coordinated by the Ferenc Mádl Institute of Comparative Law, the Hungarian Association for Comparative Law and the Central European Association for Comparative Law, and in cooperation with the Károli Gáspár University of the Reformed Church, Faculty of Law, Hungary.

The aim of the online conference was to explore how national ordinary courts, constitutional courts, supreme courts, or international courts, especially the European Court of Human Rights and the Court of Justice of the European Union (ECJ), apply and interpret fundamental rights in civil cases.

PhD students, young researchers, and lecturers coming from different countries of Central and Eastern Europe (Czech Republic, Hungary, Poland, Serbia, and Slovenia) gave research talks on the topic.

Előd Bartis, PhD student at the University of Debrecen presented two leading decisions of the Romanian Constitutional Court, both dealing with the conformity of certain provisions of the Romanian Civil Code with the Romanian Constitution. One of the decisions concerning an immigration case involved the application of EU law, therefore the Romanian Constitutional Court made a reference to the ECJ. The Romanian Constitutional Court declared constitutional the provision of Article 277 (2) of the Civil Code (“Marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners shall not be recognised in Romania.”) to the extent that it permits the granting of the right to reside in the territory of the Romanian state, under the conditions provided by the EU law, to spouses – citizens of the Member States of the European Union and/or citizens of third-countries – of same-sex marriages, concluded or contracted in a Member State of the European Union. In the other decision, the Constitutional Court found the provision of the Civil Code on persons not having the necessary capacity of judgment [Article 164 (1)] violating human dignity, equality of rights, and the constitutional rule protecting disabled persons.

David Sehnálek, lecturer at the Masaryk University, presented several decisions of the Czech Constitutional Court delivered in the field of civil law, especially family law and contract law. He revealed that taking into account that every case concerning a child was unique, it would have been difficult to speak of a binding precedential effect of the case law of the Czech Constitutional Court in family matters, contrary to other types of cases. As for the contract law, a certain amount of default interest, the use of contractual penalties, a certain combination of contractual terms may, under certain circumstances, violate the Constitution. This is so where the whole contract is either manifestly unfair or contrary to good morals. In consumer cases, the Czech Constitutional Court – referring to Article 38 of the EU Charter – undertook an activist role, which nevertheless does not correspond to the principles of the application of EU law as formulated by the European Court of Justice. The Constitutional Court has been inspired by the doctrine elaborated by the German Federal Constitutional Court, and as a result, the indirect effect of fundamental rights was introduced into civil law matters. He highlighted the fact that as a special feature of the Czech law the Constitutional Court often used pragmatic arguments, it intended to help the individuals concerned, and that the potential future consequences the decisions were often overlooked.

Rok Dakar, teacher assistant at the Maribor University, analysed the methods of interpretation used by the Slovenian Constitutional Court in commercial disputes. He concluded that the Court was especially keen to use its own case law to interpret constitutional provisions. In cases where the provisions interpreted were clear and concise, the Court also used the grammatical method of interpretation, but it never relied solely on it. Other interpretation methods were both far less common and bore far less weight. The types of arguments and principles used in argumentation were very similar in both commercial disputes and disputes of public legal nature (criminal and administrative) with the extensive use of the ECHR’s case law in criminal disputes being the one noticeable difference.

Stefan Radojčič, assistant at the University of Novi Sad, provided an analysis of the cases before the ECtHR, where the Court had held the Republic of Serbia responsible for the breach of fundamental rights in civil cases. The Law on Privatization contained a disputable provision regarding the enforcement of judgments, based on which the enforcement against the subjects of privatization was temporarily suspended (finally for more than a decade). The ECtHR in a number of cases concluded that the abovementioned situation led to the violation of the right to a fair trial and the right to property. The cases concerned the rights of former workers of the abovementioned entities who had waited for their salaries to be paid off for a long period of time.

Michał Derek (Jagellonian University) presented two decisions of the Polish Constitutional Tribunal in relation to medical law. The first decision concerned the consent to medical treatment granted to a minor. The second concerned the dilemma of the medical conscience clause. The speaker emphasised that at first glance the issue might have appeared to be related to public law, but the deeper investigation showed the civil consequences of the problem.

Márta Benyusz, PhD student at the Pázmány Péter Catholic University, delivered a speech on the enforcement of the ‘best interest of the child’ principle by the Hungarian Constitutional Court. She emphasised that according to the Committee of the Rights of the Child the best interest of the child in the threefold concept was a substantive right, a fundamental, interpretative principle, and a rule of procedure guiding decision-making processes. The obligation to consider the best interest of the child is very strong in wrongful removal cases and cases regarding visiting rights. These are cases that are typically discussed before the Constitutional Court. Referring to five decisions of the Hungarian Constitutional Court, she presented what role the best interest of the child played in the cases before the Court.

Aida Bektasheva, PhD Student at the University of Miskolc, gave a research talk on the relationship the between contract law and fundamental rights. Referring to the rulings of the German Constitutional Court and Article II of the Draft Common Frame of Reference, she presented legal theories on the direct and indirect effect of fundamental rights.

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