EctHR Judgements in the Decisions of the Hungarian Constitutional Court

Abstract

The aim of this study is to explore the influence of the judgements of the European Court of Human Rights (ECtHR) on the case law of the Hungarian Constitutional Court on the basis of the analysis of thirty selected decisions. The Constitutional Court has a rather ambivalent attitude (to the references) to the ECtHR judgements. One of the approaches is that, based on the principle of pacta sunt servanda, the Constitutional Court should follow the Strasbourg case law and the level of protection of fundamental rights, even where this would not necessarily stem from its ‘precedent decisions’. In other decisions one can come across with arbitrary selection of ECtHR judgments or silent disregard of the Strasbourg case law. The Constitutional Court uses the ECtHR jurisprudence in its constitutional reasoning in a quite multicoloured and flexible way. Even when the ECtHR judgements have a very loose connection with the subject matter of the case before the Constitutional Court, it is not reluctant to rely on them. However, in the so-called common cases the Court not necessarily makes much use of the relevant ECtHR judgement or it is not decisive in itself. A large body of dogmatic considerations elaborated in the Strasbourg case law has become a part of the Hungarian constitutional law, which is reaffirmed case by case by the Constitutional Court. Nevertheless, it cannot be identified precisely what weight the Constitutional Court attributes to the ECtHR judgments.