The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law

Abstract

The rise of abusive constitutionalism in Central and Eastern Europe (CEE) has hit the domestic judiciaries particularly hard. Viktor Orbán expanded the size of the Constitutional Court and then packed it, made sure that he can install a new president of the Constitutional Court, ousted the Supreme Court president through a constitutional amendment, disempowered the existing judicial council and created the new institution with power over ordinary judicial appointments. Jaroslav Kaczyński followed the same playbook in Poland. While most scholars have focused primarily on effects of abusive constitutionalism upon the constitutional courts, we argue that the keys to the longterm control of the judiciary are presidents of ordinary courts and judicial councils. The dismissal of the Hungarian Supreme Court President is a perfect example of this logic-by this move Orbán got rid of the most important court president in the country, the head of the Hungarian judicial council and his most vocal critic. Yet, András Baka lodged an application to the ECtHR and won. This article analyses the Grand Chamber judgment in Baka v. Hungary, its implication for the rule of law, and the limits of what the ECtHR can achieve against abusive constitutionalism. It concludes that the Grand Chamber failed on all key fronts. It overlooked the main structural problem behind Mr. Baka's dismissal (the broad powers of court presidents in CEE), it has blurred the Convention's understanding of the concept of the rule of law, and it failed in delivering a persuasive judgment firmly based on the existing ECtHR's case law .

The limits of international adjudication: authority and resistance of regional economic courts in times of crisis

“…This inter-governmental stalemate does not create a supportive environment for either activating the CJEU or enforcing potentially audacious rulings. A potentially supportive environment could be created by the adjudication of the European Court of Human Rights on human rights violations in Hungary and Poland (Kosař and Šipulová, 2017). However, the CJEU's lack of interaction with these judgments further emphasises the importance of the distinction between RECs and regional human rights regimes, as pointed out in the introduction of this paper.…”

Special Courts for the Settlement of Regional Head Election Disputes in the Context of Realizing the Principle of Legal Certainty and Orderly Governane

“…In addition, there is no further legal remedy to amend the decision which already has permanent and binding legal force, except with the subsequent decision of the Constitutional Court. The parties who feel disadvantaged by the decision of the Constitutional Court, technically juridically, can only accept the empirical facts in accordance with the legal provisions for the settlement of requests for judicial review through the Constitutional Court (Kosař & Šipulová, 2018). Moving on from the description of the problem, of course the reason for the establishment of a special court to settle the results of regional head election disputes needs to be a separate study.…”

Talking Past Each Other: On Common Misperceptions in the Rule of Law Debate

“…11 The right-wing government of Orbán is often-and not without justification-blamed for arbitrariness and lacking respect for constitutional institutions. This instrumental use of the law, 12 a rule by the law and not that of the law (Chronowski and Varju 2016), is often connoted with legislative measures adopted in order to appoint the right (politically suitable) "chap" for the right job (The Economist 2019), such as packing the Constitutional Court, 13 the premature termination of the mandate of the President of the former Supreme Court of Hungary (Vincze 2015;Kosař and Šipulová 2018), or that of the Data Protection Ombudsman 14 by amending the constitutional provisions (see also Chapter 10). Nonetheless, this kind of meddling with independent institutions was not alien to the former socialist governments of 2002-2010 either (Vincze 2018a).…”