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Interpretation of fundamental rights in the practise of the constitutional courts of Central and Eastern Europe

Start of the event

2021. 06. 23.

End of the event

2021. 06. 23.

Venue

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. Given the pandemic situation, the conference was held in a hybrid form, with presenters and the audience present both, in person and remotely.
The conference aimed to provide comprehensive insight into the interpretation of fundamental rights by presenting the experience of constitutional courts of Central and Eastern Europe. Fundamental rights are crucial for Europe in the 21st century, particularly in light of the COVID-19 pandemic. Accordingly, three key issues were reviewed at this conference: (a) an introduction to the constitutional courts of each country (historical background, organisation and structure of the courts, rules of procedure, main functions, etc.); (b) the role of constitutional courts in the interpretation of fundamental rights; and (c) the impact of the COVID-19 pandemic on the interpretation and restriction of fundamental rights in the case law of the constitutional courts. The third point is particularly relevant today, because tackling the state of emergency caused by the COVID-19 pandemic and guaranteeing people’s right to life and health require restrictions on certain fundamental freedoms.
The conference assisted to elucidate the similarities and differences between the practice of constitutional courts in the Central and Eastern European region in relation to the interpretation of fundamental rights. In conclusion, constitutional reasoning differs across countries in the Central and Eastern European region, and neither the ECtHR, nor the ECJ, has unified constitutional reasoning in Europe. The differences in constitutional reasoning in the analysed countries are mainly based on historical and institutional differences. To put it briefly, currently there is no such thing as a typical Central and Eastern European style of constitutional reasoning as such but there are important similarities among the concerned countries. Recognising and referring to each other’s practice based on common traditions could be an important step forward for the Central and Eastern European constitutional courts.
The opening speech of the conference was held by Prof. Dr. János Ede Szilágyi, the Head of the Ferenc Mádl Institute of Comparative Law, in which he greeted the speakers. After the opening, 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 speaker was Tanja Karakamisheva-Jovanovska from North Macedonia (a former member of the Venice Commission). In her presentation titled ‘Fundamental Rights Seen Through the Interpretative Pluralism Box’, Tanja Karakamisheva-Jovanovska revealed the similarities and differences between the case law of the Constitutional Court of the Republic of North Macedonia, the ECtHR and the ECJ with regard to the interpretation of fundamental rights. The professor emphasised in her presentation that further research on the constitutional courts’ methods of interpretation and explanation is considered to be critical because the methods of interpretation and explanation are not uniform and defined in the case law of the ECtHR and the ECJ, as well as in the case law of national constitutional courts. Because of this main conclusion and the beneficial discussion of the theoretical issues of this topic, the professor considered this conference highly important.
The second keynote speech titled ‘Methodology of constitutional reasoning and interpretation in the practice of domestic constitutional courts and European supranational courts’ jurisprudence, was given by Zoltán Tóth J. from Hungary (Károli Gáspár University, Budapest), in which he presented the

methodology and subjects on which the investigation of the research group was based. Based on 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 ECtHR and the ECJ; (c) the similarities and differences in the common jurisprudence of domestic constitutional courts and the analysed supranational courts (mainly the ECtHR). Based on this, the researchers analysed the case law of national constitutional courts and supranational courts.
Six performances by Hungarian, Polish, Czech, Slovak, Slovenian and Serbian speakers followed the plenary session in the second half of the conference. All of the speakers were distinguished experts of law from Central and Eastern Europe. Each speaker presented research on their own country, which was discussed within the framework of a debate after the second session. The following experts gave presentations 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 particularities of constitutional reasoning unique to each country.
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 it has an ambivalent view towards the ECtHR’s decisions, with certain Justices heavily criticising the ECtHR. When interpreting the Fundamental Law, the Constitutional Court considers the obligations binding Hungary as a result of its membership in the European Union and under international treaties: the Fundamental Law should be interpreted in a manner that the content of the norm comply with European Union law to the extent possible. However, no rules or standards have been elaborated by the Constitutional Court governing which methods are permissible and how much weight should be given to certain methods. It should be emphasised that the Constitutional Court of Hungary traditionally considers the case law of the Federal Constitutional Court of Germany and the Supreme Court of the United States.
In his presentation, Piotr Mostowik emphasised the interaction between national and European tribunal jurisdiction in creating the content of fundamental standards resulting from normative principles applied by a given institution, and he also mentioned that constitutional interpretation may differ from ‘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 significantly differ from the reasoning style or decision template of the ECJ in similar cases. The presenter also highlighted that referring to the ECJ’s jurisprudence in the preparation of applications addressed to the Polish Constitutional Court has developed considerably in recent years. In all the discussed examples, the subject of interpretation was the normative content of the national constitution (including fundamental rights), as were the control templates (models and standards). The content of the control templates was often influenced by the interpretation of the European Convention on Human Rights delivered in the ECtHR judgements.
In light of David Sehnálek’s presentation, we can see similarities and differences in the interpretations provided by the Czech Constitutional Court and the ECtHR, and the fundamental differences between the Czech Constitutional Court and the ECJ. There are two key 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 that of the ECtHR in this regard; (b) logical (linguistic-logical) arguments have only minor effects, and there is surprisingly little explicit use of objective or subjective teleological interpretation. It should be highlighted that the Czech Constitutional Court is known for adopting an extensive approach to earlier case law (both its own and that of the ECtHR), to generalise it while paying less attention to the facts of the case. In her presentation, the Katarína Šmigová stressed that the Slovak Constitutional Court often refers not only to the case law of the ECtHR and Inter-American Commission on Human Rights (IACHR), but also to the case law of the constitutional courts of other countries in the context of external systemic argumentation. In this regard, the professor emphasised 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, as well as its origin and characteristics. The content and elements of the constitution’s material core are largely shaped by its interpretation, which in this form has an effect on the interpretation of fundamental rights.
In connection with the topic, Benjamin Flander emphasised that the characteristics of decision making of the Slovenian Constitutional Court are largely determined by the type of the case, while the style of constitutional reasoning is determined by where it is located in the statement of reasons in the final decision. The presenter also pointed out that the Slovenian Constitutional Court’s style of reasoning is typical: the Constitutional Court applies different conventional tests, standards, arguments and formulas, and the Constitutional Court sometimes combines a wide range of different methods of legal interpretation. Some methods and arguments and their subtypes frequently appear together, while others are often deployed as strengthening methods in the case law of the Constitutional Court.
Two main remarks need to be made regarding the presentation delivered by Slobodan Orlović. First, the overall conclusion arising from the analysed Serbian Constitutional Court judgements is that the arguments and interpretive methods deployed are not particularly diversified, and that the Constitutional Court (out of the nine major methods altogether) often uses only a few. In terms of decisive arguments, it is possible to recognise the decisive argument or arguments in each decision, but those that could ‘strengthen’ the decisive argumentation—the defining, strengthening and illustrative arguments—were either non-existent or rare. Furthermore, the reasoning of Constitutional Court decisions are articulated in a way that makes it difficult to distinguish these ‘auxiliary’ arguments from each other. Second, when deciding on constitutional complaints, the Constitutional Court usually deploys several different arguments. We can categorise them into those that are frequently used (the external systemic and comparative law arguments and the domestic arguments) and those that are either never employed in decision making or used only sparsely.
In his closing remarks, Prof. Dr. János Ede Szilágyi, 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 practices in the future.

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Presenters

Prof. Dr. János Ede Szilágyi
Dr. Anikó Raisz
Dr, Miskolczi Bodnár Péter
Dr. Paczolay Péter
Dr. Marcin Wielec
Prof. Dr. Tanja Karakamisheva-Jovanovska
Prof. Dr. Zoltán Tóth J.
Prof. Dr. Benjamin Flander
Prod. Dr. Piotr Mostowik
Dr. Slobodan Orlović
Dr. David Sehnálek
Dr. Katarína Šmigová
Dr. Bojan Tubić
Dr. Adél Köblös

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