2021
Research on the interpretation of fundamental rights in Central and Eastern Europe Conversation with Zoltán J. Tóth Since the emergence of modern constitutionalism, fundamental rights have become increasingly important. The states of East-Central Europe, also as third generation countries of centralised constitutionalism, have faced challenges due to the specificities of their recent history, the problems of transition to a democratic rule of law, leaving behind the legacy of state socialism, which are substantially different from the problems that countries with first and second generation constitutional courts once (or now) have to solve, although they have many points in common. One of these commonalities is that, typically, new (or what can be considered as new) constitutions have been adopted immediately after the end of a dictatorial regime, which, in contrast to the previous situation, already provided for a wide range of human rights. Moreover, the enforcement of these rights was guaranteed everywhere; however, the different historical situations gave rise to different responses. This is why, at the end of 2020, a research group was set up at the Ferenc Mádl Institute in Budapest to study the constitutional court practice of six Central and Eastern European countries, including their decisions in relation to international law and the relevant decisions of the international fora referred to. The research team sought to answer the following questions: – What are the specific features of the common jurisprudence of the V-4 and the CEECs in the field of fundamental rights interpretation; what are the main differences? – What are the main main differences between the main European jurisprudence in these countries? What was the initial hypothesis of the research? Zoltán J. Tóth: The starting point of our research is the hypothesis that the constitutional courts established in the Central and Eastern European legal systems after 1990 or already existing before that date, but endowed with new powers enabling genuine constitutional adjudication, started to enforce human rights enshrined in the constitutions in a different context, with different historical experiences, under different social and economic circumstances, and under different legal and political conditions. It follows that they have thus approached fundamental rights in a different way from their Western and Southern European counterparts. Our hypothesis, which motivated the initiation of this research, was that a specific East-Central European system of fundamental rights protection could be detected, with a particular system of interpretation of fundamental rights that is specific to the East-Central European countries, but not necessarily to the European constitutional tradition as a whole. The latter was explored not through the jurisprudence of the constitutional courts of Western or Southern European countries, but through the practice of the European Court of Human Rights (ECtHR), which provided both an opportunity to detect general features of European constitutional culture (and to compare them with the features of the East-Central European constitutional culture) and to assess the specific legal problems of each East-Central European country in the light of the ECtHR’s practice. What was expected from the research? Zoltán J. Tóth: On the one hand, we expected our research to confirm our research hypothesis, i.e. to shed light on whether it is correct. Whether there is indeed, at least with regard to the methodology of interpreting fundamental rights, i.e. the procedural-formal issues that constitute the framework for solving substantive legal problems, a specific East-Central European conception. If so, how does it differ from the common European constitutional tradition of countries outside the region? On the other hand, we wanted to explore the similarities and differences between the constitutional jurisprudence and the interpretation of fundamental rights (and, more generally, the typical modes of constitutional reasoning) of the various Central and Eastern European countries (specifically the six countries we studied). Which countries were covered by the research? Zoltán J. Tóth: Six countries, the Czech Republic, Poland, Hungary, Serbia, Slovakia and Slovenia. Each of them was analysed by a recognised expert in the legal system of the country concerned. What exactly were the experts’ tasks? Zoltán Tóth: The experts’ task was to analyse the relevant national Constitutional Court practice in their own countries and to compare it with the practice of the European fora (ECtHR, CJEU) relevant to their country. What was the research
What was the methodology of the research? Zoltán Tóth: The basic method of the research was, on the one hand, the analytical method of case analysis for each country and, on the other hand, the comparison of the law in terms of the characteristics of the activities of the different fora. What criteria were used to select the domestic Constitutional Court decisions? J. Zoltán Tóth: The 30 domestic Constitutional Court decisions were selected on the basis of the criteria that they should be „important” cases and that they should originate from the last 10 years (2011-2020). The 10 years were the result of a practical compromise. Interview with Zoltán Tóth 49 What does this mean? Zoltán J. Tóth: As the research was intended to focus on contemporary fundamental rights interpretation in Central and Eastern European countries, it did not seem justified to include older decisions in the sample, as the results would not have been timely. On the other hand, a much narrower study period could not be defined because there was a risk that there were not enough „important” cases in a given country worth analysing. Why were 30 cases chosen? Zoltán Tóth: In determining the number of elements, we took as a basis that there should be as many cases as could be used to draw conclusions from a scientific point of view, but that could be processed during the period of the research (together with the other 30 ECtHR or CJEU decisions referred to in the Constitutional Court decisions). So, if I understand correctly, the 30-30 selected Constitutional Court decisions are all those in which there are references to ECtHR or CJEU decisions? Zoltán Tóth J.: Yes, exactly. It was essential that these international court decisions were taken into account in the national decisions. Are they accepted? Zoltán Tóth J.: No, it was not an aspect that the national constitutional court should agree with these decisions. It is possible for a national constitutional court to cite ECtHR decisions, for example, in order to decide a case on the basis of them or on the basis of the arguments they contain; but it is also possible that the constitutional court cites these decisions in order to explicitly state its disagreement with them; or to argue against them. Both attitudes were of equal interest to the research. What were the selection criteria for the ECtHR/ECtHR decisions? Zoltán Tóth J.: In order to keep the research limited, for each Constitutional Court decision, it was necessary to select one ECtHR/EECJ decision that was considered to be the most representative in the context of the legal issue at stake or that was considered by the national Constitutional Court to be the most important. The ECtHR, for example, as a quasi-precedent court, cites at length its own previous case law (and the same is the case for several Central and Eastern European constitutional courts). It is therefore possible that a national constitutional court itself cites several ECtHR decisions for the same case, which build on each other and reinforce each other. In fact, they contain the same arguments. In this case, it would have been neither necessary nor meaningful for the national researcher to analyse all of them; in particular because in these cases there is usually a leading case which contains all the substantive arguments that the ECtHR thinks about the legal problem at hand. Where and when can we read or find out the results of the research? Zoltán Tóth: The book containing the results of the research is expected to be published in November 2021, and we are planning to launch it at a major international conference on 30 November, with the participation of the research participants and other distinguished speakers, mainly foreign law professors and constitutional judges. Thank you for the discussion and we look forward to receiving a summary of the detailed analysis of the research!
