Although Hungary’s legislation on the protection of minorities is generally considered advanced and comprehensive, gaps remain to be filled and dysfunctional elements to be sorted out by the Constitutional Court. Based on the evaluation of the relevant case law, however, the contribution of Hungary’s supreme judicial body in the protection of minorities seems much less significant than expected. The general attitude of the Consti-tutional Court towards minorities is characterized by a complete lack of judicial activism.
In fact, the Court avoided to address head-on the petitions whenever possible, usually on the grounds that they did not contain a specific constitutional problem, the regulation of the matter in question belongs to the legislator’s competence, or, that it is not up to the Court to deal with practical issues. Although the Court many times had the opportunity
108 Ibid. [28]
109 Under the previous legislation (cf. Article 1(1) of the 1993 Minorities Act), only Hungarian citizens were possibly considered as minorities. In 2014, the scope of the Nationalities Act was extended to foreign nationals residing in Hungary. Cf. the original Article 170(1) of the Nationalities Act which was repealed by Article 238.
d) of the same act as of 29 July 2014.
110 After this paper had been submitted, the Constitutional Court adopted a new decision on the language use of nationalities in judicial and administrative proceedings: Decision 2/2012 (I. 7.) AB, 15 December 2020. For a summary of this case, see Márton Sulyok’s chapter in this volume.
to exercise its legal power to conduct ex officio examination or to extend the scope of the submission because of the factual context, it very rarely did so (a welcome exception is Decision no. 58/2001).
As I have already proven in the first study of my research,111 the Court failed to provide a constitutional interpretation on the concept of minorities and precise guidelines on iden-tifying persons belonging to national minorities, that is, the very subjects of minority rights, which are in fact unavoidable first steps in the process of exercising minority rights. As for individual minority rights, the same judicial restraint can be seen. In most cases, the Court used a circular reasoning, conveniently relying on definitions provided by the Minorities/Nationalities Act or other sectoral laws, instead of providing its own interpretation based on the Constitution/Fundamental Law. The Court many times prac-tically gave a free hand to the legislator, such as concerning the legal status of minority self-governments or the parliamentary representation of minorities. As regards the latter, the Court not only did not move the issue forward, but with its contradictory decisions it might have even contributed to the prolonged settlement thereof.
Another shortcoming of the Court’s minority-related jurisprudence is that it is not built upon the valuable experience of international minority protection mechanisms (except in a handful of cases after 2012). This is worrisome because Hungary is party to all rel-evant multi- and bilateral treaties on minority rights, therefore there are legally binding international obligations that the State has to consider when adopting and implementing laws on minorities. Disregarding the applicable international standards is “theoretically undesirable and in practice creates serious problems”.112
Besides referring to the legislator’s wide discretion in choosing how to fulfill its consti-tutional obligation, the Court’s other favorite tactics is procrastination. Many times the Court delayed the adoption of its decision until eventually the legislator remedied its unconstitutional omission or amended the challenged provision in the desired direction, therefore the Court could completely avoid addressing the issue on the merits. This un-willing attitude is further testified by the fact that in almost 100% of the cases the Court rejected the petition, whether it was submitted in favor of or against minority interests.
So the Court is not hostile towards minorities, rather it is neutral: it preferably stays away from the politically sensitive issues of minority protection like a cat from hot porridge.
Of course, it is a defensible position that judicial activism by constitutional courts is not at all desirable. In my opinion, however, this is not the case with minority protection. First of all, due to their small numbers, Hungarian nationalities do not have sufficient capacity to assert their interests; politics can easily neglect their wishes. Secondly, international legal standards for minority protection are much more flexible than human rights in gen-eral, thus the discretion of the legislator in regulating minority rights is much wider than in the case of other human rights. Thirdly, the possibilities for enforcement are much more modest, as for most minority rights the final forum is the Constitutional Court, while for the protection of other human rights, victims can easily turn to the European Court of
111 nagy 2020.
112 Justice Kovács’s dissenting opinion to Decision 45/2005. (XII. 14.) AB, III/2/1.
Human Rights (ECtHR) or other international fora. In turn, a complaint can be filed with the Strasbourg court only for violation of a right enshrined in the European Convention on Human Rights or any of its Additional Protocols, therefore the ECtHR’s minority-re-lated case law is essentially based on the prohibition of discrimination, it is rather limited and, in case of minority language rights, practically non-existent.113
Considering the above, it is quite disturbing that the Constitutional Court has so far failed to define the constitutional minimum standards for the protection of minorities. The defi-ciency is becoming more and more acute, since Hungary undertook extensive internation-al commitments to protect nationinternation-al minorities and minority languages more than twenty years ago. Finally, the Constitutional Court’s prominent role in public life puts it into the best place to convey the message to both the minority and majority members of the soci-ety: minority rights are indeed worth protecting and promoting.
113 Noémi nagy: Language rights as a sine qua non of democracy – a comparative overview of the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. In:
Central and Eastern European Legal Studies, 2018/2, pp. 247–269.
Anikó Szalai:
1Mapping the implementation of minority protection in Central European countries by the Council of Europe
21 . Introduction
This article examines the implementation of the 1995 Framework Convention for the Protection of National Minorities (FCNM) in relation to six Central European states, namely Serbia, Croatia, Slovenia, Hungary, Slovakia and Romania.3 Focus is placed on the development between the period of the first report and the last report, which arches over approximately twenty years. All six countries have similar historical-political back-grounds, starting with the close relationship in the Monarchy of Austria-Hungary, later being communist-socialist countries until the end of the Cold War. This generally means similar legal heritage, while in the field of minority protection significant differences can be identified. Owing to the 1920 Peace Treaty of Trianon, after World War I, there was and there is still an inherent difference between the political objective and understand-ing of minority protection in these countries. Another factor influencunderstand-ing the present-day situation is that while Slovakia, Romania and Hungary experienced a generally peaceful regime change, the dissolution of Yugoslavia was heavily burdened by armed conflicts.
The imprint of that is still visible in the reports on Serbia, Croatia and Slovenia, and in parallel in the opinions of the Advisory Committee of the Council of Europe on the imple-mentation of FCNM. A common issue among all six states is the dire social and economic situation of the Roma community, including discrimination in the field of work and work condition and segregation in the field of education.4
Owing to the closer relationship, first Serbia, Croatia and Slovenia are examined, then followed by Romania, Slovakia and finally Hungary.
1 PhD, associate professor, Head of International and Regional Studies Institute, Faculty of Law, University of Szeged
2 The research for this paper has been carried out within the program Nation, Community, Minority, Identity – The Role of National Constitutional Courts in the Protection of Constitutional Identity and Minority Rights as Constitutional Values as part of the programmes of the Ministry of Justice (of Hungary) enhancing the level of legal education.
3 For an analysis on the first twenty years of the application of the FCNM, see e.g.: Erzsébet S. Szalayné: A nemzetközi jogi kisebbségvédelem színe és fonákja: 20 éves a Kisebbségi Keretegyezmény. [The color and background of the protection of minorities in international law: the Framework Convention for Minorities is 20 years old.]. In: Közjogi Szemle, 2018/1, pp. 11-15.
4 For detailed analyses of the situation of Roma in Europe see e.g.: Anikó Szalai: Protection of the Roma Minority under International and European Law. The Hague, Hollandia: Eleven International Publishing, 2015