One of the basic principles in civil contested procedure is the principle of publicity. Our aim in this scientific paper is to address this principle from all legal points of view in order to make a concrete review of what the principle of publicity in civil contested procedure implies, and how this principle is guaranteed based on legal acts, since in order to have regular judicial process it is necessary to respect all rights and procedures that are guaranteed by legal acts, and among them the principle of publicity plays a key role. The importance of this scientific paper consists in how it addresses several comparative legal aspects regarding the principle of publicity as a constitutional category under Article 6 (1) of the European Convention on Human Rights, and in the legislations of Kosovo, Albania, and North Macedonia. We also address the principle of publicity as a fundamental principle in civil contested procedure, the violation of legal rules related to publicity, and the exclusion of the public from trial. Therefore, bearing in mind the importance of the right to a fair trial, we address the principle of publicity, with special emphasis on contentious civil proceedings.
{"title":"The principle of publicity as a constitutional category with special focus on civil contested procedure","authors":"Rrustem Qehaja, A. Ajeti","doi":"10.1556/2052.2022.00309","DOIUrl":"https://doi.org/10.1556/2052.2022.00309","url":null,"abstract":"\u0000 One of the basic principles in civil contested procedure is the principle of publicity. Our aim in this scientific paper is to address this principle from all legal points of view in order to make a concrete review of what the principle of publicity in civil contested procedure implies, and how this principle is guaranteed based on legal acts, since in order to have regular judicial process it is necessary to respect all rights and procedures that are guaranteed by legal acts, and among them the principle of publicity plays a key role. The importance of this scientific paper consists in how it addresses several comparative legal aspects regarding the principle of publicity as a constitutional category under Article 6 (1) of the European Convention on Human Rights, and in the legislations of Kosovo, Albania, and North Macedonia. We also address the principle of publicity as a fundamental principle in civil contested procedure, the violation of legal rules related to publicity, and the exclusion of the public from trial. Therefore, bearing in mind the importance of the right to a fair trial, we address the principle of publicity, with special emphasis on contentious civil proceedings.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47825115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper deals with the publications of Elemér Pólay before and during WW2. It seeks to analyse them in their context, embedded in their contemporary political and academic environment. It focuses on one of Pólay’s early works, entitled ‘The German National Socialist Conception of Law and Roman Law’ (1938). Pólay’s paper is a valuable source on the academic situation in Hungary in the 1930s and 1940s, on the views of young scholars around Paul Koschaker in Berlin, and, indirectly, on Koschaker’s personal views concerning the National Socialist party’s manifesto.
{"title":"Thoughts on Elemér Pólay’s early work: National socialism and Roman Law","authors":"Éva Jakab","doi":"10.1556/2052.2021.00335","DOIUrl":"https://doi.org/10.1556/2052.2021.00335","url":null,"abstract":"\u0000 The paper deals with the publications of Elemér Pólay before and during WW2. It seeks to analyse them in their context, embedded in their contemporary political and academic environment. It focuses on one of Pólay’s early works, entitled ‘The German National Socialist Conception of Law and Roman Law’ (1938). Pólay’s paper is a valuable source on the academic situation in Hungary in the 1930s and 1940s, on the views of young scholars around Paul Koschaker in Berlin, and, indirectly, on Koschaker’s personal views concerning the National Socialist party’s manifesto.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48155098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores substitute and supported decision-making in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD, adopted by the UN General Assembly in 2006, introduces a ‘paradigm shift’ in the regulation of legal capacity by endorsing the idea of universal legal capacity, i.e. that everyone, including persons with disabilities ‘enjoy legal capacity on an equal basis with others’. After examining the conceptual and regulatory issues surrounding substitute and supported decision-making and the requirements of the CRPD and the first General Comment of the UN Committee on the Rights of Persons with Disabilities (GC1), the paper proceeds to examine the regulations of the Mental Capacity Act 2005 (England & Wales) and the Hungarian Civil Code and their (non-)compliance with the CRPD and GC1.
{"title":"Paternalism vs. autonomy? Substitute and supported decision-making in England and Hungary","authors":"Antal Szerletics","doi":"10.1556/2052.2021.00333","DOIUrl":"https://doi.org/10.1556/2052.2021.00333","url":null,"abstract":"\u0000 This paper explores substitute and supported decision-making in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD, adopted by the UN General Assembly in 2006, introduces a ‘paradigm shift’ in the regulation of legal capacity by endorsing the idea of universal legal capacity, i.e. that everyone, including persons with disabilities ‘enjoy legal capacity on an equal basis with others’. After examining the conceptual and regulatory issues surrounding substitute and supported decision-making and the requirements of the CRPD and the first General Comment of the UN Committee on the Rights of Persons with Disabilities (GC1), the paper proceeds to examine the regulations of the Mental Capacity Act 2005 (England & Wales) and the Hungarian Civil Code and their (non-)compliance with the CRPD and GC1.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41785344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The ‘best interests of the child’ is a unique and broad principle of the United Nations Convention on the Rights of the Child and is frequently referred to by international courts. The European Court of Human Rights is nor an exception. This article examines which aspect(s) of the ‘best interests’ concept appears in the immigration case law of the Court and how it can provide protection for migrant children in precarious situations.
{"title":"The threefold concept of the best interests of the child in the immigration case law of the ECtHR","authors":"Nikolett Takács","doi":"10.1556/2052.2021.00317","DOIUrl":"https://doi.org/10.1556/2052.2021.00317","url":null,"abstract":"\u0000 The ‘best interests of the child’ is a unique and broad principle of the United Nations Convention on the Rights of the Child and is frequently referred to by international courts. The European Court of Human Rights is nor an exception. This article examines which aspect(s) of the ‘best interests’ concept appears in the immigration case law of the Court and how it can provide protection for migrant children in precarious situations.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42278571","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The new European rules on securitisation entered into force in 2019 with a view to revitalising the securitisation market. By introducing public law rules, the regulation intends to avoid the re-creation of the risks that played a role in the 2008–2009 financial crisis. The regulation, however, does not contain private law rules. Consequently, the substantive rules pertaining to securitisation will remain to be formed by the national laws of the Member States of the European Union. This paper argues that the ways in which non-assignment clauses are regulated in Member States will have a significant impact on the availability of securitisation.
{"title":"Non-assignment clauses as obstacles to true sale securitisations","authors":"P. Gárdos","doi":"10.1556/2052.2021.00325","DOIUrl":"https://doi.org/10.1556/2052.2021.00325","url":null,"abstract":"\u0000 The new European rules on securitisation entered into force in 2019 with a view to revitalising the securitisation market. By introducing public law rules, the regulation intends to avoid the re-creation of the risks that played a role in the 2008–2009 financial crisis. The regulation, however, does not contain private law rules. Consequently, the substantive rules pertaining to securitisation will remain to be formed by the national laws of the Member States of the European Union. This paper argues that the ways in which non-assignment clauses are regulated in Member States will have a significant impact on the availability of securitisation.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47159902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In a recent decision, the European Court of Human Rights concluded that the constitutional complaint before the Hungarian Constitutional Court can be seen as an effective domestic remedy. This decision shows the growing role of constitutional complaint procedures even in the international system of human rights protection; therefore, it is worth examining how national laws ensure efficient access to such procedures. The current paper aims to analyse a specific aspect of this complex problem, namely, the question of legal aid in constitutional court proceedings – particularly constitutional complaints procedures – in Germany, Austria and Hungary. As a general staring point, it is intended to derive the need for legal aid from the national constitutions, followed by an analysis on the availability of legal aid schemes for constitutional complaint procedures and their conditions. The examination is based on the national legal provisions and case-law, as well as the relevant secondary literature. This comparative study can enable some conclusions to be drawn on the question of how constitutional complaints can become more efficient tools in the protection of fundamental rights for those in need, as well.
{"title":"Access to constitutional complaint procedures: A real chance?","authors":"Á. Váradi","doi":"10.1556/2052.2021.00307","DOIUrl":"https://doi.org/10.1556/2052.2021.00307","url":null,"abstract":"\u0000 In a recent decision, the European Court of Human Rights concluded that the constitutional complaint before the Hungarian Constitutional Court can be seen as an effective domestic remedy. This decision shows the growing role of constitutional complaint procedures even in the international system of human rights protection; therefore, it is worth examining how national laws ensure efficient access to such procedures. The current paper aims to analyse a specific aspect of this complex problem, namely, the question of legal aid in constitutional court proceedings – particularly constitutional complaints procedures – in Germany, Austria and Hungary. As a general staring point, it is intended to derive the need for legal aid from the national constitutions, followed by an analysis on the availability of legal aid schemes for constitutional complaint procedures and their conditions. The examination is based on the national legal provisions and case-law, as well as the relevant secondary literature. This comparative study can enable some conclusions to be drawn on the question of how constitutional complaints can become more efficient tools in the protection of fundamental rights for those in need, as well.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41412342","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper discusses the system of minority protection of the League of Nations. Minority protection occupied a prominent place on the League’s agenda, which developed a significant expertise in the field. The League’s system of minority protection is often regarded as an experiment. With regard to both material and procedural aspects this assessment is certainly correct. In particular, minority protection based upon legally binding treaties and declarations gave rise to the question of how individual and group rights should be treated within the frame of an international political organization. The paper further examines whether at least some of the elements of the League’s minority protection system still persist in the context of contemporary international human rights law.
{"title":"The heritage of the League of Nations’ minority protection system","authors":"Harald Christian Scheu","doi":"10.1556/2052.2021.00224","DOIUrl":"https://doi.org/10.1556/2052.2021.00224","url":null,"abstract":"\u0000 This paper discusses the system of minority protection of the League of Nations. Minority protection occupied a prominent place on the League’s agenda, which developed a significant expertise in the field. The League’s system of minority protection is often regarded as an experiment. With regard to both material and procedural aspects this assessment is certainly correct. In particular, minority protection based upon legally binding treaties and declarations gave rise to the question of how individual and group rights should be treated within the frame of an international political organization. The paper further examines whether at least some of the elements of the League’s minority protection system still persist in the context of contemporary international human rights law.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43877085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper is devoted to the role of the head of state in initiating and implementing constitutional reforms in Senegal. This country can legitimately be regarded as one of the few examples of a relatively successful democratization process in Africa, as evidenced, among other things, by the lack of military coups leading to the loss of power by civilian governments, as well as by two democratic transfers of power (in 2000–2001 and 2012), after which the main opposition parties gained the presidency and the majority of parliamentary seats. Both these fundamental political transformations generated important constitutional changes (for example, the adoption of the current Constitution of 2001, or the constitutional modifications of 2016 and 2019) that have influenced, to a greater or lesser extent, the position of the presidency in Senegalese systems of government. The author analyses their significance for the functioning of contemporary political institutions in the broader context set by the politics of constitutional amendment which was conducted by previous presidents of this country. The main goal of the paper is to examine to what extent the constitutional modifications introduced before and after the adoption of the 2001 Constitution were designed to contribute to the beginning or consolidation of pro-democratic trends, and to what extent they were created to strengthen the position of an incumbent president himself, leading to a political imbalance and regress in the democratization process. The author argues that the constitutional modifications adopted over the years have often gone in two opposite directions, influencing the efficiency and durability of Senegalese institutional structures.
{"title":"Presidential politics of constitutional amendment in Francophone Africa: The case of Senegal","authors":"","doi":"10.1556/2052.2021.00280","DOIUrl":"https://doi.org/10.1556/2052.2021.00280","url":null,"abstract":"\u0000 The paper is devoted to the role of the head of state in initiating and implementing constitutional reforms in Senegal. This country can legitimately be regarded as one of the few examples of a relatively successful democratization process in Africa, as evidenced, among other things, by the lack of military coups leading to the loss of power by civilian governments, as well as by two democratic transfers of power (in 2000–2001 and 2012), after which the main opposition parties gained the presidency and the majority of parliamentary seats. Both these fundamental political transformations generated important constitutional changes (for example, the adoption of the current Constitution of 2001, or the constitutional modifications of 2016 and 2019) that have influenced, to a greater or lesser extent, the position of the presidency in Senegalese systems of government. The author analyses their significance for the functioning of contemporary political institutions in the broader context set by the politics of constitutional amendment which was conducted by previous presidents of this country. The main goal of the paper is to examine to what extent the constitutional modifications introduced before and after the adoption of the 2001 Constitution were designed to contribute to the beginning or consolidation of pro-democratic trends, and to what extent they were created to strengthen the position of an incumbent president himself, leading to a political imbalance and regress in the democratization process. The author argues that the constitutional modifications adopted over the years have often gone in two opposite directions, influencing the efficiency and durability of Senegalese institutional structures.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41383746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper seeks to compare the academic model of ‘militant democracy’ advocated in 1937 by Karl Loewenstein with the real political developments that had taken place only a few years before in Austria, under the responsibility of Engelbert Dollfuß. It further aims to to reveal the ‘missing link' between the actions (mere plans included) of - in particular - Catholic political leaders in Germany 1931/1933 (Heinrich Brüning, Franz v. Papen, Heinrich Held), directed at least from 1932 onwards in particular against the rise of the National Socialist movement, well-known both to Loewenstein and Dollfuß. It is argued that Loewenstein's model contains serious theoretical flaws and paves, at least when taken literally, the way to dangerous exaggerations, while the approach of the Dollfuß government was far more balanced. Any assessment of Dollfuß’ measures that – as is still the case in Austria – only focuses on the breach of the constitution then in force (the main document being the Bundes-Verfassungsgesetz, B-VG) as such, without offering a better alternative to prevent the National Socialist danger is unconvincing, not only from a moral, but also, and in particular, from a legal perspective.
{"title":"The Austrian path to the constitution of 1 May 1934 – An application of the paradigm of ‘Militant Democracy’ just avant la lettre!?","authors":"A. Balthasar","doi":"10.1556/2052.2021.00268","DOIUrl":"https://doi.org/10.1556/2052.2021.00268","url":null,"abstract":"This paper seeks to compare the academic model of ‘militant democracy’ advocated in 1937 by Karl Loewenstein with the real political developments that had taken place only a few years before in Austria, under the responsibility of Engelbert Dollfuß. It further aims to to reveal the ‘missing link' between the actions (mere plans included) of - in particular - Catholic political leaders in Germany 1931/1933 (Heinrich Brüning, Franz v. Papen, Heinrich Held), directed at least from 1932 onwards in particular against the rise of the National Socialist movement, well-known both to Loewenstein and Dollfuß. It is argued that Loewenstein's model contains serious theoretical flaws and paves, at least when taken literally, the way to dangerous exaggerations, while the approach of the Dollfuß government was far more balanced. Any assessment of Dollfuß’ measures that – as is still the case in Austria – only focuses on the breach of the constitution then in force (the main document being the Bundes-Verfassungsgesetz, B-VG) as such, without offering a better alternative to prevent the National Socialist danger is unconvincing, not only from a moral, but also, and in particular, from a legal perspective.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44217775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper aims at providing an overview of hate crimes through an interdisciplinary lens based not only on theories but also empirical research results. The paper first deals with the central components of hate crimes: prejudice and aggression. Not only the classical social-psychological theories of these phenomena are discussed but also some newer ones. As hate crimes do not occur in a vacuum, the next chapter of the paper deals with the social, political, cultural context and factors that facilitate or impede the occurrence of hate crimes. Community disorganization, urban ecology, racial balance, residential stability, economic conditions, and the role of the media and the internet are discussed in detail. The last chapter of the paper deals with the perpetrators of hate crimes, let them be lonely ones or members of organized hate groups. The paper demonstrates that the investigation of hate crimes can only occur in an interdisciplinary setting that can simultaneously take into account legal, social, cultural, and political factors.
{"title":"The genealogy of social hatred","authors":"Ildikó Barna","doi":"10.1556/2052.2020.00341","DOIUrl":"https://doi.org/10.1556/2052.2020.00341","url":null,"abstract":"\u0000 The paper aims at providing an overview of hate crimes through an interdisciplinary lens based not only on theories but also empirical research results. The paper first deals with the central components of hate crimes: prejudice and aggression. Not only the classical social-psychological theories of these phenomena are discussed but also some newer ones. As hate crimes do not occur in a vacuum, the next chapter of the paper deals with the social, political, cultural context and factors that facilitate or impede the occurrence of hate crimes. Community disorganization, urban ecology, racial balance, residential stability, economic conditions, and the role of the media and the internet are discussed in detail. The last chapter of the paper deals with the perpetrators of hate crimes, let them be lonely ones or members of organized hate groups. The paper demonstrates that the investigation of hate crimes can only occur in an interdisciplinary setting that can simultaneously take into account legal, social, cultural, and political factors.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47840105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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