Author Archives: Kriszta Kovács

The Jurisprudence of Particularism

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Is there space for particularism which would limit the implementation of European Union law in a constitutional democracy? This is the question the recently published book edited by Kriszta Kovács seeks to answer. The open-access volume examines courtroom national identity claims in Central Europe and examines these claims through the lens of particularism. By taking particularism as the prism, the volume offers a new analytical scheme to evaluate the judicial invocation of identity.

Particularism is typically contrasted with universalism. However, particularism does not necessarily have to be exclusionist. It can be understood as particularistic manifestations and reflections of universal constitutional principles such as freedom or equality. Continue reading →

“Women, Life, Liberty”: Women Against the Authoritarian Regime

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There are many different criteria that can be used to assess the state of a political regime. One, if not the most important criterion is whether the regime respects and actively protects the fundamental human rights of its subjects. Women’s rights are human rights. Women, like men, have a human right to pursue happiness. Like men, they have the right to physical and mental self-determination, to decide for themselves who and what they want to become and what kind of life they want to lead. The right to self-determination includes the right to make life-defining decisions such as choosing a partner and whether or not to have children. And a woman also exercises her freedom of self-determination when she chooses what job she wants to do or decides what to do with her free time and how to dress when she goes out. Continue reading →

Free and Fair Elections: The European Minimum Standards

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In 2021, Germany faces important general elections both at the state and the federal level. Holding elections in the middle of a pandemic is challenging. Organizing free and fair elections is even more so. But when is the election free and fair? This piece presents the answers given by the European Convention on Human Rights (Convention) and its authoritative interpreter, the European Court of Human Rights (Court). It devotes special attention to Article 3 Protocol 1 of the Convention, which stipulates that ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’

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How can the ECtHR stay true to its commitment to democracy?

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2020 is a special year for Europe: it marks the 70th anniversary of the establishment of the European Convention on Human Rights, which has played an essential role in stabilizing democracies in post-war and post-cold war Europe. Owing to the mandatory jurisdiction enjoyed by the European Court of Human Rights, it has had an enormous impact on the nature of democracy in the member states. Continue reading →

Hungary’s Orbánistan: A Complete Arsenal of Emergency Powers

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On 23 March 1933, an act was adopted in Nazi Germany in response to the “crisis” of the Reichstag fire to enable Hitler to issue decrees independently of the Reichstag and the presidency. Article 48 of the constitution of the Weimar Republic made this act possible. Eighty-seven years later, on 23 March 2020, the so-called ‘Enabling Act’ was put before the Hungarian Parliament. This was drafted under emergency constitutional provisions in Articles 48-54.

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The Age of Constitutional Barbarism

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In January 2011, we organized a mini conference about the Hungarian constitutional transformation at Humboldt University. We described the chain of events, from the landslide victory of the then-opposition party, Fidesz, to a series of drastic constitutional revisions. In our presentations, we called the transformation a constitutional crisis and we argued that the constitutional revisions did not meet the democratic constitutional standards. Continue reading →

Can the European Union Save the Independent Judges?

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By the time of the “big bang” accession in 2004, when ten new member states entered the European Union, it seemed that the fate of East-Central Europe was settled. From that time forward, these states were certified as democracies in good standing. But before the first decade was out on the accession, it became painfully clear that a consolidated democracy could come unraveled. Hungary’s constitutional system began imploding shortly after 2010 and in 2015 Poland began a short, sharp slide toward autocracy. In Hungary and Poland, parties with autocratically inclined leaders were voted into power. Both Viktor Orbán and Jarosław Kaczyński lied about their revolutionary ambitions before they were elected. Once in office, both began attacking judiciaries which were poised to hold them to account under the democratic constitutions they inherited. Continue reading →