Access to constitutional complaint procedures: A real chance?

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.

The heritage of the League of Nations’ minority protection system

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.

Presidential politics of constitutional amendment in Francophone Africa: The case of Senegal

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.

The Austrian path to the constitution of 1 May 1934 – An application of the paradigm of ‘Militant Democracy’ just avant la lettre!?

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.

The genealogy of social hatred

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.

Civil law and the role of the State

The profound changes in both everyday life and the legal system over the last hundred years have transformed civil law as well. While the notion that civil law concerns relationships of private persons still prevails, the traditional public law–civil law division now seems questionable. This paper points out some of the key changes in civil law within the framework of the transformation of the legal system as a whole, and seeks to outline a different approach that may help better to understand the present situation.

Prerequisites for the effective fight against hate crimes

Hate crimes poison societies by threatening individual rights, human dignity and equality. They effect private lives, or even victims’ life and limb. Due to their ripple effect, they terrify whole communities, reinforce tensions between social groups, ultimately jeopardising peaceful coexistence. No society is immune from the signs of hatred, but whether they get tamed or whether prejudices are deepened, depends on the social measures that are applied vis-à-vis the phenomenon. The state’s reaction creates norms and will informs society about the current acceptable standards. European expectations help forming these. Standards developed by the European Court of Human Rights include the obligations to ensure that hate against social groups as a motivation is considered an aggravating circumstance or leads to penalty enhancement. States must also ensure that national investigation authorities show special vigilance to explore and unmask the bias motives behind hate crimes. Such European expectations still leave a wide room of manoeuvre to respond to hate crimes efficiently and dissuasively. But irrespectively of the national codification method, for legal provisions to reach the desired outcome, certain social preconditions must be met. For hate crime laws or provisions to work, states must reach a certain level of maturity from the viewpoint of democracy, fundamental rights in general and the rule of law, where guaranteeing judicial independence is an absolute minimum.

Qualified laws as actors of the separation of powers

Over the last few decades, several countries have entrenched a special subcategory of law, which is adopted by stricter procedural rules than the requirements of the ordinary legislative process. These laws are enacted by qualified majority, by the consent of the two chambers of the legislation, and are subject to mandatory constitutional review before their promulgation, or additional safeguards are implemented in the ordinary legislative process. It is beyond doubt that this legal instrument influences the prevalence of the separation of powers and the constitutional principle of democracy in a remarkable way; therefore, it might be an important tool for populist politicians to concrete their preferences for the long term. In this study, my aim is to conceptualize the most highly contested issues regarding the legal nature of qualified laws, and to provide a deeper understanding of the interdependence between qualified laws and the separation of powers. This analysis might also clarify how qualified laws may serve the ambitions of populist political groups in certain specific circumstances. My contribution provides general theoretic considerations, and does not outline the particular constitutional frameworks in detail. I would rather just use the specific examples to demonstrate how the mechanism of qualified law works in practice as an instrument of constitutional law.

The chances of restorative justice in hate crime cases

This paper discusses whether the methods of restorative justice (RJ), broadly interpreted as alternatives to criminal proceedings and sanctions, are applicable to hate crimes. It builds on the premises that RJ methods are appropriate tools to deal with hate crimes and conflicts that arise from them, as there are social conflicts behind these actions that can be resolved by a sensitive and empathetic approach that focuses on restoration. However, there are dilemmas and factors where caution and an in-depth reflection should be observed to understand how these techniques can work well without further harming either party.