Shaping Presidential Powers in Hungary: Convention, Tradition and Informal Constitutional Amendments

There was no tradition of a republican president in Hungary before the fall of communism, and the transitory constitution of 1989 was unclear about the exact role the President should play in the constitutional system of Hungary. Some provisions even resembled those of presidential or semi-presidential systems; some ambiguities were clarified during the first two decades after the transition. Conventions, however, were established to some extent and sometimes very quickly. This period gave rise to guidelines as to how the powers of the President should be exercised. Some other powers were concretized and interpreted foremost by the Constitutional Court. These conventions and judicial interpretations formed the character of the Presidency to the extent of informal constitutional change. Some of these elements have even been incorporated into and formalized by the new Fundamental Law of Hungary. The present contribution will point out how the originally broad competencies of the President have been narrowed in the practice, and what role the Constitutional Court and political actors played in this process.

The Concept of the ‘Living Constitution’ in Russian Constitutional Theory and Practice

In discussing the concept of the ‘living constitution’ in Russian constitutional theory and practice, this paper shows that the Russian concept of the living constitution differs from U.S. or European approaches to evolutive interpretation. The Russian concept has its roots in Soviet and pre-revolutionary Russian constitutional thinking. It reduces the normative power of the Constitution but allows an interpretation according to changing social conditions and gives the legislator a broad margin of appreciation. Whereas the 1993 Russian constitutional reform had been regarded as a paradigm shift with the intention to break with the past by declaring that the Constitution shall have supreme judicial force and direct effect, the paper also gives answers to the complexity of constitutional change and legal transplants and the role of constitutional theory and practice for the functioning of the current authoritarian regime in Russia.

The Legal Consequences of Unfair Contract Terms in Consumer Loan Agreements Valorized with Foreign Currency

In recent years, the Court of Justice of the European Union has issued a number of judgments addressing the issue of consumer protection in connection with the use of unfair terms by banks in loan agreements indexed with a foreign currency exchange rate. Most of them have concerned issues of exchange rate risk and exchange rate differences between the purchase and sale rates of a given currency applied by the bank. This article analyzes the recent ruling by the Court of Justice of the European Union in the Dziubak case, which was initiated by referring questions for a preliminary ruling by a Polish court. The article’s purpose is to assess the position taken by the cjeu in this respect and its significance for consumers in Poland. Particular attention was paid to the considerations with regard to the possibility of replacing unfair provisions with general provisions and assessing the consumer’s awareness of the consequences of declaring a contract invalid. The aim is to examine the issues that were dealt with by the Court of Justice of the European Union in the Dziubak case, including – in particular – the answer to the question of whether the issues discussed by the cjeu had already been considered in its previous jurisprudence and whether it presents new, previously unknown legal consequences of the inclusion of unfair contract terms in loan agreements.

Ideological Concepts in ‘Formalism, Decisionism and Conservatism in Russian Law’ (2021) by Mikhail Antonov

The present review analyses key ideas of professor Mikhail Antonov’s 2021 book on formalism, decisionism and conservatism in Russian Law. This review essay is written in the form of an imaginary dialogue between the reviewer (a political philosopher) and the author (legal philosopher). Its main aim is to explore legal dimensions of Russia’s new ideology of conservatism. Divided into five sections, it covers five conceptual foundations of the book – sovereigntism, statism, collectivism, civilizationism and exceptionalism. This review essay also examines the links between the respective ideas of legal philosophy of Mikhail Antonov and an overview of arguments from the contemporary political and critical international theory, aiming to engage in a critical discussion with the author about Russia’s insecure collective identity.

Regulating without Regulation? Regulating without the Sovereign?

The development of automated decision-making technologies creates the threat of de-iuridification: replacement of the legal acts’ provisions with automated, technological solutions. The article examines how selected provisions of the General Data Protection Regulation concerning, among other things, data protection impact assessments, the right to not be subject to automated decision-making, information obligations and the right to access are applied in the Polish national legal order. We focus on the institutional and procedural solutions regarding the involvement of expert bodies and other stakeholders in the process of specification of the norms included in the gdpr and their enforcement. We argue that the example of Poland shows that the solutions adopted in the gdpr do not shift the balance concerning regulatory power in regard to automated decision-making to other stakeholders and as such do not favor of a more participative approach to the regulatory processes.

Legislation on Same-Sex Partnerships in the Post-Communist Area: Case Study of the Czech Republic

In the Czech context, the issue of same-sex partnerships can be viewed as a “hot potato”. After long political debates, a law allowing civil unions was adopted in 2006. In the post-communist area, there has been a political struggle over the marriage. The Czech Constitutional Court recently published two key decisions that moved this debate forward. At the same time, two major legislative bills were tabled in the Chamber of Deputies: the first extending marriage to non-heterosexual couples, the second preserving the current status quo with regard to marriage. In the article, we explain these recent Czech legal events in the broader context of the perception of marriage in the post-communist area. We argue that if the Court decides in the future on the constitutionality of same-sex marriages, it should take into account the principles of human dignity and the best interest of the child.

The Status of Crimea and the Sea of Azov as a Jurisdictional Hurdle in Ukraine v. Russia

On 21 February 2020, the arbitral tribunal constituted under Annex vii of the United Nations Convention on the Law of the Sea (unclos) in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) rendered its award concerning preliminary objections. This comment focuses on the arbitral tribunal’s findings concerning Russia’s two most important and far-reaching objections, both of which concern jurisdiction ratione materiae. First, it argues that the arbitral tribunal convincingly declined jurisdiction over those of Ukraine’s claims, which would have required the arbitral tribunal to decide the dispute between Ukraine and Russia concerning sovereignty over Crimea. Second, this comment analyzes the arbitral tribunal’s conclusion that the parties’ dispute concerning the status of the Sea of Azov and Kerch Strait was not of an exclusively preliminary character and must, therefore, be reserved for the proceedings on the merits.

The Class Action in Lithuania and Poland: History, Experiences and Lessons

The article analyses the peculiarities of the regulation of Class Action institution in the civil proceedings of Lithuania and Poland. Due to its limited scope, this article investigates the civil proceedings in the first instance courts only. The authors draw a special focus on the comparative analysis and the analysis of the effectiveness of the procedure in the current regulation by investigating both the doctrine and the available limited case law. The subject of considerations are problems relating both to the admissibility of filing a class action, as well as the course of court proceedings in cases concerning group proceedings, with particular emphasis on their differences from other procedural structures in Poland and Lithuania.

Institutional Determinants for Representation of Indigent Defendants: Evidence from Russia

Little is known about the motives of lawyers who provide free legal assistance in countries that lack both a developed professional community and developed institutions related to the rule of law. Based on a survey of 3,317 criminal defense lawyers (advokaty) in 35 regions of Russia, we analyze the provision of two types of free legal services: participation in legal proceedings “on appointment” (po naznacheniyu) and the provision of pro bono legal assistance. We show that work on appointment usually involves lawyers with low social capital and a lack of regular clients. In contrast, pro bono legal assistance is encouraged by lawyers’ organizations. It is typically provided by professionals with a high level of social capital and with values aimed at maintaining an excellent professional reputation. We conclude that the provision of free legal services might best be stimulated within the professional community rather than by the government.