Abstracts Nr 2, 2016
Gábor Attila Tóth, Constitutional Roads to Autocracy? Case Studies from Hungary and Poland
This article is describing the political and legal situations in Hungary and Poland which resulted after the 2010 and, respectively, 2015 parliamentary elections. It identifies, by comparing the two countries, the main similarities and differences. The recent Polish developments are similar to the post 2010 rapid Hungarian transformation. The Hungarian regime produced a new constitution, which secures the supremacy of the current power-holders over their political competitors. The Law and Justice Party, which is the ruling party in Poland, is not in a position to easily replace the whole 1997 Polish Constitution, therefore it seeks to disregard it. In Hungary, without a regime change, there is no constitutional democracy. In Poland, preserving the constitutional system would mean democracy.
The single factor explanations for these situations are weak. Several non-legal factors also caused the decline of these liberal democratic regimes: shortage of democratic traditions, historical misbelieves, failed collective historical self-examination, religious bigotry, failures of the democratic regimes, rising populism, weakness of civil society, corruption, cynicism.
Compared to Hungary, Poland has some advantages: not only because it still has a liberal democratic constitution which the ruling party cannot easily abolish, but also because of a stronger civil society and the still existing democratic parliamentary opposition.
Keywords: Hungary, Poland, comparative analysis, autocracy, Law and Justice Party, 2010 elections, 2015 elections, constitution
Teodor Papuc, The case Bărbulescu v. Romania, or the fairness of an equilibrium that doesn’t take into account necessity
Abstract: This article discusses the proportionality test in the European Court of Human Rights’ decision in the Bărbulescu v. Romania case, and its consequences for one of the most intimate aspects of private life: Internet communications with close persons. The classical proportionality test involves three stages (sub-tests): appropriateness, necessity and balancing. This test takes into account all the case circumstances. The necessity stage, which I emphasize, checks for a less restrictive appropriate measure to achieve the legitimate aim. In this respect, the contested measure is compared to other measures that could achieve the same aim, at the same level, but with lower costs for the limited right. However, the Court has developed over the years its own proportionality test, a different test from the classical one. It sometimes omits the necessity stage. This phenomenon is visible in Bărbulescu v. Romania. In this case, the applicant, a private company employee, was fired because he used a company computer for personal purposes. The employer monitored and recorded for some period of time the messages the applicant had exchanged with his fiancée and his brother. Was this measure necessary? This article seeks to demonstrate that in such sensitive cases, which relate to the most intimate aspects of private life, the Court should actuate the necessity sub-test and highlight its findings to provide the applicants with an effective guarantee.
Keywords: proportionality test, necessity stage, privacy, the European Court of Human Rights, fair balance, Bărbulescu v. Romania.
Ștefan Bogrea, Potential victim in European Court of Human Rights cases regarding secret surveillance measures: between individual applications and actio popularis
Abstract: The European Convention on Human Rights offers individuals the possibility to file an individual application, where they claim to be a victim of a violation of the rights guaranteed by the Convention. Normally, individuals cannot choose to file an actio popularis, by generally criticizing national authorities’ practices or the legislation enabling such practices. The specificity of mass surveillance cases has led to the creation of an autonomous European notion that bridges the individual application and the actio popularis: the notion of a potential victim.
Keywords: actio popularis; individual application; secret surveillance measures; right to respect for private and family life; potential victim; European Convention on Human Rights