Moments of Courage: The Abolition of the Death Penalty by the Hungarian Constitutional Court

Eszter Bodnár

ELTE Eötvös Loránd University

Selecting a single judgment from the extensive 34-year repository of case law of the Hungarian Constitutional Court (or any court, for that matter) is a task fraught with complexity. To draw a comparison, in 2021, the first Hungarian project, akin to the renowned "Grands arrêts," meticulously curated a collection of the 100 most pivotal cases. In light of this, I embarked on a collective effort to source ideas, driven by the editor's stipulation that the chosen judgment must command ‘general doctrinal consensus that the judgment is, in fact, a revolutionary judgment in the sense that it seems, to constitutionalists, indispensable to be aware of this particular judgment in order to better understand the constitutional system of the country.’ 

I contacted the community of Hungarian constitutional lawyers, soliciting their opinions. Some respondents willingly shared their insights, and, after some initial reluctance due to the hard task of singling out one decision, a near-unanimous consensus emerged in favor of decision no. 23/1990 (X. 31.), on abolishing the death penalty. Other judgments on the list were no. 31/1990 (XII. 18.), introducing the principle of the separation of powers, 11/1992. (III.5.), which elucidated fundamental aspects of the rule of law, and  30/1992. (V. 26.), establishing the bedrock principles of freedom of expression. Therefore, this article is a product of collective insights, but any errors or omissions are solely attributable to the author.

Every eye on the new court

Except for a few feeble endeavors towards a form of constitutional review, introducing a European-style distinct constitutional court had no precedent within the annals of Hungarian constitutional history. Establishing the Constitutional Court was a pivotal component of the nation's transition to democracy. Act XXXII of 1989, which established the court, was ratified immediately following a comprehensive constitutional amendment, creating a democratic constitutional system based on the rule of law. The Constitutional Court officially commenced its functions on January 1, 1990. Drawing significant inspiration from the German Federal Constitutional Court, the Hungarian Constitutional Court assumed a central role in crafting a cohesive interpretation of the nascent constitution. It played a crucial part in building up fundamental constitutional principles such as democracy, the rule of law, the separation of powers, and the safeguarding of human rights. Equally noteworthily, it played a substantial role in cultivating a constitutional ethos within the country.

The death penalty was applied in Hungary as a punishment from the beginning of the state's existence until 1990; however, after the 1960s, its prevalence decreased. In early 1989, under the leadership of criminal law professor Tibor Horváth as its president, the Anti-Death Penalty League was established with the primary objective of abolishing the death penalty. Immediately after the establishment of the Constitutional Court, they submitted an initiative to review and annul the statutory rules on the death penalty. The petition was less than one page long and argued that capital punishment violates Article 54 of the Constitution, stating that ‘[i]n the Republic of Hungary everyone has the inherent right to life and human dignity. No one shall be arbitrarily denied of these rights.’ and ‘[n]o one shall be subject to torture or cruel, inhuman or humiliating treatment or punishment’. They also attached a study with legal, moral and practical arguments against the death penalty.

The Constitutional Court asked for opinions from three experts and the Minister of Justice and held a hearing with interventions by the Minister's representative, the President of the Supreme Court, and the general prosecutor. The decision was taken by a vote of 9:1 on 15 October and was published in the Official Gazette on 31 October 1990, almost exactly a year after the declaration of the Republic and the promulgation of the new constitution. One judge attached a dissenting opinion (arguing that the Parliament had the competence to decide the question), and there were      five additional concurring opinions to the decision.  

Brief and incoherent but a landmark decision

The Constitutional Court held that the death penalty is unconstitutional and annulled all the relevant statutory regulations in force. According to its brief reasoning, it argued that two articles of the constitution are contradictory. While Article 54 (1) prohibited only the arbitrary deprivation of life, Article 8 (2) ‘did not permit any limitation upon the essential contents of fundamental rights even by way of legislative enactment’. The Court invited the Parliament to solve this conflict but meanwhile chose the latter provision as a guideline (implicitly using the rule lex posterior derogate legi priori). Using moral reasoning, it stated that ‘[s]ince the right to life and human dignity was itself the essential content, the State could not dispose of it. Any deprivation of it was conceptually "arbitrary." The State would come into conflict with the whole concept of fundamental constitutional rights if it were to authorize the deprivation of the right by permitting and regulating capital punishment.’ 

The decision also contains several doctrinal and symbolic statements, including the indivisibility doctrine (‘human life and human dignity formed an inseparable unity, having a greater value than other rights; and thus being an indivisible, absolute fundamental right limited the criminal jurisdiction of the State’) and a declaration of the State’s obligation to protect fundamental rights (‘irrespective of citizenship, the right to life and human dignity is an inherent, inviolable and inalienable fundamental right of every human being in Hungary. It is the primary responsibility of the Hungarian State to respect and protect these rights’). Additional arguments indicate that this shift is in harmony with the recently adopted international documents and the criminological and statistical findings that abolishing capital punishment does not influence the rate of offending.           

Messages for the present and the future

Several factors make this decision a landmark judgment in Hungarian constitutional history. 

First, the topic is a crucial issue in a newly established constitutional democracy where the rule of law and human rights existed only on paper for decades. Declaring the inalienability and inviolability of fundamental rights and the limits of state authority was a huge step. Second, this was also a symbolic expression of turning away from socialism towards a constitutional democracy, and the community of Western liberal states, importing their constitutional ideas and doctrines (even if modified). This judgment transformed Hungary's legal landscape, highlighting its commitment to democratic values and adherence to international human rights standards. The judgment reflects the country’s aspirations to be a member of the liberal international community and demonstrates its willingness to adopt evolving norms and standards. Third, by taking up the task of deciding a question instead of leaving this to the democratically elected parliament, the Constitutional Court expressed the limits of representative democracy and the Court’s function to protect fundamental rights against popular majorities. The decision meant that without a constitutional amendment, the Parliament cannot reintroduce capital punishment, even if there is pressure from society. (Since-adopted international treaties also exclude this option.) Fourth, the Constitutional Court took an activist approach for the first time, departing from (or even contradicting) the constitutional text. The decision paved the way for the recognition and constitutional protection of other fundamental rights that are not explicitly mentioned in the Constitution. In addition, the concurring opinion by President László Sólyom introduced the concept of the ‘invisible constitution’ that supported the activist approach for a long time. Fifth, this decision shows a confident, courageous institution that started its work only months before the decision but was ready to protect the Constitution and its values, even if it risked unpopularity in doing so (the vast majority of the Hungarian population viewed this punishment as acceptable and necessary). Sixth, the decision made the Hungarian Constitutional Court is known not only domestically but also internationally. My own research interest in international judicial dialogue was motivated by a sentence I heard about first as a first-year law student when our professor    mentioned that this decision was cited by the Constitutional Court of South Africa. Finally, while recent changes at the court and in the constitutional system in Hungary give less reason for optimism, this decision reminds us that even under extreme pressure, on sensitive questions, the option to make a decision that will stay with us as a symbolic landmark for decades is always there, in the hands of the decision-makers.

Eszter Bodnár is an associate professor of constitutional law at the ELTE Eötvös Loránd University in Budapest, Hungary, and a lecturer of comparative constitutional law and EU law at the University of Victoria, Canada.

Suggested Citation, Eszter Bodnár, ‘Moments of Courage: The Abolition of the Death Penalty by the Hungarian Constitutional Court’ IACL-AIDC Blog ( 9 November 2023), https://blog-iacl-aidc.org/2023-posts/2023/11/9/moments-of-courage-the-abolition-of-the-death-penalty-by-the-hungarian-constitutional-court