Role of the constitutional courts in the system of the effective domestic remedies – a new approach on the horizon? Criticism of the Mendrei v. Hungary decision

By Dr. Dániel A. Karsai, attorney at law, Dániel Karsai Law Firm

The European Court of Human Rights (hereinafter: the Court) recently adopted the Mendrei v. Hungary (no. 54927/15) decision on 5 July 2018. In this very important decision, the Court changes fundamentally, and in my opinion negatively, its understandings of the role of the constitutional courts in the system of domestic remedies and the required level of protection of Convention rights. The prospects of the negative changes are not mere Cassandra’s curse; since in Mendrei the Court accepted a legal avenue before the Hungarian constitutional court to be an effective remedy, whereas this procedure can only result in the quashing of the underlying regulations without curing the injustice concerned. Moreover, it turned upside-down the burden of proof previously vested on the governments concerning the effectiveness of a remedy, and, last but not least, the impartiality of the proceedings can be seriously questioned.

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