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“THE ‘ETERNAL CANDIDATE’ — THAT WAS ME”: INTERVIEW WITH KAROLY BARD
legislator make one reservation to the Convention. Wasn’t this overly optimistic a
mere two years after the change of political system? Was our legal system really in
such good shape? Were your findings disproved later on?
K. B.: We had written this study on our own initiative. Nobody had tasked
us to do so. Our main goal was to explore what legislative amendments would
be necessary before the ratification of the Convention. As a result we indeed
recommended that twelve amendments be made. The reason we suggested so few
amendments was that we were looking to find those provisions that could not be
applied in conformity with the Convention. As for the reservation, this regarded
the Act on misdemeanors, since we hade inside knowledge that the Ministry of
the Interior would not rectify it in the foreseeable future. In addition, a political
declaration was made on compensation for expropriation and nationalization
during the Communist regime. In fact, this was completely obsolete, since the
Convention was not applicable to fundamental rights violations perpetrated before
its entry into force in Hungary.
Was our conclusion overly optimistic? Perhaps you're right. But this was very
thorough work and we looked very closely at the Strasbourg case-law. I stayed in
Freiburg for a while after my appointment and commuted to Bern every week to
meet with my good friend Stefan Trechsel (a member of the European Commission
of Human Rights). Over fondue and wine, we went through all the possible scenarios
that Hungarian law could come into conflict with the Convention and we looked
at every single rule that I found suspicious. All of what we wrote, followed from
the case-law of the time. Of course, Hungary had been condemned on occasion
for how the law was applied, but never for the wording of legislation.
V. Z. K.: In an article published in 1992 you wrote: “It seems that the slogan
‘Return to Europe’ repeated ad nauseam had done its work: provincialism that
elevates ignorance to a virtue and self-importance considering all external criticism
to be an ‘interference in internal affairs’ has seeped away from our political culture
faster than expected.” By contrast, in a 2017 article co-authored with Petra Bard
you summarize the 25 year application of the Convention in Hungary as follows:
“(Since ratification] the Hungarian legislature has primarily just responded to
judgments rendered against Hungary, while no systemic, proactive assessment
of the legal system to prevent a breach of the Convention has taken place and no
comprehensive ‘legal package’ with the express ambition to achieve conformity
with the Convention was brought before the Parliament. The Hungarian judiciary’s
knowledge of Strasbourg case-law is acceptable and the decisions of the European
Court of Human Rights occasionally appear in the judgments of the courts. Yet
there is a view that courts have no competence to directly apply Strasbourg case¬
law and sometimes we see instances of a conscious misinterpretation of Strasbourg
judgments. At times, political considerations stand in the way of the enforcement
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