HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

To answer these questions, I will consider a concrete example. The most prominent one is today’s Hungary, where there emerged so-called “ illiberal constitutionalism ”. 49 So, starting with the first question, there is a strong probability, given the evidence, that the answer is that the judicial branch would be loyal. The evidence is that the Hungarian Constitutional Court was an accomplice in promoting some of Viktor Orbán’s intentions: for example, when Orbán lacked the majority necessary to pass an Amendment to the Constitution, which would enable Hungary to “protect” itself from the EU, the Constitutional Court found that this exact interpretation could be drawn from the Constitution as it was. 50 Another example is the change of legislation governing the election process to obtain greater majority in the Parliament, which happened with assistance of the Constitutional Court. 51 Not to mention the fact that Hungary has been making attempts to control the judiciary directly, namely its administrative division while ignoring concerns from international human rights institutions. 52 What I tried to demonstrate is that the courts in Hungary “ became mere instruments in the hands of autocrats ”. 53 And so, I find highly improbable that a judicial system, as corrupted as the one in Hungary, would be willing to start a procedure, that could endanger the current political system. As the saying goes, do not bite the hand that feeds you. Another example, which is quite extreme, but is an example, nevertheless, is the Third Reich. As history shows us, we, lawyers, are not heroes; we are often complacent with the governing state regime. 54 Therefore, there is no need to replace every judge 55 , because they will bend to the state willingly. “ On one hand, the Nazis used German judges and lawyers as tools to promote their criminal ends, on the other hand, judges and lawyers let themselves be abused ” 56 as aptly put Hermann Weinkauf . Thus, the answer 49 DRINÓCZI, T., BIEŃ-KACAŁA, A. Illiberal Constitutionalism: The Case of Hungary and Poland. German law journal. [online]. 2019, edit. 20, no. 8, p. 1140–1166. Available at: https://doi. org/10.1017/glj.2019.83. p. 1141. 50 Ibid. p. 1153–1154. 51 Ibid. p. 1157. 52 THAN, K. Hungary to set up court overseen directly by government. Reuters. [online]. December 2018. Available at: https://www.reuters.com/article/world/hungary-to-set-up-courts-overseen-directly by-government-idUSKBN1OB1BV/. Or also GALL, L. Hungary’s Latest Assault on the Judiciary. Human Rights Watch. December 2018. Available at: https://www.hrw.org/news/2018/12/14/hungarys latest-assault-judiciary 53 JÚLIA DONÁTH, A. Absolutely Corrupted: The Rise of an Illiberal System and The Future of Hungarian Democracy. 27. Providence: The Brown Journal of World Affairs, 2021. p. 84. 54 TAUCHEN, J. Vývoj trestního soudnictví v Německu v letech 1933–1945. Ostrava: Key Publishing, 2010. 55 I do not share the optimism that some judges in small district towns will protect the Rule of Law, in contrast to JAKAB, A. The EU Charter of Fundamental Rights as the Most Promising Way of Enforcing the Rule of Law against EU Member States. In: Reinforcing Rule of Law Oversight in the European Union. 2016, p. 187–205. Available at: https://doi.org/10.1017/CBO9781316258774.011. p. 195. 56 WEINKAUFF, H. Die deutsche Justiz und der Nationalsozialismus. Ein Überblick. Stuttgart: Deutsche Ver.-Anst., 1968; Laufs, A. Rechtsentwicklungen in Deutschland. 5. edition. Berlin, New York: Walter de Gruyter Verlag, 1996. p. 370.

117