Unequal protection: Historical churches and Roma people in the Hungarian constitutional jurisprudence

Tóth, Gábor (2010) Unequal protection: Historical churches and Roma people in the Hungarian constitutional jurisprudence. Acta Juridica Hungarica, 51 (2). pp. 122-135. ISSN 1216-2574

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Abstract

Treating people as equals is one of the main aims of constitutional democracies. Numerous examples prove the adverse effects if a state violates the equality principles relating to ethnic minorities and religious groups. Here is a lesson from Hungary. The Hungarian Constitutional Court (hereinafter: HCC) is not engaged in adjudicating concrete ‘cases and controversies’, but seemingly reviews the constitutionality of laws. The Constitution lays down the fundamental tenets relating to religious groups, churches, ethnic minorities and the principles of equality in general. Thus, the question is how the problems of religions and minorities are reflected in the constitutional case-law.The main theses of this article are following. First, based on historical facts the HCC provides preferential treatment for so-called historical churches. Second, in cases involving Roma the HCC does not consider the historical facts and social reality thus, the discrimination of Roma does not appear in the jurisprudence. Third, the unequal protection of churches and Roma by the state results in advantages being provided where the constitutional reasons of preferential treatment are absent while the state remains inactive where the promotion of the principles of equality would be most necessary.

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