a) Hungary / b) Constitutional Court / c) / d) 14-11-1996 / e) 52/1996 / f) / g) Magyar Közlöny (Official Gazette), 97/1996 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Separation of powers.
Institutions - Executive bodies - Powers.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Independence.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
Keywords of the alphabetical index:
Lawyer, previously having worked as a judge / Lawyer, incompatibility.
It is contrary not only to the constitutional principle of judicial independence but also to the separation of powers if the Minister of Justice and the Public Prosecutor have a discretionary power to decide whether a lawyer in both private and commercial practice can act as a legal representative before a court or prosecution service where he or she was employed as a judge or a prosecutor.
The petitioners requested the constitutional review of Article 4 of Law Decree 3 of 1983, according to which a lawyer in commercial practice must not act as a legal representative before that court or prosecution where he or she was employed as a judge or prosecutor for two years from the termination of his/her employment. The Minister of Justice and the Public Prosecutor were able to exempt the lawyer from this restriction. The petitioner also requested the determination of unconstitutionality of Article 7 of Law Decree 4 of 1983, according to which a lawyer in private practice must not act as a legal representative for two years before that court or prosecution service where he or she was employed as a judge, a prosecutor or an administrator before he or she became a member of the Chamber of Advocates. The Minister of Justice could exempt the lawyer in private practice from this restriction.
The Constitutional Court declares that the aim of the provisions in question of Law Decrees 3 and 4 of 1983 is to ensure judicial independence and impartiality. Therefore the Constitutional Court upheld the validity of the first part of these provisions, but held unconstitutional the part which provided that the lawyer in private practice must not act as a legal representative for two years before the court or prosecution service where he or she was employed previously as an administrator.
The reasoning of the Court recalled previous decisions on judicial independence and impartiality. In Decision 67 of 1995 (XII. 17.), the Constitutional Court declared that a situation must be avoided in which the impartiality of the judge is questionable. Impartiality and a fair trial are constitutional requirements. However, there is no constitutional reason for the limitation of the administratorís representation before the court and prosecution service where the administrator was previously employed. The restriction determined by the Law Decree concerning the administratorís representation was unnecessary and disproportionate. Hence the administrator's representation does not jeopardise the fundamental right to an impartial court.
The petitioners also requested constitutional review of the second sentence of Article 4 of Law Decree 3 of 1983, according to which the Minister of Justice and the Public Prosecutor are entitled to exempt a lawyer in commercial practice from the restrictions laid down in the first sentence, and the Article 7 of Law Decree 4 of 1983. This provision declares that the Minister of Justice shall exonerate the attorney from the relevant restrictions. In the petitionersíopinion, these two legal regulations unconstitutionally provide discretionary power to members of the executive branch, while there is no possibility for controlling this power.
The Constitutional Court declared the unconstitutionality of the provisions that entitle the Minister of Justice and the Public Prosecutor to exempt lawyers from the restrictions. The discretionary power of these two members of the executive branch violates the principle of the separation of powers, because they may influence the function of the judiciary.