a) Hungary / b) Constitutional Court / c) / d) 27-11-1999 / e) 49/1998 / f) / g) Magyar Közlöny (Official Gazette), 106/1998 / h) .
Keywords of the Systematic Thesaurus:
Sources - Categories - Written rules - International instruments.
General Principles - Rule of law.
General Principles - Certainty of the law.
General Principles - Weighing of interests.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Double degree of jurisdiction.
Keywords of the alphabetical index:
Misdemeanour proceedings / Limitation / Fundamental right, essence / Criminal procedure.
That provision of the Code of Criminal Procedure, under which in misdemeanour proceedings the court of second instance can only reverse the judgement of the court of first instance if the lower court did not settle all aspects of the accusation, is unconstitutional.
It is not contrary to the right to a legal remedy enshrined in Article 57.5 of the Constitution that in misdemeanour proceedings the court of second instance may modify the facts established by the court of first instance and impose a sentence based upon the facts established by the court of second instance itself, except when as a result of correcting factual error, an accused who was acquitted by the court of first instance or whose case was terminated should be found guilty.
A judge of an appellate court initiated the proceedings before the Constitutional Court in a pending case on the basis that she considered one of the provisions of the Code of Criminal Procedure to be unconstitutional.
The petition asserted that the challenged provision of the Code was unconstitutional because in misdemeanour proceedings, the court of second instance could not declare the judgment of the lower court void if that court, examining the facts on which the charge was founded, acted in breach of procedural rules which exerted a substantial impact on the judgment, except when the lower court did not decide on all aspects of the accusation. In the opinion of the initiating court, this rule infringes the right to defence defined by Article 57.3 of the Constitution. According to the petition, when a court of second instance takes evidence and decides on a case as if it were a court of first instance, the right to appeal against this decision is not ensured. This is contrary to Article 57.5 of the Constitution, under which in the Republic of Hungary everyone is entitled to seek a legal remedy, as provided for by the law, against the decisions of the courts, the public administration or other authorities that infringe his rights or rightful interests.
Under Hungarian law, in order to simplify ordinary judicial process, in misdemeanour proceedings the legislature strongly limited circumstances where failure to comply with procedural requirements may lead to the voiding of the judgment. However, the power of the court of second instance to modify the judgment of the lower court is broad. In general, the judgment of the court of second instance should be based upon the facts already established by the lower court. In the interest of speedy trial in misdemeanour proceedings, the court of second instance may rule on the facts itself, when there are factual errors in the judgment of the lower court.
The Code of Criminal Procedure differentiates between absolute violations of procedural rules, which are specified by the Code and as a consequence of which the judgment of the court of first instance must be declared void, and relative violations of procedural rules, which make reversing and reviewing the judgment of the lower court mandatory only if these errors had a substantial impact on the judgment. The second type of procedural errors may not be taken into consideration in misdemeanour proceedings except when the lower court does not decide on all aspects of the accusation.
The Constitutional Court examined the constitutionality of the two elements of the challenged provision separately on the basis that the procedures to be followed differ in the case of factual and other procedural errors.
The Court granted the petition in part and held that the challenged provision of the Code of Criminal Procedure was unconstitutional, since it violated the principles of the rule of law and legal certainty and the prohibition on limiting the essential contents of any fundamental right. The constitutional requirement concerning adjudicating disputes within a reasonable time derives from Articles 2 and 57.1 of the Constitution, and also from the obligations assumed under international law. The concept of speedy trial is embodied in Article 14.3.c of the International Covenant on Civil and Political Rights, Article 6.1 ECHR and Article 2 Protocol 7 ECHR. The Preamble of Recommendation no. R (87) 18 adopted by the Committee of Ministers of the Council of Europe concerning the simplification of criminal justice calls the attention of the Member States to the fact that delay in dealing with crimes brings criminal law into disrepute and affects the proper administration of justice. These delays can be remedied by so-called simplified procedures. In the interest of speedy trial, the Recommendation makes it possible to declare proceedings void on procedural grounds only in strictly defined circumstances where failure to comply with procedural requirements may have caused real damage to the interest of the defence or prosecution.
In the present case, the Constitutional Court took into consideration the interest of simplifying criminal justice as weighed against the fundamental rights of the person against whom proceedings were being taken. As a consequence of weighing these interests, the Court held that the legislature, by providing that in misdemeanour proceedings the court of second instance can only reverse the judgment of court of first instance if the judgment of the lower court did not decide on all aspects of the accusation (and thereby committed a relative violation of procedural rules), limited unconstitutionally the essential content of the fundamental right to a fair trial and the right to defence.
The Court also examined whether the disputed provision of the Code of Criminal Procedure violated the right to legal remedy. According to the second sentence of Article 57.5 of the Constitution, the right to a remedy may be restricted by a statute passed by a two-thirds majority of the Members of Parliament present and in the interest of adjudicating disputes in a reasonable time as well as being proportional thereto. The Court, referring to its previous Decision no. 1437/B/1996, held that neither the basic right to legal remedy nor the right of appeal guaranteed by the Code of Criminal Procedure equals a ubjective right to appeal against the judgment of the court of second instance which reverses the facts established by the lower court. It does not follow either from the fundamental right to a remedy that it is always the court of first instance that should establish the facts of the case. Besides, it does not infringe any constitutional provision that the court of second instance has a broad power concerning the reversal of judgment, since Article 275 of the Code of Criminal Procedure prohibits the court of second instance from finding the accused guilty on the basis of the facts established by the court of second instance itself, if the court of first instance failed to establish the guilt of the accused.