HUN-2001-2-006
a) Hungary / b) Constitutional Court / c)   / d) 01-06-2001 / e) 17/2001 / f)   / g) Magyar Közlöny (Official Gazette), 2001/61 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
Sources - Techniques of review - Concept of constitutionality dependent on a specified interpretation.
General Principles - Certainty of the law.
Institutions - Judicial bodies - Organisation - Members - Status.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
 
Keywords of the alphabetical index:
 
Judge, exclusion / Impartiality, subjective / Judge, trial, serving.
 
Headnotes:
 
It is in accordance with the principle of a fair trial and its fundamental element, the impartiality of the judge, that the judge who notifies the Court about his or her impartiality must not serve as a trial judge in a given case.
 
Summary:
 
A judge of a city court initiated the proceedings before the Constitutional Court, because in the course of a pending case he considered Article 35.1.c of the Code of Criminal Procedure to be unconstitutional. Under this provision, judges who notified the judiciary about their bias in a particular case should be disqualified from service as trial judges in those cases until their notification has been fully processed and the issue resolved.
 
According to the petitioner, the provision was unconstitutional, because it was open to more than one interpretation and the wording made it possible for the president of the court to overrule the notification of the judge and to compel that judge to continue to sit at the court.
 
Under the Code of Criminal Procedure, the judiciary is compelled to respect the general legal principle that judges must be both subjectively and objectively impartial. Subjective impartiality means that the judge has to be aware of their own impartiality. When the judge notifies the court about his or her bias, his or her lack of impartiality is beyond doubt. The president of the court examines the notification on the judge's bias notwithstanding the fact that the judge himself gave the notification. It is important to have such a procedure in order to avoid false notifications. It is against the principle of judicial impartiality, however, that the provision could be interpreted in such a way that the judge can be coerced to continue serving as a trial judge after a valid notification. Judges should be impartial, and what is equally important is that the external appearance of the impartiality of judges should be preserved. The president of the court should not have a discretionary power concerning the question of impartiality. The judge who is biased in a given case, and who notifies the court about this, should be excluded from trying the case.
 
The Constitutional Court, instead of declaring the provision at issue null and void, maintained it in force with a given constitutional meaning. According to this, when applying Article 35.1.c of the Criminal Procedure Code, the judge who notifies the court about his or her bias must not serve as a trial judge in a given case.
 
Supplementary information:
 
Five Justices attached separate opinions to the decision. According to these opinions, the Court should not have declared the omission unconstitutional. The regulations of the Act on Freedom of Association and the Code on Civil Procedure currently in force provide sufficient guarantees to avoid lengthy court proceedings when registering associations.
 
Languages:
 
Hungarian.