HUN-2001-2-007

a) Hungary / b) Constitutional Court / c)  / d) 11-07-2001 / e) 33/2001 / f)  / g) Magyar Közlöny (Official Gazette), 2001/79 / h) .

Keywords of the Systematic Thesaurus:

05.03.13

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial.

05.03.13.15

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.

05.03.13.19

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms.

Keywords of the alphabetical index:

Judge, exclusion / Party, equality.

Headnotes:

The Criminal Procedure Code's restrictions, in cases involving the exclusion of judges, which allow the court to hear the statement of the prosecution but not the opinion of the accused or his counsel, violates the principle of equality of arms, the impartiality of judges and the right to a defence.

Summary:

A petitioner submitted a constitutional complaint to the Constitutional Court asserting that he was aggrieved by the fact that, at his trial, the courts applied an unconstitutional provision. Under this provision of the Criminal Procedure Code, the appellate court was to obtain the statement of the prosecution when deciding on the issue of whether a specific motion calling for exclusion of a judge was founded or not. In the petitioner's view, this rule infringed the principle of equality of arms, the impartiality of judges and the right to a defence. Article 57 of the Constitution contains inter alia the rights to judicial legal protection, to an impartial, fair and public trial, and the right to a defence.

The principle of equality of the parties in legal proceedings is a cardinal principle of procedural fairness. It is enshrined in Article 57 of the Constitution. The challenged provision of the Criminal Procedure Code required the court to hear the statement of the prosecution, but not the opinion of the defence in a case involving the exclusion of a judge. Moreover, the provision did not even require the accused or his counsel to be notified about the exclusion procedure. Therefore, it was often the case that the accused was not informed about proceedings to exclude the trial judge. The defence became aware of the fact that the president of the court appointed a new judge only after the appointment. In this way, the defence did not have the opportunity to make comments on the exclusion itself and on the newly appointed judge.

The Constitutional Court declared the challenged provision null and void, since it was held to be unconstitutional.

Supplementary information:

Two Justices attached separate opinions to the decision. In their view, not only were those three points of the challenged provision unclear, ambiguous and therefore unconstitutional, but the whole provision should have been declared null and void.

Languages:

Hungarian.