HUN-2005-3-009

a) Hungary / b) Constitutional Court / c)  / d) 14-11-2005 / e) 42/2005 / f)  / g) 2005/149 / h) .

Keywords of the Systematic Thesaurus:

01.03.01.01

Constitutional Justice - Jurisdiction - Scope of review - Extension.

01.03.05.12

Constitutional Justice - Jurisdiction - The subject of review - Court decisions.

03.04

General Principles - Separation of powers.

03.09

General Principles - Rule of law.

03.13

General Principles - Legality.

04.07.04.03.01

Institutions - Judicial bodies - Organisation - Prosecutors / State counsel - Powers.

04.07.07

Institutions - Judicial bodies - Supreme court. (Supreme Court, uniformity decision, review )

05.02.02

Fundamental Rights - Equality - Criteria of distinction.

05.03.39

Fundamental Rights - Civil and political rights - Right to property.

Keywords of the alphabetical index:

Prosecution, obligatory nature / Prosecution, crime, task of the prosecutor / Prosecutor, power, exercise, other state organs.

Headnotes:

The Court has, for the first time, reviewed the constitutionality of a uniformity decision by the Supreme Court. Uniformity decisions by the Supreme Court aim at securing a uniform and comprehensive interpretation of certain laws, and according to Article 47.2 of the Constitution, they are binding upon lower courts.

Summary:

I. Certain provisions of Act XIX of 1998 on Criminal Procedures (hereinafter referred to as "the Act") governing the position of aggrieved parties and private prosecutors and the uniformity decision on this point by the Supreme Court were challenged on the following grounds:

The state represents the interests of all citizens. When it is party to criminal proceedings, it is performing this duty. The task of prosecuting crimes usually falls to the public prosecutors. The wording of the Act does not reflect this notion. The definition of the aggrieved party and his right to substitute the public prosecutor in certain cases suggest that the institution of private prosecutor has the sole purpose of enforcing private interests. In extreme situations - if state property rights are in jeopardy - the state itself can act as a private prosecutor. For these reasons, this right is limited to natural and legal persons. The Chief Prosecutor of Hungary petitioned the Constitutional Court to assess the constitutionality of Part I of the uniformity decision. As concerns Part II of the uniformity decision, the petitioner argued that insufficient distinction was drawn in the decision to the difference between the state being directly affected by a crime or only through one of its organs. The suggestion was made that as the uniformity decision contains terms that are not precisely defined, it contravenes the principle of rule of law.

II. The Court reviewed the meaning attributed to the disputed provision of the Act by the uniformity decision and its compliance with the Constitution. The Court emphasised that the defence of society's legal order is primarily the task of the state, and thus the state has an obligation to prosecute crimes. This obligation stems from the principle of rule of law and the right to a fair trial. Prosecution by its very nature affects individual rights, so it must be strictly defined, both substantially and procedurally. The public prosecutor and the accessory private prosecutor have different roles in criminal proceedings. Private prosecutors do not have to take on the constitutional burdens of the public prosecutor neither do they have to be objective. The Court also looked at issues relating to the right to peaceful enjoyment of property and the prohibition on discriminating between public and private forms of property without sufficiently serious constitutional justification. This could result in heavier sanctions in the case of certain forms of public property.

The Court found that although the provisions of the Act were in line with the Constitution, the interpretation the uniformity decision gave to them did not comply with it. It empowered organs and institutions to take on a prosecutor's role, which are not entitled by the Constitution to do so. This authorisation is at odds with the principle of separation of powers and infringes the constitutional status of public prosecutors. The uniformity decision unnecessarily limits the constitutional protection offered by the public prosecutor acting under its constitutional mandate. The role of prosecution cannot be vested in any other state organ than the public prosecution: it is unacceptable that in cases where there is no basis for public prosecution, another state organ takes over the task as an accessory private prosecutor.

Furthermore, Article II of the uniformity decision is unconstitutional. It effectively creates a new norm, and goes beyond the boundaries of interpretation.

Supplementary information:

Justice Harmathy gave a dissenting opinion. In his opinion, the uniformity decision does not create a new legal norm, but simply interprets the provisions of the Act. Therefore, the Court should not have overturned the uniformity decision. Justice Tersztyánszky, in a separate opinion, asserted that the Constitutional Court did not have competence to review the constitutionality of a legal norm's judicial interpretation. If a legal norm with a given content is unconstitutional, then the Constitutional Court should annul the legal norm itself.

Languages:

Hungarian.