HUN-2013-3-009
a)  Hungary / b)  Constitutional Court / c) / d)  05-12-2013 / e)  36/2013 / f)  On the constitutional review of judicial case transfer / g)  Magyar Közlöny (Official Gazette), 2013/202 / h) .
 
Keywords of the systematic thesaurus:
 
 
Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
Sources - Hierarchy - Hierarchy as between national and non-national sources - European Convention on Human Rights and constitutions.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
 
Keywords of the alphabetical index:
 
Lawful judge, principle / Judicial case, transfer.
 
Headnotes:
 
A regulation, previously in force, which had allowed the transfer of judicial cases, was contrary to the right to a fair trial under both the Fundamental Law and the European Convention on Human Rights; in particular, the principle of the lawful judge and the right to an impartial court. The regulation failed to fully define instances in which case transfer was permissible, authorised the President of the National Office for the Judiciary to appoint the acting court at his or her discretion, and did not provide any remedy for the concerned person against the decision of the President of the National Office for the Judiciary concerning the case transfer.
 
Summary:
 
I. The defendants in two different criminal cases – which had been transferred from the competent courts to other courts – challenged the case transfer regulation as being contrary to the Fundamental Law and international human rights treaties, including the European Convention on Human Rights. The petitioners argued that the case transfer, which was applied in their cases as well, violated the essential guarantees of justice.
 
Since the petitioners did not have the right to initiate the review from the point of view of international law, the Court in this respect rejected the petition, but at the same time sua sponte examined whether the concerned provision was contrary to an international treaty; namely, the European Convention on Human Rights. As the Constitutional Court has taken into consideration if certain fundamental rights – i.e. the essential content of fundamental guarantees of justice – are defined in the Fundamental Law in the same way as in the Convention, the level of legal protection provided by the Constitutional Court cannot be lower than the level of legal protection provided by the European Court of Human Rights.
 
II. The Constitutional Court declared that the concerned provisions, which had since been repealed, violated two requirements of fair trial: the principle of the lawful judge and the right to an impartial court.
 
The Constitutional Court pointed out that the requirement concerning the courts – that are established by an Act in accordance with the Fundamental Law and the Convention – involves the principle of the lawful judge. This means the right to a judge designated by a pre-established distribution of cases and based on pre-defined rules of competences and jurisdiction in an Act. The challenged regulation did not meet this requirement, given that some conditions of the transfer of the cases were not defined in the Act. The concerned regulation authorised the President of the National Office for the Judiciary to appoint the acting court at his or her discretion, which resulted in violation of the principle of the lawful judge.
 
The Court referred to the Venice Commission opinions given on the Cardinal Acts on the Judiciary CDL-AD(2012)001, CDL-AD(2012)020, paras 60-74, 90-91 and the CDL-AD(2013)012 opinion of the Venice Commission on the Fourth Amendment to the Fundamental Law (paras 73-74). In these documents, the transfer of cases has been strongly criticised by the Venice Commission. According to the Commission, the system of transferring cases was not in compliance with the principle of the lawful judge.
 
In addition, the Constitutional Court declared that the concerned regulation, without any guarantees, also violated the requirement of the right to an impartial court. The transfer of cases may comply with the previously mentioned requirements only when the rules for the transfer of cases are transparent, pre-defined and clear. The objective requirement for impartiality may be fulfilled only when the regulation ensures adequate guarantees to exclude any doubt concerning the partiality of the court. The Constitutional Court held that the challenged provisions fulfilled neither the requirement of impartiality nor the appearance of impartiality that are guaranteed in the Fundamental Law and the Convention.
 
The Court accordingly held that regulation also to be contrary to the Fundamental Law and the Convention given that it did not provide any remedy for the concerned person against the decision of the President of the National Office for the Judiciary concerning the case transfer.
 
The petitioner also requested review of the decision of the President of the National Office for the Judiciary. According to the Court, this decision was not a judgment, but an administrative decision. As a result, to review it as a constitutional complaint was not possible, thus this part of the petition was rejected.
 
III. Justices István Balsai, Egon Dienes-Oehm, Imre Juhász, László Kiss, Barnabás Lenkovics, Béla Pokol, László Salamon and Mária Szívós attached dissenting opinions and Justice Miklós Lévay attached a concurring opinion to the decision.
 
Cross-references:
 
- no. 166/2011, Bulletin 2011/3 [HUN-2011-3-008].
 
Languages:
 
Hungarian.