HUN-2017-2-001
a)  Hungary / b)  Constitutional Court / c) / d)  19-06-2017 / e)  12/2017 / f)  Annulling certain provisions of Act CXXV of 1995, on national security services / g)  Magyar Közlöny (Official Gazette), 2017/93 / h) CODICES (Hungarian).
 
Keywords of the systematic thesaurus:
 
 
General Principles - Separation of powers.
General Principles - Weighing of interests.
Institutions - Judicial bodies - Organisation - Members - Status - Irremovability.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Independence.
 
Keywords of the alphabetical index:
 
Judiciary, independence / Judge, independent / National security / National security, control.
 
Headnotes:
 
The general obligation on judges to undergo a national security verification affected their right to private life and the independence of the Judiciary, especially the principle of irremovability.
 
Summary:
 
I. Having been authorised by Article 24.2.e of the Fundamental Law and by Article 24.1 of Act CLI of 2011 on the Constitutional Court, the President of the Curia initiated a posterior norm control procedure at the Constitutional Court.
 
The petitioner requested the annulment of certain textual parts of Sections 69.2.b; 70.2; 71.2.e; 71.4; 72/B.2.e; 72/B.8; 74.g of Act CXXV of 1995 on the National Security Services (hereinafter, the «NSSA») that concern ordinary judges. The regulations were added to the NSSA by Act CIX of 2014.
 
Before 2013, the NSSA required national security verification only for judges who authorised covert information-gathering, and in cases that were specified in other Acts. The national security examination was to be initiated by the President of the Budapest-Capital Regional Court. The President of the Curia stated that the first amendment (Act LXXII of 2013) to the NSSA altered the whole concept of the very Act and it converted the need of the verification into a general obligation for judges. The Constitutional Court, in its Decision 9/2014, found several elements of the new legislation contrary to Article VI of the Fundamental Law (right to private life, protection of personal data) and annulled them.
 
Firstly, the President of the Curia stated that, submitting the judicial profession, by its very nature, to such an obligation violated Article B.1 (legal certainty); Article C.1 (separation of powers); Article XXVIII.1 (right to fair trial, right to an independent and impartial court established by an Act); Article 26.1 (independence of the Judiciary). By doing so, the NSSA defines the judicial profession as one that falls under its general scope. The petitioner claimed that applying the same rules to the judiciary and to the executive branch was contrary to the principle of the separation of powers. The rule was also contrary to the right to an independent and impartial court established by law, since the denial of the verification would result in the removal of the judge, even if the procedure was on-going.
 
Secondly, the new regulations were against the principle of clarity and legal certainty, which would lead to arbitrariness. Thus, the petitioner requested the Constitutional Court to declare that an omission was made on the side of the law-maker, violating Articles C.1, XXVIII.1 and  26.1 of the Fundamental Law, since the NSSA did not contain judges as exceptions from its general applicability. The President also initiated the constitutional review of the regulations of the NSSA that had not been annulled in Decision 9/2014 of the Constitutional Court.
 
Thirdly, the petitioner found contrary to the right to an independent and impartial court established by law and to the independence of the Judiciary the regulations of the NSSA, which provided that no judicial office could have been filled or the judge was to be moved out if a national security risk was found during the verification process.
 
Fourthly, the amendment to the NSSA practically re-regulated what the Constitutional Court had annulled in Decision 9/2014, since it allowed supervising procedures. The national security verification was to be valid and to be reviewed every five years, but the NSSA allowed the supervising procedure within this period with no limits (before Decision 9/2014 was delivered, it had been called continuous national security control). Such regulations were in violation of the separation of powers; right to an independent and impartial court established by law and with the independence of the Judiciary. The President of the Curia stated that these rules were also in violation of Article VI of the Fundamental Law (right to private life, protection of personal data).
 
II. The Constitutional Court found that all judicial professions and namely certain parts of it fell under the scope of the NSSA. Thus, the requirement of the national security verification was to be applied concerning all judges who were about to enter into ? or who had been already in office. The only exceptions were the President of the Curia and the President of the National Office for the Judiciary. Judges were also excluded, who were entitled to obtain confidential information by another Act.
 
According to the NSSA, the verification proceedings could have been initiated by the President of the Curia, the presidents of the courts of appeal, the presidents of the regional courts and by the Director of the National Security Authority.
 
Firstly, the Constitutional Court acknowledged that the protection of national security interests were not only legitimate aims, but they also implied an obligation on the State. The main goals of the national security examinations were investigation and prevention. In abstract, such an aim was not contrary to the Fundamental Law. The proceeding was to be done by filling out a form of various questions on private and sensitive data; moreover it could have included observation and recording of intimate details.
 
The independence of the Judiciary was an achievement of the Hungarian historical Constitution. In the light of its case-law, the Constitutional Court also emphasised that the very principle bore a special constitutional significance. The protection of the employment of judges was the essence, enshrined in Article 26.1 of the Fundamental Law. Judges could not be instructed in their adjudicating activities. Their independence was to be secured also by guarantees respecting their legal status, organisation and finances. To sum up, the verification procedure affected the right to private life and the independence of the Judiciary, especially the principle of irremovability.
 
The Constitutional Court concluded that no justification for such a broad obligation could be derived from Article 46.1 of the Fundamental Law (on the national secret services). The NSSA should have struck a fair balance between the interest of national security and the right to private life. The scope of the application should have also been formulated clearly.
 
Thus, the general obligation was not necessary and it violated the independence of the Judiciary.
 
Secondly, the affect of the verification on the status of a judge was examined. If the verification was denied, the judge could not have entered into office or he or she was to be discharged. According to Articles 9.3.k and  26.2 of the Fundamental Law, judges shall be appointed by the President of the Republic in line with the provisions of a cardinal Act. Only such a cardinal Act could formulate the terms of removing a judge. The NSSA stipulated that employment could be prolonged if the person exercising the employers’ rights allowed it to do so. However, such a rule could lead to arbitrariness that is contrary to the independence of the Judiciary.
 
Thirdly, the supervising procedure could have been initiated by authorised officials without any legitimate – clear – aim or reason. Any sort of suspicion could have been the basis of such an investigation. The Constitutional Court ruled out that the NSSA granted too broad a possibility to investigate, not just the judge who was concerned, but also his or her connections. However, such an intrusion could have only been accepted in line with strict regulations and sufficient guarantees. The Constitutional Court added that the NSSA would still infringe the constitutional requirements having been formulated in Decision 9/2014. Thus, it violated the right to private life and the protection of personal data, moreover, the independence of the Judiciary.
 
III. Justice Ágnes Czine attached a concurring reasoning and Justice Mária Szívós a dissenting opinion to the decision.
 
Cross-references:
 
Constitutional Court:
 
- no. 9/2014, 21.03.2014, Bulletin 2014/1 [HUN-2014-1-003].
 
Languages:
 
Hungarian.