Press release regarding the constitutional examination of judicial case transfer7 December 2013
The Constitutional Court has decided about the constitutional complaints which alleged that the possibility of judicial case transfer was contrary to the Fundamental Law. The CC has declared that the provision, which was effective earlier and allowed the case transfer, was contrary not only to the Fundamental Law and but also to international treaty.
Defendants of two criminal cases – that were transferred from the competent courts to other ones –turned to the Constitutional Court to object the regulation of the case transfer contrary to the Fundamental Law. According to the petitioners, the case transfer, which was applied in their cases as well, violated the essential guarantees of the justice. The Constitutional Court also examined whether the concerned provision was contrary to international treaty, namely to the Convention for the Protection of Human Rights and Fundamental Freedoms. As the Constitutional Court has taken into consideration if certain fundamental rights – i.e. essential content of fundamental guarantees of the 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.
On the one hand, the Constitutional Court has declared that the concerned provisions, that were meanwhile repealed, are/were violated two requirements of the fair trial, so the right to lawful judge and the right to impartial court.
The Constitutional Court has pointed out that the requirement concerning the courts – that are established by Act in accordance with the Fundamental Law and (with) the Convention – involves the right to lawful judge. This means the right to a judge that is designated by pre-established distribution of cases and based on pre-defined rules of competences and jurisdiction in Act. Some conditions of the transfer of the cases where not defined in the Act. The concerned regulation authorised the President of the National Office for the Judiciary to appoint the acting court discretionally, which resulted in the violation of the right to lawful judge.
On the other hand, the Constitutional Court has declared that the concerned regulation without any guarantees violated the requirement of the right to impartial court as well. The transfer of cases may comply with the previously mentioned requirements only when the rules of the case transfer 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. The Constitutional Court has declared that the examined provisions did not fulfil the requirement of impartiality and neither the appearance of impartiality that are ensured in the Fundamental Law and the Convention.
That regulation has been found contrary to the Fundamental Law and the Convention as well as it did not ensure remedy for the concerned person against the decision of the President of the National Office for the Judiciary on the case transfer.
The petitioner requested the review of the decision of the President of the National Office for the Judiciary as well. According to the CC, this decision is not a judgement, it is an administrative decision and to review it as a constitutional complaint is not possible, thus this part of the petition has been rejected.
Dr. István Balsai, Dr. Egon Dienes-Oehm, Dr. Imre Juhász, Dr. László Kiss, Dr. Barnabás Lenkovics, Dr. Béla Pokol, Dr. László Salamon and Dr. Mária Szívós judges attached dissenting opinion and Dr. Miklós Lévay judge attached concurring opinion to the decision.