The Constitutional Court established in its decision announced in its open session of 13 June 2017 that certain provisions of the Act on National Security Services violate the judicial independence enshrined by the Fundamental Law and the fundamental right to the respect of privacy, therefore it annulled these provisions. Although the protection of national security interests is a constitutional objective and at the same time the duty of the State, the challenged regulation may open the door to misuses that are incompatible with judicial independence. According to the Constitutional Court, the prominent role fulfilled by judicial independence in terms of the rule of law requires the rules pertaining to the judicial branch of power to be extremely clear.
The President of the Curia asked for the establishment of the lack of conformity with the Fundamental Law and the annulment of those provisions of the Act on National Security Services that deal with the national security vetting of judges and the reviewing of the national security vetting procedure. According to the petitioner, the Act exempts Members of the Parliament from the scope of persons affected by national security vetting, but judges are not exempted, thus opening the door to the arbitrary selection of the affected personal scope. According to the petitioner’s concerns, it is not possible to establish with certainty which judges are subject to the relevant regulation and which ones are not. As claimed in the petition, as the challenged statutory regulations violate – among others – legal certainty originating from the rule of law, the principle of division of powers, the right to lawful judge and the principle of judicial independence, they are in conflict with the Fundamental Law.
The Constitutional Court found that the petition was well-founded and it established that certain parts of the text of the Act on National Security Services are in conflict with the Fundamental Law therefore it annulled those provisions. In the case concerned, the Constitutional Court implemented the weighing between the alleged or real national security interest and the violation of the fundamental rights claimed by the petitioner. According to the Act, the unrestricted national security vetting of judges may become the general rule, however, in the opinion of the Constitutional Court, there is no national security interest resulting directly from the Fundamental Law that would justify its necessity.
The appropriate regulation of the termination of the service relationship is an essential element of judicial independence. The Constitutional Court established that “not maintaining” the judicial service relationship after the national security vetting may open the door to misuses which is incompatible with the requirement that judges – appointed by the President of the Republic – may only be removed from office on grounds and according to procedures specified in a cardinal Act.
The Constitutional Court also established a conflict with the Fundamental Law regarding certain elements of the new regulation dealing with the review procedure of national security vetting by claiming that the content of these provisions is not clearly defined.
Judge Dr. Ágnes Czine attached a concurring opinion and Judge Dr. Mária Szívós attached a dissenting opinion to the decision.