IT IS AGAINST THE FUNDAMENTAL LAW TO HAVE THE SAME GOVERNMENT OFFICE PROCEEDING WITH THE CASE BOTH IN THE FIRST AND THE SECOND INSTANCE

30 April 2019

One of the judges of the Budapest-Capital Administrative and Labour Court submitted a petition to the Constitutional Court. According to the judge, the right to legal remedy is violated by the fact that in the case before the court, in a matter related to waste management, the decision of first instance had been adopted by the Government Office of Pest County, and then – in accordance with the provisions of the law – the procedure of second instance was carried out by the same authority.

The Constitutional Court pointed out: the right to legal remedy is a constitutional fundamental right requiring that the affected person should have the possibility to turn to another organ or to another forum of the same organ for the review of a decision on the merits influencing his right or lawful interest. The Fundamental Law requires in each case the legal protection provided by the right to legal remedy to be effective, i.e. it should be actually enforced and it should be capable of remedying the injury caused by the decision.

The Constitutional Court holds that the rationalisation of the competences of public administration as well as the creation of a servicing State operating in a cost-effective way may make it necessary to reform the institutional system of public administration. Although the National Assembly and the Government enjoy a wide scale of rights to transform the organisations, these are not without limitations and they may only be enforced within the framework of the Fundamental Law. The obligation to provide for the possibility of appeal within the organisational system of public administration is not deductible from the Fundamental Law, however, if the legislator offers this possibility, the requirements under the Fundamental Law on legal remedies should be applied to it as well. If a law provides that the same government office shall act both on first and second instance, then this regulation shall be held incompatible with the requirement under the Fundamental Law on turning to another organ or to the higher forum of the same organ.

The Constitutional Court, therefore, concluded: the challenged regulation is contrary to the right to legal remedy as in the case of the appeal procedures carried out in certain environmental matters the regulation fails to meet the requirement of turning to another organ or to the higher forum of the same organ. The Constitutional Court annulled the challenged provision and ordered a prohibition of application in certain cases.

Justice dr. Béla Pokol attached a concurring reasoning to the decision.