The constitutional review of the Act on the Organisation and Administration of the Courts and the Act on the Legal Status and Remuneration of the Judges

13 June 2013

The petition for ex post review of conformity with the Fundamental Law has been submitted to the Constitutional Court by the Hungarian Government following the Opinion of the Venice Commission on the cardinal Acts on the Judiciary. In this petition the Government requested the review of more provisions of Act CLXI of 2011 on the Organisation and Administration of Courts (hereinafter AOAC) and Act CLXII of 2011 on the Legal Status and Remuneration of Judges (hereinafter ALSRJ) regarding the constitutional principles of rule of law and judicial independence.

The petition requested the review of the procedures on the uniform application of law and their effect on the judges; objected the regulation of the AOAC that prescribed that the President of the NJO shall state the reasons of his or her decisions only where applicable; expressed concern about the regulation regarding the replacement of the President of NJO and regarding the occupation of presidency of National Judicial Council (NJC) by members of NJC in a half year rotation; and that the non-judge members of the NJC shall attend the meetings without right to vote.  Constitutional review has been requested regarding the competence of the President of NJO which gives the possibility to declare the application procedure for judicial posts at courts unsuccessful; the conditions of the election concerning the President of Curia; excessively high number of those provisions that had been declared as cardinal regulations in AOAC and ALSRJ; restricted possibility to review the appointment of judges; regulations of the transfer of judges without their consent; and the regulations concerning the retaining for a month of half part of the remuneration of judges suspended from the office.

Following the examination of the regulations of AOAC and ALSRJ, the Constitutional Court has annulled those regulations that are transitory, address succession issues, and demonstrating the compliance with the EU regulations, because these regulations exceeded the authorisation of the Fundamental Law when they were qualified as cardinal provisions. These annulled regulations are not directly referring to the new judicial organisation and administration and to the legal status and remuneration of the judges; it contains provisions that have transitory chararcter. As a result of the annulment, the concerned provisions are still part of the Acts, but they are deprived of their cardinal nature.

As for those provisions of the ALSRJ that provide opportunity to the President of NJO and to the President of Curia to declare discretionally the application procedure for judicial posts at courts unsuccessful, the Constitutional Court has declared unconstitutionality by omission because in the application procedure the cases and the reasons are not properly regulated regarding the requirement of legal certainty when more valid and ranked applications are received in time.

In connection with the regulation of AOAC that the President of NJO shall state the reasons of his or her decisions only when applicable, the Constitutional Court has declared a constitutional requirement, namely that the President of NJO is bound to state the reasons of his or her decisions in case the decisions concerne staff issues and when legal remedy is possible. The reasoning shall be reasonable and it shall take the concerned person’s right to legal remedy into consideration.

The Constitutional Court has rejected that petition which requested the constitutional review of the conditions of the election of the President of Curia. Further petitions that object to other provisions of the AOAC and ALSRJ, after the examination of its merits, has been refused by the Court.

In connection with this case, the Constitutional Court has examined the question of the quotability of its previous decisions with regard to the regulations of the Fourth Amendment of the Fundamental Law (25 March 2013). The Fourth Amendment added Point 5 (with effect from 1 April 2013) with the following text “The Constitutional Court rulings given prior to the entry into force of the Fundamental Law are hereby repealed. This provision is without prejudice to the legal effect produced by those rulings.” According to the position of the Constitutional Court and regarding this provision, the use of the arguments in the decisions dated before the Fundamental Law shall be reasoned with sufficient detail. Ignoring the principles from the previous decisions is possible even if the content of certain provisions of the previousConstitution and the Fundamental Law is the same. However, the way that domestic and European constitutional development has done so far, the regularity of constitutional law affectsthe interpretation of the Fundamental Law as well.

Dr. Béla Pokol, Dr. István Stumpf and Dr. Miklós Lévay judges attached concurring opinion and Dr. Mária Szívós, Dr. László Salamon, Dr. István Balsai, Dr. Péter Paczolay, Dr. András Bragyova, Dr. Imre Juhász, Dr. László Kiss judges attached dissenting opinion to the decision.