3 December 2017
As held by the judge who submitted the constitutional complaint, the Order of the president of NOJ imposed obligations on the judges the violation of which could even result in terminating the judge’s office. This is contrary to the Fundamental Law, as according to the Fundamental Law, rights and obligations pertaining to judges shall only be regulated in an Act – indeed, in a cardinal Act.
According to the challenged Order, the president of NOJ may issue not only mandatory orders but also non binding recommendations applicable to courts, judges and judicial staff members, containing a required conduct the violation of which may result in launcing a proceeding against the judge. The Constitutional Court established that rules of conduct affecting judicial independence may not be determined in such a document without binding force as it is not subject to constitutional supervision. Therefore the Constitutional Court annulled the part of the Order regulating recommendations.
Additionally, the challenged Order provides that the president of the court takes care of investigating reports about misuses and irregularities and of “applying the applicable legal consequences”. However, it does not contain any provision on the form the president of the court should take these measures. The Order provides for rules of conduct and concerning the violation of these rules the provision of the right to legal remedy should be essential, but the Order does not contain any provision guaranteeing it, and indeed, according to the Fundamental Law, it may not even contain such provisions. The Constitutional Court established: the examined provisions, for example the establishment of the violation of integrity, initiating the calling to account for a breach of obligation as well as the application of legal consequences violate both the right to legal remedy and the independence of judges. With account to the above, the relevant provisions of the Order are contrary to the Fundamental Law, therefore the Constitutional Court annulled them as well.
Judges dr. Ágnes Czine and István Stumpf attached concurring opinions and Judges dr. Imre Juhász, dr. Béla Pokol, dr. László Salamon and dr. Mária Szívós attached dissenting opinions to the decision.
Budapest, 30 November 2017