A conspiracy theory and its victims
Judicial reform in recent years has
become more and more noticeable in the spirit of being anti-liberalism. This
ideology sees an irreconcilable conflict with the right of freedom and between
private interests and national interests.
Christian
values uphold the right of freedom, such as respecting human dignity in the eyes
of those who declare that there is no other, as anti-national products of
intellectual schemes of the conspirators,
which, according to the “traitors ", the obstacles that are set in
front of the objective is to achieve national self-determination.
This
idea is presented to us successfully by the media, that many people believe that
our country is constantly under threat, such as by the European Union, by the international
financial world, and it is continuously generating fear, anxiety, hatred, and
aggression. The battle brings an almost paranoid behavior to the majority of the
Hungarian society.
One
artificially created image or illusion from the enemy is liberalism, and its
ideals of liberty rights. The radical right did not by accident consider China
as a model, where civil liberties, the judicial independence of the judiciary also
dramatically overshadows the compassion, rejected as "liberal
blight", a denied relationship not only with Europe, but it’s ancient
traditions, and in this spirit often used the death penalty for offenses
against public property.
The right of freedom therefore is a
threat in many people’s conscious that needs to be weakened or, in extreme
cases, they believe that - if the country is compared to a human body - to be
eradicated as a disease-causing bacteria. Staying with this analogy in this
case, many people don’t realize that it ‘also exterminates the healthy
bacterial flora ", which is known to create illness in the body. The
Hungarians in this permanent struggle don't realize that the enemy’s image is
an illusion, and that they themselves are deprived of their liberty to human dignity,
spiritual and material possibility of development, based on the order of the
divine law to the human legal system of a harmonious state structure from which
the synergies between freedom and order, and so it has become a victim of its
own.
While "freedom fighters"
advertise the radical transformation of the judiciary turn against the
conservative Christian value system in which they advertise, they want to
spread it with fire and sword. The renowned jurist professor János Zlinszky
draws attention to the Christian roots of human rights in his study: “Human
rights, moral-filled items." It reflects
the existing values. Their values of the common European culture can be
derived from the three pillars of Greek philosophy, Roman law and Christian
ethics. The values of modern Europe are both in philosophy and law in the
Christian-mediated belief. (...) ... The human rights of ius divinum order,
human dignity, the dignity of man created in God's image, the balance of peace
in the weak and needy, for the victims of devotion (love) is based on
solidarity. "[1]
Represented
defendants in cases - the exceptions to the basic rules under authority of
restricted rights?
In a
constitutional state there is a basic constitutional right to receive enhanced
protection, only a part of those may be limited, but only if certain statutory
criterias are met. The basic legal rights surrounding the solid bastion of existence
is a guarantee against the excessive power of the state.
The fundamental right limitation of the
criteria system has at least three components: on one hand, a fundamental right
can be restricted accordingly only for some serious reason. This could be
another fundamental right of protection or enforcement, or in any other
constitutional institution, or target value. On the other hand, the restriction
must be necessary, that is not considered to be a fundamental right limitation
of the constitution, if the other fundamental rights restrictive means may not
be available. And thirdly, the restriction of a fundamental right must be
proportionate to the aim pursued, if the fundamental right limitations is a
result from the more serious charges than the benefits of the restrictions, the
restrictions are unconstitutional.[2]
In 2011 the legislature, however, created a
law specifically for the so-called priority issues by which it ignored the
strict criteria, a separate category listed in these accused groups of priority
cases, as such, not subject to basic constitutional rights like everyone else
who is entitled to the protection of a high degree.
On July 12, 2011 the
Parliament adopted the specific procedure and the judiciary amendments to other
acts on the 2011th Act LXXXIX. law, which amended the Criminal Procedure
including the 1998th XIX. law. The amendment, under the jurisdiction of a new
fund, was established for the highlighted cases. According to the procedure for
highlighted cases[3],
the court also has jurisdiction - decision based on the Chief Prosecutor - where
the attorney implements the process within a reasonable time and in order to
ensure priority treatment of the accused.[4]
The Hungarian Association of Judges,
even before the adoption of the law, proposed a revision of the amendment
provisions, because it considered the trial court's prosecutor, and the
selection "prejudiced towards the legitimate right to judge.[5]
The Constitutional Court of the
number 166/2011. decisions[6]
dated on December 20th 2011, also examined the above mentioned provisions
unconstitutionality, and found that the Criminal Procedure of the 1998th XIX.
17th Law § (9) is also unconstitutional and in conflict with international treaty,
therefore that provision was annulled. In so doing, the Constitutional Court
has also stated that the 17th paragraph § (9) of the regulation of the
appearance of impartiality does not comply with the conditions and breaches the
European Convention on Human Rights, which in Hungary 1993. XXXI. Law was
promulgated. 6 of the Convention Article states as follows:
,,The
right to a fair trial:
1.Everyone has the right to issue the law by an
independent and impartial tribunal fair and public hearing within a reasonable
time, and a decision on his civil rights and obligations of, or the merits of
any criminal charge against him concerned. "
With
the destruction of this legislation not all members of the Constitutional Court
agreed, interestingly, among the decison-makers the Constitutional Court judge
who of course had a separate opinion attached to the decision, and who adviced three
times confirming or rejecting the request for termination decision of the
pre-trial detention issue of Miklós Hagyó.
The
Constitutional Court annulled, becomes part of the Basic Law
In
the light of history it is surprising that the Constitutional Court was declared
unconstitutional by a qualified and destroyed legislation of the Basic Law,
among other provisions. On 31 December 2011 the Parliament adopted the
transitional provisions of the Basic Law, which is the 11th Article states as
follows:
,, (3)
of the Basic Law XXVIII. Article (1) shall be provided within a reasonable
period of judicial decisions and it is fundamental in order to enforce as long
as the courts balanced case load is realized. The President of the National
Judicial Office, in any case, will have a discussion on the general competences
other than a court, but also the court may appoint."[7]
Under
this provision the National Court prosecutor in the Office of the President has
been delegated the right to be court-appointed.
Chairman of the National Court
Registry took advantage of the transitional arrangements and the organization
of courts and administration of the Act provided by law 21 / 2012th (II.16.)
resolution of the Miklós Hagyó and 14 others against the acts of organized
crime, particularly detrimental to property crimes of misappropriation in the
conduct of criminal proceedings appointed Kecskemét Tribunal. Maybe it's not a
coincidence that the Pest Central District Court decided the same day, of
Miklós Hagyó and others counterfeiting private documents case, exempted them
from the accusation of committing a crime.[8]
As known, the Kecskemét Tribunal
(formerly known as Bács-Kiskun County Court) was the first instance of an
unduly harsh judgment on the John Zuschlag and Others case by the Court of
Appeal of Szeged. The decision has changed, and punishment of the accused was
significantly alleviated. Since then, it was also obvious that the Kecskemét
Tribunal is no less busier than the Metropolitan
Tribunal, and only hints at the cost can be met to reach the requirements of
the emergency, but only in substance and in fact are not.
Was the
decision of President of PCO justified?
The statistics did not
support the justification for this decision. The president of PCO won only four
percentage points with this designation when appointed to the Kecskemét
Tribunal instead of The Capital of Miklós Hagyó and others trial.
In Kecskemét it was 56 percent of the high proportion of cases, while in
Budapest it was 60 percent, and that is what the official reason was for the
Courts to have an equal load distribution.[9]
The Hungarian Helsinki Committee and
the Joint Declaration of the Association for Human Rights expressed concern about
the right of the President of the PCO that statistics are not evidence by the
levy altogether without reason, and so they have chosen a different designation
from another court. This drew attention to the fact that the procedures to
eliminate delays, and there are solutions that do not harm the legitimate right
to judge. Such reorganization is at the most crowded courts, the appointment of
judges, and the budget increase.[10]
Criticism of
the Venice Commission
The Council of Europe's advisory body
of constitutional matters, the Venice Commission, criticized the controversial
amendment. The history was that Foreign Minister János Martonyi - in response
to ET-Thorbjørn Jagland Secretary's letter in January, had asked the committee
to comment on the independence of the judiciary, the freedom of religion and
the elections of the Hungarian legislation. The Venice Commission expressed dissatisfaction
that the National Office of the President of Court of the judiciary in Hungary
in virtually all aspects acts as a key decision maker who has unlimited power
over no one on impartial scrutiny. He pointed out that only the Council of
Europe member states are not conferred on any person of such major powers,
including the selection of judges and other senior officers. In addition, the
extreme power of the Venice Commission to further aggravate the following
elements: repeated test periods, which undermine the independence of the
judiciary, the judges moved the possibility of severe consequences in the event
that you refused to move, the PCO President of the right issues to move to
another court. The Venice Commission concludes: the judicial system reform on
key elements is not only in contradiction with European standards (especially
in terms of independence), but also violate the due process rights. The
independence of the judiciary, including a strong system of checks and
balances, should be regulated by the Constitution and the Basic Law in light of
this change is needed.[11]
Submission to
the Constitutional Court
Setting aside the obvious offending
points, on the 16th of April 2012 the lawsuit against Miklós Hagyó and his
companions, defendants attorneys turned to the Constitutional Court. The
submissions were made by persons listed as Dr. Jánso Bánáti, president of the Hungarian
Chamber of Advocates, and Dr. Péter Bárándy, former Minister of Justice.
However, there was an accused and legal representative, who doesn’t mind the
fact of infringement, like Zsolt Balogh and his defender, Dr Iván Szabó who has
not signed the petition for the Constitutional Court.
In doing so, presented lawyers had
asked the Constitutional Court to annul the legislation at issue, concluding
that the annullment and the complaint of the criminal proceedings do not apply.
The laws are indicated as follows:
- The prosecution of 1998th XIX. Law 20 / A §.[17]
The rapporteur for a number of
fundamental rights violation petition also point out that the Basic Law and
international conventions were laid:
1.,Violation of XXIV.Article (1) of The Basic Law
XXVIII of the Basic Law. (1) lays
down the right to a legitimate judge, an independent and impartial court of law
and due process requirements. The same paragraph contains the cases within a
reasonable time for the examination of requirement as well. The Constitutional
Court of 1949. Act XX. Law (Constitution), the right to the legitimate judge,
the right to an impartial and independent judicial process requirement of the
principle of equality of arms, the rights of defense and the right of appeal is
partly due process (fair trial) of part previewed.[18]
1.,
The statutory right to judge:
The statutory right to judge means
that of the accused case in the court to proceed, which by law has jurisdiction
to, and in the court from which the judge is acting, who is acting upon the
internal allocation of cases that a court order is based on predetermined,
objective principles. The enforcement of this law is a precondition for the
independence and impartiality of the courts and due process.
In criminal cases the court of
jurisdiction and authority of the Act. 15 to 18. § detailed is regulated. The
previous rules also have made it possible that the initial law, court seized or
judge is to proceed another judge or court, on these issues, however the judges
decide in allocating cases to judges and the courts to regulate the order of
appointment within the justice system.[19]
It is important to emphasize that
while the court is within the organization, appointment procedures are usually
carried out by the courts, the superior court of jurisdiction within the
territory of the court shall appoint, and the President PCO is not bound by
such constraints.
So
that may have occurred to the President of the PCO by selecting Kecskemét
Tribunal. It not only drew the first-instance judge of the statutory law from
defendants, but by the law, and the originally second instance judges as well.
The Municipal Court procedure of the second instance acted by the Municipal
Court of Appeal, and The Court of Kecskemét superior forum is Szeged Court of
Appeal.[20]
The 17th paragraph § (9) to amend the
draft law is presented at the Curia (then Supreme Court) Criminal College which
has issued an opinion on the proposal, where the legitimate judge finds the
following: The "by law established, independent judiciary," a court
in the sense that its powers, composition and jurisdiction of the Act. Of the
draft law (...) in paragraph 17-18. §, in written reasons for eliminating the
jurisdiction where the law is not competent for the court rather than statutory
regulation, but the attorney general discretion to establish the competence of
reason. The right of the statutory judge requires that if there is any dispute
the court is required by law, pre-defined, to bstract accordance with the rules
formed. The drafted law in which the attorney general’s decision-making aspects
are vague in general, is impossible for neither the court nor the proceeding participants
to check.
The
consequences of that decision in court, however, in which the organizations and
individuals are participating in the procedure should uphold. The fact that the
prosecution in the case has jurisdiction of the court where the persons
involved in the procedure of residence or otherwise other than the court to
travel to is recognized and, second, that the court’s unpredictable amount of the
matter received, namely (...) the court organization from outside and the
decision of anyone to give an account is not required to the attorney
prosecuting on those instructions. "[21]
The reasoning of the opinion prevails
even if the attorney general has a statement on the PCO President replacements.[22]
2.,
The principle of impartiality:
The principle of impartiality of the
entire court system of general principle is that judges are impartial, all the
legitimate rights and interests of only subordinate to the law, and their
convictions will be assessed according to the cases. There is no doubt that the
legitimacy itself does not breach the right to judge is also a breach of the
principle of impartiality.
Confidence
in the judicial system to maintain, however, it is also necessary to maintain
the appearance of impartiality, that is, no doubt, to indulge in confidence
that of an impartial court. The impartiality and the perception of the whole
judicial process is essential, including the process of the President of the
PCO. The appearance of impartiality and without adequate legal safeguards can
not be achieved.[23]
The Constitutional Court's decisions
also reflect the fact that this principle should apply in all cases of legal
practice, it can not override any current legal policy goals.
The Constitutional Court last amended
17th § (9) examined the context of the right to a fair trial. The prosecution
examined a similar rule to the extent the provisions contained in this
constitutional complaint, subject to the rules that the prosecutor in the case
- also in the process to take place within a reasonable time - otherwise the
court other than the court itself could be prosecuted. The Constitutional Court
of the 57th Constitutional § (1) and 6 of the Convention Article 1 prosecution
is in conflict with the 17th and it’s been destroyed. § (9).[24]
On 17/2001. (VI.1.) CC, the
Constitutional Court stated:,, to avoid any situation that raises doubt about
the judge's legal impartiality. (...) The
judge must not only be impartial but also must look like he is. " 32/2002.
(VII.2.) CC. stated:,, the court must be subjectively free of personal bias or
prejudice from an objective point of view, the regulations should provide sufficient guarantees to exclude all doubts in this
respect. "[25]
3., The principle
of equality of arms:
The COA. 62nd § (2) of the transfer
of the case (highlight) the High Court and chairman of the courthouse addition
is initiated by the Prosecutor General, President of the PCO upon arrival of
the matter within 15 days.
63
§ (1) provides that if the attorney general was not the petitioner, the
Chairman of PCO is obliged to consult the attorney general's opinion. The
decision of the Chairman of the PCO the Presidents to appoint in criminal cases
and to inform the General Prosecutor.[26]
The selection process is the acting
prosecutor in criminal proceedings prosecuting major organizational leader
proposing the right to comment and be notified of the decision. Meanwhile, the
accused and defense counsel get no information nor about the ongoing selection process,
or the acquired data, or about declarations. The defence at the earliest
becomes aware that it is not according to the law court of competent
jurisdiction to hear the case, when decisions on the appointment are published
on the Internet, or when forwarding the indictment appointed by the court.[27]
Thereafter, the court appointed
criminal proceedings conducted by the prosecution is able to carry out the
investigation and prosecution of the indictment submitted to the court rather
than have a different prosecutorial agencies, the designated home court of prosecution
proceedings. So while the prosecutor's office in the case of selecting distant
court is able to resolve their regular appearance in court without additional
costs and expenses, without any particular time, and internal reorganization,
until the accused and defense counsel, who has been counting with, according to
the law, competent court costs and time-consuming procedure, relocation of
residence or where appropriate, the court forced them to travel.
Another
unresolved problem is that during the investigation the appointed defense (who
is operating the investigating in the same locality as the investigating
authority) as an already assigned defender would not be obliged to act as the
process operating counsel, whereas the process operating in the county other
than his counsel had not even ordered.[28]
The Prosecutor proposing right should
be pointed out, that does not meet the requirement of legal certainty to the
aforesaid, the matter within 15 days of arrival "is possible. It is not
clear that in the case of the Prosecutor when this period begins.[29]
The principle of equality of arms in
several decisions of the Constitutional Court also is dealt with. The 6/1998.
(III.11.) CC states that with due process, not named, but in general and
without being recognized as part of the "equality of arms", which in
criminal proceedings is to ensure that the prosecution and protection, the
prosecution and the defense have an equal chance and have applied to the facts
and form opinions on points of law and are able to take a position on them. The
equality of arms is not always the prosecution and the defense of their
respective prerogatives don’t always reveal their full identity, but in any
case require that the defence on
accusation possess comparable degree of permissions.[30]
33/2011. (VII.11.) CC decision of the
Constitutional Court took position on a very similar issue to this case -
prejudice to the impartiality of justice and equality of arms as well: „For example, if more than one designated
court can be considered, aspects of the accused and the interests are ignored,
and the court during the second instance is unilaterally with the prosecutor,
therefore they learn about the prosecution's position only. This legal solution
is able to raise doubt about the impartiality of justice, although the aim is
the selection and exclusion of impartiality. "[31]
2., Violation of
the Basic Law regulation XXVIII. Act. (3)
The rights of defense:
The right to defense is compromised
by the President of the PCO who conducted the selection procedure in the
context stated of equality of arms. While the representing prosecutor's office organizational
leader is charged with the selection process of the petitioner, expressiveness
and privileges are given to him, and with whom the decision must also be
disclosed, until the defense, even with the existence of a procedure for
identifying the process, may not be certain.[32]
In addition the right of defense is
also violated as a result of the transfer. The prosecutor's office can
achieve this office with a simple internal reorganization, and that the
assigned prosecution in court at its headquarters has authority to represent at
the trial court.
In
contrast, the accused and his authorized defense counsel, whom the initiation
of the proceeding acted in the belief, and calculated the costs borne by the
prosecution, at the litigation stage, according to the law, the court of
competent jurisdiction, will conduct it and now be forced to regularly travel
to a distant court. In the case of the
selection, the accused and the lawyer can be located where appropriate from
their residence hundreds of kilometers from the court prior to the trial where
it may be conducted, which in major cases means, that for several weeks
every or every second day they must appear in court. The distance does not only make it more difficult to appear at the
hearing, but also understanding of the process documents.[33]
The Constitutional Court has the
right to defense is generally defined as below the 57th Constitutional § (3)
based on the decision of the Basic Law substantially the same manner to the
right of defense: ,, ... The Constitution 57th § (3) provides that the persons
subject to criminal proceedings at all stages of the proceedings entitled to
legal defense. (...) ... The right to
defense is only unavoidably necessary and proportionate to the content of the
material can not be restricted. "[34]
The
technical limitation of the right of the Constitutional Court's position on the
above-mentioned 6/1998. (III.11.) CC can be summed up:,, the Constitutional
Court is not satisfied with the fact that the right of defense is formally
ensured, but also on the one hand the practical effect of requiring that, on
the other hand, explicitly extended this right to the accused and the defense’s
adequate preparations for exercise their rights.[35]
166/2011. (XII.20.) CC, an important
statement is made by the prosecutor, the court appointment of the present law
in the constitutional complaint: ,, In defense of the law to the
Constitutional Court decisions have stressed, that the provisions of the
Constitution, only the successful operation right of defense corresponds, that
only the unavoidably necessary and proportionate, the essential contents are
concerned and cannot be restricted. (...)
The trial court selected by the prosecutor is suitable to make it more
difficult for the effective rights of defence, potentially rendered impossible.
" [36]
The Constitutional Court notes the
trial court appointed by the President of PCO is also valid: the trial court
selected by the president of PCO is also suitable to make it more difficult for
the effective rights of defence, potentially rendered impossible. In
particular, if the during selection only the Prosecutor General has powers, the
defense has no rights to submit comments, neither for legal remedy and even the
reasons for its decision is not entitled to know.[37]
In the specific case, the
investigation of a case related to all aspects of Budapest (BKV case) took
place in Budapest, prior to the Budapest investigating authority, typically of
Budapest inhabitants with the contribution of capital lawyers. In numerical
terms, this means that it planned to summon 97 persons close to 80% of the residents
of Budapest or nearby Budapest.
The
decision of the president of PCO in this case is the Tribunal acts in
Kecskemét, which is about ninety kilometers away form the Metropolitan
Tribunal.[38]
In that context, it is noted that the
decision of the president of PCO making the regulation effective did not
contain any provisions on transfer that caused additional costs and,
consequently, this decision doesn't even possess.[39]
3., Violation of
The Basic Law XXVIII.(7)
Right
of redress:
Taken pursuant to prosecution 20/A. §
PCO-presidential decision to the extent does not fit the prosecution-regulated
decisions, that is not a decision taken during the investigation, it is not
considered as an order and judgement, therefore it is against it according to
prosecution. An individual case may not be appealed, or neither appeal against
the judgment which can not be contested. It is important to note that the
prosecution in all other cases entitle the right to appeal, if for any reason (or
jurisdictional competence of conflict, exclusion, union, , etc.) authority is
designated (unless the order was made by the Curia). The PCO-President's
decision posterior destruction of the framework can not be filed.[40]
The selection process of the accused
party is not included in the designation process and does not receive notice of
a fact, nor cannot make a statement, and the decision has not been communicated
to him. Then, almost intuitively, that there is no right of appeal. Another
point is that there isn't a superior member of the President of the PCO.[41]
The organization of the courts
administration does not necessarily have to be directly upstream on specific
matters. However, when the administration
of the judicial powers of the body has a direct impact on some criminal cases,
even the participants' rights and interests are directly affected to make a
decision and then this action against the appeal remedied can not be ignored.
The Constitutional Court has stated
in its decision that no final decision (order) does not have to provide
separate notice of appeal, but that there is no legal remedy,and it is
unconstitutional.[42]
The notification of the decision and the
right to pursue remedies in the context of the 46/2003. (X.16.) CC examined:
,,The right to review the exercise of - among others - is essential that those
affected are kept informed of the decision that is right or a legitimate
interest therein, and to know its contents. (...) The Constitutional Court held
that the knowledge is then guaranteed if it is established that the possibility
of knowledge without any doubt exists. "[43]
4., The comparison
of the Basic Constitutional Rights
Contested provisions of the constitutional
complaint refers to all cases within a reasonable time for the examination of
the requirement, and that this requirement is an international treaty. The
Basic Law of the cases within a reasonable time for the examination of the
requirements of fair and impartial judiciary requirement at the same time, a
paragraph will be displayed.[44]
More fundamental, constitutional
right is involved, therefore, of which the constitutional complaint contested
the laws of the right to due process (including the statutory judge, the right
to an impartial tribunal requirement of the defense rights and the right of
appeal) limited to matters within a reasonable time evaluation order. Even the
Basic Law also includes fundamental rights to limit the authority of the
Constitutional Court established by the principles of: ,,Other basic
fundamental rights of justice or to protect a constitutional value, the extent
necessary, proportionate to the aim pursued, the fundamental right to respect
the essence can be limited.[45]
The restriction, however, in this
case is unnecessary, because there are other ways to speed up procedures,
reducing the workload of the courts and thus to be completed within a
reasonable time. The state has both administrative and economic instruments
available to improve the efficiency of the courts. The prosecution and OAC previously
used a system to which certain interests of the cases resulted in acceleration.
In the interests of minors, in particular equitable interests has also enabled
the accelerated procedure. The recent legislative changes in result of the
introduction of a special category of cases for the state is important for the
public interest and important categories of cases normally be summary
proceedings are in progress. Therefore, the legislature has tools with which
the cases within a reasonable time considering the principle of fairness can be
achieved without prejudice. The busy courts to increase the capacity of the
less crowded capacity of courts by reducing the time, judges appointment (of
course, not specific issues, but for a period or group cases), courts
administrative reorganization of the courts to increasing resources are all
suitable that means to achieve it, that the courts capacity is proportional to
the judicial panel should match.[46]
The Constitutional Court has limited
authority in relation to the fairness of the proceedings and said that, the absolute right to a fair trial, against
which there is no other could be considered a fundamental right or
constitutional objective, because it is itself the result of reflection. "[47]
In
another decision, the Board found that,, 57, § (1) of guarantees: everyone's
right to initiate a criminal prosecution against a lawsuit or the rights and
duties established by law, an independent and impartial court of justice and
the public at a hearing, the "the right to court " include many
specific conditions, are not absolute in the sense, such that the presumption
of innocence, but the general rule according to which discretion must instill
absolute limitations. There is no
necessity for a trial because of the "fair" nature of proportion, but
could be limited; ... "[48]
166/2011. (XII.20.) CC, the
Constitutional Court stated that, the
direct economic and constitutional guarantees for convenience to simplify the
procedure or the timeliness requirement is neither dispensed nor respect of
justice. "[49]
5.,The constitutional complaint
attacked by international treaty conflicts:
The above detailed basic
constitutional rights established prejudice basis, we can conclude that the
defendant's case is of the Convention 6 (1) and 13 Articles rights are
violated.
1., The Convention prejudice to Article 6. (1):
Section 6 (1) of Article: Everyone
has the right to have his case by law be independent and impartial established
by tribunal fairly, and have public hearing within a reasonable time, and a
decision on the merits of the criminal charge against him concerned.[50]
1., The lack of court establishment
by law:
The European Court of Human Rights,
the DMD Group, as v. Slovakia case showed that, of the judicial system works in
such countries should not be tied to the judicial parts of the discretionary
decisions of which (the courts concerning the organization of) legislation was
adopted, although the courts have a margin of legislative provisions relating
to the interpretation (...).The judicial independence and the rule of law in
terms of legal certainty role of paramount importance requires, that the rules
should be very clear, in a particular case (the judge, and the designation of
the court) shall apply, and that the guarantees are clear (the decision) is
objective, transparent, and that the appearance of arbitrariness is not
incurring the affairs of sign-off. "[51]
The discretionary power of the PCO
president, however, by far exceed the admissible level of the Court, and they
are not valid for warranty conditions (objectivity, transparency, arbitrary
exclusion of appearances), which is required by the Court to comply with the
Convention, transcribe the case as provided in 6 (1).
The president of the PCO during the
visit of the Venice Commission on the 20th-21st of February 2012, has promised
to the Venice Commission, that will establish objective criteria in subject of
a decision based on the selection subject of another court. This clearly means
that in the case of BKV they generally charge other than the court appointing
such an objective criteria according to Chairman of the PCO that it did not
exist, and the creation of that PCO president spoke as only a plan.[52]
The Venice Commission also said,, it
is regrettable that in the absence of such objective criteria this transcribed
has happened."[53]
It pointed out that together with
Article 6 of the Conventi (...), in some cases the judge or designated judicial
selection is not done on an ad hoc basis or ad personam (...). "[54]
The Venice Commission was concerned
that the OAC. ,, authorizes the President to PCO, that "the affairs of the
examination within a reasonable time" is rather vague, to select a
different court case. (...) ...taking into account the fact that the importance
of having the statutory condition for the fairness of the proceedings, the
state must resort to means of less limitation of benefits, for example, it must
ensure that a sufficient number of judges and court personnel exists. Arbitrary
designation of another court is in no way an acceptable solution. "[55]
In
summary, the Venice Commission stated:,, In general, the cases transcribed
avoided even if is on a completely objective basis. "[56]
It is obvious that in the case of BKV, the designation of the
court decisions are therefore not compatible with the principles upon which the
system requirements of the Venice Commission would expect from a legitimate
judicial system. In the case of presidential decisions of PCO it is entirely
lacking objectivity and pre-determination.
2., Prejudice to the requirement of
impartiality:
The requirement of impartiality in
relation to a number of cases, the Court described the so-called 'objective'
nature of testing. The Hautschildt v Denmark, summarized in the essence of the
test: ,, Under the objective test, it must be determined that the judge's
personal conduct regardless of whether there are any verifiable facts to doubt
as of impartiality. In this context, the appearances may also be relevant. In
such situations, since the trust is at stake, which the courts in of democratic
society, the public, and particularly - in criminal cases - give rise to the
accused. "[57]
In this case - especially in terms of
appearances -not be excluded from the lack of impartiality of reasonable doubt
to the decision taken by the President of PCO.
This thought is supported by the
following:
On March 31 2010 the Bács-Kiskun
County Court (the predecessor of Kecskemét Tribunal) delivered its highly
serious judgment in the first instance of imprisonment for János Zuschlag for
eight and a half years. The representative of the Hungarian National Socialist
Party committed fraud in a criminal organization. The court imposing the
sentence not counted as mitigating circumstance, that fifty million forints out
of caused damage Zuschlag has repaid, claiming that the money has unclear
origin. Legal experts sounded by the press main views were that the sentence is
excessive, since the domestic judicial practice of more than eight years in
prison usually imposed for homicide cases, and a lenient verdict would provide
a deterrent, in addition that property damage in a large extent has been
compensated.[58]
This supposition is confirmed that the
accused's appeal in the second instance in the Court of Appeal in Szeged resulted
in acting considerably - two and a half years less – and has mitigated the
penalty of six years imprisonment of János Zuschlag.
The
appellate decision stated that unreasonably stringent mitigating circumstances
and more consistent Hungarian judicial practice, despite being ignored – has first-instance
of judgment unnecessarily stressed towards the MSZP and is obviously focused on
higher status persons accused of political relations.
It can be concluded, that a case like
BKV-laden political context had already proven to be disproportionately severe in
the sentencing at Kecskemét Tribunal Appointment of a person who is related to
the spouse requesting a party of a competing political party, Fidesz prominent
personality, and momentum is considered, which is referred to as defendants,
and society as a whole are reasonable doubts about the impartiality of judicial
proceedings.
3., The requirements of the principle
of equality of prejudice:
The present case is clearly stated
that the protection of the accused were at a disadvantage compared to the fact
that the case was transferred to Kecskemét. While the prosecutor's organization
apparently solved the logistical problems arising from the transfer of the
case, until the applicant and the defense appearing at the hearing dates costs
a significant additional time and money. Certain procedural rights in the
exercise is more difficult, such as access to documents that requires several
hours of travel.
Given that with the transfer the
defense side will be worse off, concluding that the applicant's case
transferred to Kecskemét, and a breach of the requirement of the conventional
equality of arms as well.
2., The Convention
prejudice to Article 13:
The 13th Article of the Convention states
that pursuant to anyone whose rights and freedoms as set out in the Convention
are violated shall have to comply with the domestic authority to seek an
effective remedy in cases where such rights by persons acting in an official
capacity has been breached.[59]
Against the decision of PCO's
president of designated court the law did not provide an effective remedy.
The Venice Commission is also
concerned that the designation of the court is not appealable.[60]
The lack of a legal remedy for the problems
the legislature are also perceived. Therefore, the National Constitutional
Affairs, Justice and Procedural Committee on 11th of June 2012 amendment to the
Commission, which aims, inter alia, the president of PCO other court designated
decision remedies against was created.[61]
The proposal was presented by the
Ministry of Justice who had agreed, so in 2012, June 28 it brought several
changes to the proposed uniform legislation in question. This provided to the
parties the possibility of an appeal against a decision to the Curia.[62]
The legislative amendment, however,
does not affect the already transferred matters, does not settle the position
of those who are the cause (such as the accused persons in this case) without
having been transferred to the decision that could have access to an effective
remedy.
Despite the fact that one of the
accused in the case, Miklós Hagyó turned to the Constitutional Court within the
framework of a constitutional complaint, requesting the annullment of the
transfer underlying legislation and the destruction of the individual case, be
declared inapplicable. Actually the constitutional complaint did not constitute
an effective remedy, such as the President of the PCO-way binding provisions
with statutory authority stated. The Basic Law of Hungary on 2012 June 18 (that
is, after the submission of a constitutional complaint) adopted by first
amendment namely records, that the
transitional provisions of The Basic Laws of Hungary -which include the
right of court- appointment of PCO's president- is now part of the Basic Law. However, with the steady practice of the
Constitutional Court, the Board did not consider the constitutional / statutory
default provisions related to each other.
The relevant decision of the
Constitutional Court came to the conclusion that if the Constitution itself
builds in the constitutional power of a set of rules, then the constitutional
rule of law and democracy, fundamental rights, the impairment of protection
levels, reductions or guarantees are brought down by the Constitutional Court and
may not make the Constitution’s provisions destructed by the law, but it may
indicate, in fact - especially in extreme cases - to indicate an obligation of
this fact that is the constituent power as well. "[63]
Stated
above, no doubt, that the case concerning an appeal is not amenable to moving
the Kecskemét Tribunal, defendants right to an effective remedy was violated
according Article 13.
The fate of
the constitutional complaint
The Constitutional Court on 2012, 26th
of June of all aspects are well founded, The Basic Law and the Convention’s
violation of fundamental rights without a doubt is surprising and to find the constitutional
complaint that was rejected on the grounds that the complaint contained in the
CCL does not meet the formal requirements. The petitioner has not clearly
identified the constitutional jurisdiction of the court, when the complaint was
based on CCL 26th § (1), and the CCL. 26th § (2).[64]
In the days after, the decision is
notified by a constitutional article, in which the authors point out, that
since the short period of the adoption of the Basic Law, examination of the
merits of the case to dispense with significant rejections are common, which
doesn't reflect the smooth functioning of the new system. Accordingly, the
practice shows that the body is strong, sometimes clinging tenaciously on
formal requirements to such an extent that the decision-making responsibility
sometimes gives the appearance of escape, in the most extreme example of the
authors mentioned above, rejecting the constitutional court order. In this
specific case it is really a serious legal issue, that the decision of the
President of PCO transfer of the case is a judicial decision or not, and if so,
then referred to one of the powers to act on the board. If not, it is indicated
in the petition, the authority of another. Most likely, therefore, the
petitioner referred to both powers, a fact which is neither the CC law or rules
of procedure of the board which is not prohibited.
After
all, in addition to CC, the petitioner is not required to fill a gap, but
finally rejecting the motion, which again could not be submitted because the
sixty-day period has slipped out of the complainants. As it is difficult to
classify, since the Board was afraid to deal with in recent months, this is one
of the most debated questions of constitutional law.[65]
This decision is also strange,
because the rules for the transfer of cases at the first form the
Constitutional Court are annulled, that only then the political will and the
Basic Law the latter adapts to the other.[66]
The PCO-President had the right to
transfer, enabling legislation for a year since the first version was adopted
by the National Assembly, and caused no great surprise that the right to
legitimate judge is incompatible and by the Constitutional Court annulled in
December. The destroyed legislation, including transitional provisions, then ecame
part of the basic law by the National Assembly, thus quickly reviving the
annulled law rules.[67]
This is not the only rejected
decision in the past few months, in which the Board handles the maximum
severity inclusion criteria: It has become evident, for example, that the same
(just the offensive act) motions for a fundamental constitutional issues should
"exist unfettered discretion on that basis, although what may be rejected,
for example, because of perceived problems of law, dogmatic or economic issues.[68]
The advocates involved in the
BKV-case on 31st of May, 2012 have asked to suspend the proceedings of the Tribunal
of Kecskemét until the pending consideration of the Constitutional Court, as
the subject of a complaint of Constitutional Court with powers of investigation
tribunal, of which without waiting for the first instance, the start is
unfounded. If the Constitutional Court had upheld the complaint, Kecskemét
Tribunal proceedings conducted so far have been ineffective. Kecskemét Tribunal
dismisses the application in 2012, 13th of June on the grounds that in his
opinion the defense filed a constitutional complaint and for its assessment of
the criminal conduct can not be considered an issue. That order was confirmed
by the Court of Appeal of Szeged on 25th of June 2012.
The
Constitutional Court's role ( would be ...)
The constitution courts is a
relatively young institution. Antal Ádám explains that some sort of superiority
'rights existence, namely without a written constitution, would namely have
been impossible.[69]
A certain degree of development of
the legal system has to be achieved in order to evolve constitution courts.[70]
The constitutional court must contain
a moral concept. If the term is used in this sense, the constitutional legal
system can only be attained if the right ideas can also apply. The catalog of
human rights is not merely a list of entitlements, but is also a philosophical
and moral resolution. A certain control of rights in the constitution is always
declared. The most basic task of the constitution courts constitutionalism is
to guard over ideology.[71]
Péter Paczolay – following Hans
Kelsen – a clear political body will be up to the Constitutional Court, which,
with negative legislative power as "functional, thereby increasing the
distribution of power.[72]
The Constitutional Court in the vast
majority of cases has the power of the opposition to defend against possible abuses,
of constitution courts, against weight of majority rule. "[73]
To narrow the possibilities of the
Constitutional Court is dangerous, because this body is intended against the
excessive power of the state defending the rule of law, reducing the vulnerability
of society, and the guardian of fundamental constitutional rights by retaining
an eternal value to us, which I believe are superior to the current political
aims. My teacher’s (Professor Zlinszky) words should be considered: ,,The
strength of human rights is provided by the order of God. There is no
compulsion behind it other than at the discretion of the intellect. Acceptance
or rejection, though our destruction or our existence, depends on it. Without a
base a structure can't stand. The first major storm to collapse it becomes a
great ruin. Ruins of which advertises the new bankruptcy of Babel. "[74]
I hope that now there is still time to avoid and
prevent this from occuring.
[1] János
Zlinszky: Human Rights and Christian Ethics, Iustum aequo Salutare, V., 2009. /
2, page 127-132.
[2] Tamás györfi: Legislature
Doctrine. Politics in the captivity of Law: Consequences of the constitution
courts, page 2-3
[3] Criminal
Procedure Act 554 / B §
[4] Article
17th § (9)
[5] The
prosecutor's,, selection and "damage the legitimate right to judge, in:
http://nol.hu/belfold/az_ugyesz_altali__kivalasztassal__serulhet_a_torvenyes_birohoz_valo_jog
[6] Constitutional
Court 166/2011. (XII.20) AB Decision No.
[7] Transitional
provisions of the Basic Law, 11 Article (3)
[8] Miklós Hagyó was
acquitted of the document-tampering case, in:
http://index.hu/belfold/2012/01/16/hagyo_miklost/
[9] The doors are closing!
Start of the Public Transport trial, in:
http://hvg.hu/hvgfriss/2012.18/201218_indul_a_bkvbunper_az_ajtok_zarodnak
[10]Court appointed
dangerous! In: http://tasz.hu/node/2587
[11] European proposals to
amend the Constitution, in:
http://nol.hu/kulfold/europai_javaslat_az_alkotmany_modositasara
[12],, Of the Basic Law
XXVIII. (1) shall be provided within a reasonable period of judicial decisions
is fundamental in order to enforce as long as the courts balanced case load is
realized, the National Judicial Office of the President in any case, discussion
of the general competences of other than a court, but the same scope the court
may appoint. "
[13] The provisions of the
Transitional National Assembly of the Republic of Hungary on the Constitution
of the 1949th Act XX. 19 of Law § (3) a., and 24 of § (3), Hungary Final Basic
Law provisions in part 3 having regard to the point to accept. The transitional
provisions are part of the Basic Law.
[14] (1) The PCO President
for that case the court instead of an exceptionally different, the same scope
the court may appoint if the matter or on the court during that period were
cases defined group assessed by the court extraordinary and disproportionate
workload due within a reasonable time unless otherwise provided for and the
selection does not involve a disproportionate strain on the designated court.
(2)
The appointment of the tribunal or the tribunal chairman, and the chief
prosecutor of the case within 15 days of the receipt of the request by the
Chairman of the PCO.
(3)
the selection for petition must be justified that by selecting the case or the
court to (1) during the period from matters specific group within a reasonable
time considering why it can not be assured, also, the list of ügyforgalmi,
personnel and other data, which the court extraordinary and disproportionate
burden of work is demonstrated.
[15] (1) The PCO president
of the motion from the receipt within 8 days of examining the ügyforgalmi,
personnel and other data, and by selecting the case of the particularities of
the motion is well-founded, and that a court may be designated to act. The PCO
consult the Chairman of the Selection and criminal courts for - if not the
petitioner, the attorney general - the attorney general opinion, and any data
or request an opinion from the court, the request must be complied with
forthwith.
(2)
The appointment of the Chairman of the PCO (1) according to opinions and
information within 8 days of receipt of the decision rejecting the motion, if
it is unfounded, or other court appointment if the motion is well founded.
(3)
The PCO President shall notify the petitioner of the decision, and the other
court is designated, the designated court and, if the selection criminal matter
and the General Prosecutor.
[16] The designation in the
instant case under this chapter, there is no new assignment.
[17] The president of the
National Judicial Office of the competent court, other than, the same scope
tribunal appointed to hear the case if the court is an extraordinary workload
of cases within a reasonable time considering other ways can not be ensured,
and the selection is not the designated court disproportionate burdens.
[18]Kecskemét Tribunal. number 1.B.73/2012 of
constitutional complaints, 9 p.
[19] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 11 p.
[20] from the same
[21] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 11 p
[22] from the same
[23] from the same
[24] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 11-12 p.
[25] from the same
[26] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 12 p..
[27] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 12 p.
[28] from the same
[29] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 13 p.
[30] Constitutional Case
6/1998. (III.11.) CC Decision
[31] Constitutional Cases
33/2011. (VII.11.) CC Decision
[32] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 13 p.
[33] Kecskemét Tribunal
number 1.B.73/2012 of constitutional complaints, 14 p.
[34] Constitutional Court
166/2011. (XII.20.) CC Decision No.
[35] Constitutional Case
6/1998. (III.11.) CC Decision No.
[36] Constitutional Court
166/2011. (XII.20.) CC Decision No.
[37] Kecskemét 1.B.73/2012
Tribunal constitutional complaints, 15 p.
[38] Kecskemét 1.B.73/2012
Tribunal constitutional complaints, 15 p.
[39] from the same
[40] from the same
[41] from the same
[42] Kecskemét 1.B.73/2012
Tribunal constitutional complaints, 17 p.
[43] Constitutional Court
46/2003. (X.16.) CC Decision No.
[44] XXVIII of the Basic
Law. Article (1)
[45] Annex I of the Basic
Law (3), second sentence
[46]Kecskemét Tribunal
no.1.B.73/2012 of constitutional complaints, 18 p.
[47] Constitutional Court
14/2004. (V.7.) CC Decision No.
[48] Constitutional Court,
6/1998. (III.11.) CC Decision No.
[49]Constitutional Court
166/2011. (XII.20.) CC Decision No.
[50] Convention for the
Protection of Human Rights and Fundamental Freedoms, Article 6(1)
[51] Case of DMD GROUP,
A.S. v. Slovakia (Application no. 19334/03)
[52]Opinion on Act CLXXII
of 2011 on the Legal Status and Remuneration of Judges And Act CLXI of 2011 on
the Organisation and Administration of Courts of Hungary Adopted by the Venice
Commission at is 90th Plenary Session, www.venice.coe.int/docs/2012/CDL-AD(2012)001-e.pdf, 93. §
[53] 93. §
[54]86. §
[55] 90-91. §§
[56] 93. §
[57] Hauschildt v. Denmark
(Application no. 10486/83, 48. §)
[58] Zuschlag received
eight years, in: www.index.hu/belfold/2010/03/31/zuschlag_nyolc_evet_kapott/
[59]Convention for the
Protection of Human Rights and Fundamental Freedoms, 13 article
[60] Opinion on Act CLXXII
of 2011 on the Legal Status and Remuneration of Judges And Act CLXI of 2011 on
the Organisation and Administration of Courts of Hungary Adopted by the Venice
Commission at is 90th Plenary Session, www.venice.coe.int/docs/2012/CDL-AD(2012)001-e.pdf, 91. §
[61] Parliament's
Constitutional Affairs, Justice and Procedural Committee, T/6393/32. No
amendment, in: www.parlament.hu/irom39/06393/06393-0032.pdf
[62] T6393/35. No. single
proposal for the organization and administration of the courts of the 2011th
CLXI year. Law and legal status and remuneration of judges of the 2011th CLXII
year. Law amending the T6393. No final vote for the bill, in:
www.parlament.hu/irom39/06393/06393-0035.pdf
[63] Constitutional Court
61/2011. (VII.13.) CC Decision No.
[64] Constitutional Court
in 3102/2012. (VII.26.) CC Order
[65] Thorn in the throat
(author: constitutional) way of writing our blog, in:
www.igyirnankmi.hvg.hu/2012/06/28/szalka-a-torkon/
[66] from the same
[67] from the same
[68] from the same
[69] Antal Ádám:
Constitutional values and constitution courts, Budapest, Osiris Publishing
House, 1998. 167 p.
[70] Dániel Karsai:The
unconstitutionality by omission, SZIF ELTE Institute of Education, Law
Department, OTDK study, 1 p.
[71] Karsai,
2-3. p.
[72] Péter Paczolay:
Constitutional politics and constitutional law, border =, interpretation of the
Constitution. Eds.Péter Paczolay. Budapest ELTE Faculty of Law, 1995. 16th p.
[73] Karsai: page 5.
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