BKV case- are they represented fairly according to the statutory right of the court? - Kádár Éva, November 12th, 2012
BKV case- are they represented fairly according to the statutory right of the court?
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. "
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.
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, 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.
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.
The Constitutional Court of the number 166/2011. decisions 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."
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.
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.
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.
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.
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:
- Hungary Basic Law of the transitional provisions (2011th December 31) 11 Article (3) and 31 (2) last sentence - the organization of the courts and on the management of the 2011th CLXI. Act (COA.) § 62, 63 §, and 64 §
- The prosecution of 1998th XIX. Law 20 / A §.
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.
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.
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.
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. "
The reasoning of the opinion prevails even if the attorney general has a statement on the PCO President replacements.
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.
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).
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. "
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.
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.
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.
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.
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.
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. "
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.
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.
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. "
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.
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. "
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.
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.
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.
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.
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.
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.
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. "
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.
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.
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.
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. "
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; ... "
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. "
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.
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. "
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.
The Venice Commission also said,, it is regrettable that in the absence of such objective criteria this transcribed has happened."
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 (...). "
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. "
In summary, the Venice Commission stated:,, In general, the cases transcribed avoided even if is on a completely objective basis. "
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. "
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.
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.
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.
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.
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.
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. "
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).
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.
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.
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.
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.
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.
A certain degree of development of the legal system has to be achieved in order to evolve constitution courts.
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.
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.
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. "
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. "
I hope that now there is still time to avoid and prevent this from occuring.