Mária Szívós

 

 

Mária Szívós as chairman of the counsel of Metropolitan Tribunal, later as member of the Constitutional Court was playing roles in BKV-case. She decided the pre-trial detention of the accused on precarious causes and their automatic prolongation. Thanks to her decisions many accused were subjected to unacceptable conditions during the detentions. As Constitutional Judge by her separate opinions she pulled back the execution of the right to a lawful judge. 

 

Mária Szívós was born in 1949. She took doctorate in law at Szeged in 1978 and was working as a lawyer in Csongrád County until the end of the communist regime. She became judge at the II and III District Court in 1993. She has been teaching in Pázmány Péter Catholic University, Faculty of Law since 1995. She went to the Metropolitan Tribunal in 2000; she’s been the deputy secretary of the Court since 2001. She became the judge of the Criminal College of Metropolitan Tribunal and then appointed Metropolitan Judge. She’s been the chairman of the counsel of the Criminal College of Metropolitan Tribunal since 2008. As the judge of the Metropolitan Tribunal, Szívós attended in several cases in fall, 2006 when she ceased the pre-trial detentions in second instance. She did the contrary in BKV-case exploded in 2010. She delivered unfavorable and questionable decisions against the accused regarding the pre-trial detentions and their prolongation. The Fidesz Parliament elected her to the members of the Constitutional Court in 2011. (source: From the hard critic to the cordon-breakdown vindicator – Who are the new Constitutional Judge nominees? – Origo, 08.06.2011)      

 

 

As the chairman of the counsel of the Metropolitan Tribunal she played operative role to order, cease or prolong pre-trial detentions. According to the interpretation of TASZ, she overruled the decisions of first instance which ordered pre-trial detentions of 2006 riots and set the accused free, which action was praised by the chairman of the sub-committee of the Parliament examining these cases. As the report interpreted she was playing significant role as chairman of counsel of second instance Tribunal to form the judicial practice of using coercive measures – especially the pre-trial detention – restricting personal freedom. Due to the civilians’ standpoint the courts generally deliver the pre-trial detention since a certain automatism leads these decisions. Strasbourg has decided 12 times against Hungary in such cases. (source: The five new nominees elected to Constitutional Court – Index, 27.06.2011)

 

Mária Szívós has been involved in decision situation in BKV-trial many times. Here she delivered opposite decisions like during the riots. She ordered more rigorous coercive measures in BKV-case against five accused. She did this in a way that in most cases she did automatically or referred to questionable reasons and non-existing data. As a consequence of Szívós’ decision many accused had to spend the pre-trial detention in unacceptable conditions. When the BKV-case exploded Mária Szívós confirmed at second instance and later prolonged the pre-trial detention of Eleonóra Szalainé Szilágyi former HR director of BKV and first accused.(source: Decision 30.Bnf.102/2010/2. of the Metropolitan Tribunal as second instance confirms the decision of the Central District Court of Pest as first instance on the order of pre-trial detention – Chairman of the Counsel, instructor judge: Dr. Mária Szívós – official website of Miklós Hagyó) (source on prolongation: Decision 30.Bnf.461/2010/2. of the Metropolitan Tribunal as second instance confirms the decision 17.Bny.241/2010/2.  of the Central District Court of Buda as first instance on the prolongation of previously ordered pre-trial detention until the 8th May 2010 – Instructor judge: Dr. Mária Szívós – official website of Miklós Hagyó) After this she tightened the prohibition displacements to home guard. (source: Decision 30.Bnf.1128/2010/2. of the Metropolitan Tribunal as second instance overrules the decision 17.Bnyf.815/2010/4. of the Central District Court of Buda as first instance and ignores the prohibition displacements and orders home guard – official website of Miklós Hagyó) 

 

Szívós ordered further coercive measures against three ex-colleague of Hagyó. She overruled the prohibition displacements to home guard in case of Miklós Regőczi, Éva Horváth and Ottó Lelovics, without real justification. (source: Winners of BKV-case: Mária Szívós Constitutional Judge – Hagyó dossier blog, 27.08.2012) Miklós Regőczi former BKV deputy-general manager was taken to custody in 3rd February 2010 simultaneously with Enrő Mesterházy advisor to the Metropolitan and Tibor Zelenák head of communication department of BKV. Mesterházy took confession on that day and raised claim against the accusations. The Metropolitan Prosecutor’s Office however initiated the pre-trial arrest of all of them on the basis of escape, hiding and making the evidencing proceeding difficult. Mesterházy and Zelenák were taken to pre-trial detention. Regőczi was taken to home guard. (source: Mesterházy and Zelenák in pre-trial detention, Regőczi in home guard – Index, 05.02.2010) However Mária Szívós put him also to pre-trial detention when he neglected to take incriminating confession against his principals on 3rd February 2010. She did this independently from the fact that there was no evidence for the danger of escape. (source: Miklós Regőczi accused of VIII rank confessed in Kecskemét Tribunal on 6th November 2012 – official website of Miklós Hagyó) The Central District Court of Buda ordered home guard – instead of pre-trial detention – against Ottó Lelovics communication associate of Hagyó, with the reason that there is no danger of escape on his side.   

 

Despite of this, Mária Szívós overruled the home guard decision and ordered the most rigorous coercive measure; (source: Decision 30.Bnf.1355/2010/2. of the Metropolitan Court as second instance overrules the decision 15.Bny.1017/2010/2. of the Central District Court of Buda – official website of Miklós Hagyó) and then she prolonged it. (source: Decision 30.Bnf.2833/2010/2. of the Metropolitan Tribunal confirms the decision 3.Bny.44717/2010/2. of the Central District Court of Pest and prolongs the pre-trial detention of O.L. until the 26th November 2010 – official website of  Miklós Hagyó) Lelovics spent 6 months in jail. After this, Szívós ordered the prolongation of his home guard. (source: Decision 30.Bnf.3311/2010/2 of the Metropolitan Tribunal as second instance in which confirms the decision 1.Bny.46723/2010/2 of the Central County Court of Pest and so prolongs the pre-trial detention of O.L. until 24th December 2010 – official website of Miklós Hagyó) She also changed the home guard against Éva Horváth former press-officer to pre-trial detention without reasoning (source: Decision 30.Bnf.1355/2010/2. of the Metropolitan Tribunal as second instance in which overrules and modify the decision 15.Bny.1017/2010/2 of the Central County Court of Buda – official website of Miklós Hagyó). However the judge admitted that there was no evidence proving at least the intention to hide, escape or terminate evidences but she believed that it may happen in the future. (source: Observations on the confession of Éva Mátray-Horváth VI rank accused on 22nd January 2013 at Kecskemét Tribunal – official website of Miklós Hagyó) Trash spilled into the center of her cell mixed into her personal stuff and with a “Clean it Jewish!” call they disgraced her. She was told that if the rabbi comes again they will be unable to protect him against “beating himself”. On top of this the doctors of the prison were trying to drug her by injecting Rivotril into her without her knowledge or consent. Due to her statement it was not rare that she had to suffer in 54 C hot in the 6sqm cell with 4 inmates and the only gap through which some fresh air could have entered was closed. She was taken to the interrogations fully cuffed like murderers – by which they caused severe and incurable injuries. When she raised claim against this treatment at the warder he replied that “shut up or I consider your behavior as hostile and I may shoot you”(source: BKV-trial: “Clean Jewish” – Népszava online, 17.01.2013) Nothing from the above humiliation would have been performed if Mária Szívós had not order the pre-trial detention without any reason.

 

It was also Mária Szívós who ordered the prolongation of Miklós Hagyó three times without critique, on the basis of a police brief which never existed (source: Decision 28.Bnf.1850/2010/2 of the Metropolitan Tribunal as second instance, Decision 30.Bnf.2755/2010/2. of the Metropolitan Tribunal as second instance, Decision 29.Bnyf.3238/2010/3. of the Metropolitan Tribunal as second instance – official website of Miklós Hagyó) (source: Éva Kádár: A Case out of the effect of the constitutional rights – jogiforum.hu)

 

The decisions of pre-trial detention usually referred to the danger of escape and hiding as due reasons. Mária Szívós automatically prolonged the pre-trial detention of Miklós Hagyó on these reasons therefore Hagyós spent 9 months in pre-trial detention on questionably due reasons. (source: Éva Kádár: A Case out of the effect of the constitutional rights – jogiforum.hu) As Hagyó’s lawyer objected there was no danger of escape at all. Hagyó knew about the investigation 6-8 months before, he knew about one and a half dozen of suspects but he neither left the country nor performed such behavior which could have led to the conclusion that he would left the country. He did interviews regularly, he was continuously indicating his presence in order to prove that he does not want to escape; he did not use the option with his diplomat passport. (Was Hagyó’s detention illegal? – Népszava online, 08.02.2012) If he had wanted to escape he could have done it until the May of 2010 as M.P. since the immunity protected him. He could have influenced the witnesses or cover evidences the same way. He even reimbursed a relatively big amount of load, which also confutes the possibility of escape. (source: Nokia-box: once upon a time – Népszabadság online, 02.06.2013) Besides, Hagyó’s lawyer informed BRFK before the arrest that his client is at the authorities’ disposal at anytime and anywhere (source: (Letter to Col. Mihány Bezsenyi, dated 11th May 2010, delivered personally .pdf – official website of Miklós Hagyó) Despite of this the court of second instance with Mária Szívós Chairman of the Counsel ordered the pre-trial detention on the basis of a data on escape. (source: Decision 28.Bnf.1850/2010/2. of the Metropolitan Court as second instance – official website of Miklós Hagyó) Even Gábor Tóth Police Chief at that time confirmed that BRFK possesses a data which proves the danger of escape in case of Hagyó. (source: Police Chief about BKV-case: anything can happen – Népszabadság online, 26.05.2010) Szívós automatically rejected three times the appeals of Hagyó’s lawyers. She also referred to that certain police report which contains a data on the intention to escape. (Winners of BKV-case: Mária Szívós Constitutional Judge – Hagyó dossier, 27.08.2012)

 

This certain data has not been found so far. The lawyer of Hagyó asked the prosecutor’s office in his petition of June, 2010 to provide the defense with the evidences being base of the pre-trial detention. The prosecutor’s office rejected the petition without reasoning. They referred to that the defense may get copies of evidences only if this does not harm the investigation. The lawyer filed a grievance against the rejection where he emphasized that the evidence refers to the danger of escape not to the action as subject to the proceeding. However, he did not get satisfied answer. (source: Népszava: Was Hagyó’s detention illegal? – Népszava.online, 08.02.2012) Defense has not acknowledged the “data” so far and they even did not find it among the given documents. Prosecutor’s Office argued in favor of the pre-trial detention with reference to a data which’s existence is questionable and unknown. (source: That certain – non-existing – data… - Hagyó dossier blog, 21.08.2012) Furthermore, several decisions declared that the data referring to the danger of escape cannot be found. The first decision which declared the non-existence of such data and so ordered the home guard of Hagyó was passed on 23rd February 2011 (source: Decision 21.Bnf.470/2011/2. of the Metropolitan Court as second instance on the home guard of Miklós Hagyó – official website of Miklós Hagyó, 23.02.2011) 

 

Later the court of second instance laid down in its decision of 10th June 2010 the non-existence of such information, police report or any other data which would have proved the reason of the prosecutor’s office. (source: Decision 31.Bnf.1448/2011/2 of the Metropolitan Court as second instance .pdf – official website of Miklós Hagyó)

The European Court of Human Rights in Strasbourg confirmed Hagyó’s claim on 23rd April 2013. The Strasbourg decision also lacks that certain data. Miklós Hagyó turned to the Strasbourg court on the basis of inhuman detention that he had to suffer. According to the petition the authorities who kept him in detention infringed several articles of the European Convention on Human Rights. (source: Miklós Hagyó vs. Hungary – File No.: 52624/10 – official website of Miklós Hagyó) They infringed the right to freedom and safety, the prohibition of inhuman treatment, the right to family life and the right to appeal. (source: Legal summary on the Hagyó vs. Hungary Case (52624/10) by Dr. András Kristóf Kádár attorney-at-law – official website of Miklós Hagyó). Namely if the defense is kept away from meeting those investigative documents without which he is unable to confute the legality of the detention then the principle of equality of arms would be infringed. Therefore Strasbourg decided in favor of Hagyó since it also lacked that certain data. Moreover, its decision confirmed that there was no danger of escape at all. (source: Strasbourg Court gave Hagyó truth – Index, 23.04.2013) It is still unknown why Mária Szívós prolonged automatically three times the pre-trial detention of Miklós Hagyó. János Hommonai, prosecutor of the BKV-case supported Szívós against the claims of the accused, the Strasbourg decision and the further effective decisions. He considered as absurd in the trial that there would any connection between the pre-trial detentions and her being nominated to the Constitutional Court. (source: Comments of Prosecutor János Hommonai and his statement to the proposal of evidencing, dated in Kecskemét Tribunal, 22nd January 2013) – official website of Miklós Hagyó)

 

 

Despite of what had happened the 2/3 Fidesz-majority Parliament - in spite of the “professional faults” confirmed by Strasbourg – elected Mária Szívós to the members of the Constitutional Court. Thanks to her nomination Szívós avoided the retirement which would have been due in months. Since then Mária Szívós the investigative judge promoted to be constitutional judge is appending dissenting opinions to every constitutional court decision on democracy or rule of law in which she articulates her dissent. The investigation was well under way when the 2/3 of the Parliament amended the criminal proceedings act in 2011 and incorporated the notion of “case of particular relevance”. The amendment made it possible that the accusing prosecutor’s office appoints the competent court in these cases or with reference to be overloaded the court passes these cases. Mária Szívós was the only one who appended dissenting opinion when the Constitutional Court declared the unconstitutionality of this amendment. (source: Orbáns’ judge earns her “masters”  - Hagyó dossier, 05.01.2013) Since the Const.Court blocked the possibility of choosing the competent court by Péter Polt Attorney General, another solution was created. The Parliament declared the temporary provisions of the Fundamental Law on 31st December 2011 by which Tünde Hagyó Chairman of OBH, wife of FIDESZ-delegate Member of the European Parliament had chance to relocate the BKV-case. (source: BKV-case: out of the effect of the right to lawful judge too? – Éva Kádár, Jogi Fórum) The Constitutional Court repealed the temporary provisions of the Fundamental Law with retroactive effect which gives the chance to relocate the case; of course with a dissenting opinion of Mária Szívós. (source: Hagyó remains in Kecskemét unconstitutionally? - Népszava online, 07.01.2013)

 

Mária Szívós was supporting the relocation of the BKV-case all along although Tünde Hagyó and the regulation of OBH were attacked many times because of the right to appointing judges. (source: BKV-case: out of the effect of the right to lawful judge too? – Éva Kádár, Jogi Fórum) The civil sphere, the law-protectors, the Venice Committee (source: Balog is about to lose his award – 168 Óra online, 06.06.2013), the European Committee and personally José Manuel Barroso were protesting against the relocation of the proceeding to Kecskemét, which was considered as antidemocratic widely. (source: The administration allows Barroso’s “threats” in two cases – Index, 15.04.2013)

The Hungarian Helsinki Committee and the Hungarian Civil Liberties Union considered the regulation which enables the Chairman of the National Judiciary Office relocate the cases from its originally appointed court as deeply solicitous and being incompatible with the obligation of fair trial.  Therefore they warned the Chairman not to confirm such requests of relocating the cases in the future. (source: It is dangerous to appoint court! – TASZ.hu, 23.02.2012) Namely the Article XXVIII of the Fundamental Law provides everyone the right to fair trial which includes the right to legal and neutral court. Thereby you can exclude the doubt: it is not a coincidence that a certain case has landed in a certain court. Therefore it is unreasonable that the Chairman of the NJO can appoint another court without chance to appeal or control since it infringes the right of the parties or accused of the proceeding to fair trial. (source: Orbáns’ court has commenced operations – 168Óra online, 24.02.2012)   

 

Mária Szívós and other members of the Constitutional Court heard Tünde Handó on 23rd April 2013, during the judging of a constitutional complaint filed in BKV-case. Miklós Hagyó insisted on to attend the hearing. (source: Hagyó-case: Handó in front of the Const.Court – Népszava online, 05.04.2013) However the defense claimed a public hearing in vain. (source: András Kádár’s reply on the public hearing of Const.Court – official website of Miklós Hagyó) The hearing was carried out without the public, with closed doors, the concerned persons and the public were totally excluded. Because of this the Eötvös Károly Institute, the Hungarian Helsinki Committee and the Hungarian Civil Liberties Union protested. (source: Law-protectors: Hangyó’s hearing at the Const.Court should be public – Népszabadság online, 22.04.2013) According to their standpoint the closed hearing infringed the transparency of the public authority decision-making procedure, the right to free access to public information and the right to fair trial. The Constitutional Court neglected the protests and objections and finally encrypted the files of the hearing for 10 years. (source: Is the transparency of the public authority decision-making damaged? – Handó’s hearing at Const.Court remains non-public – Law-protectors are objecting – Jogiforum.hu, 23.04.2013)

 

After the hearing the Const.Court did not pass decision either on previous case-relocations or on the famous BKV-case however everyone knew and confirmed of its unlawfulness. (source: Will the Const.Court take action in Handó-case? – Egyenlítő blog, 23.07.2013) After 224 days, on 2nd December 2013 the Const.Court declared that the relocation of the case infringed two obligations of the right to fair trial, the right to lawful and neutral court and judge. These relocations were unconstitutional even since the decisions did not provide possibility to appeal or legal remedy. Consequently the Const.Court terminated the act with retrospective effect (which act had been repealed before) as it was declared that the act infringed international conventions and the Hungarian Fundamental Law – of course with the separate opinion of Mária Szívós. (source: http://nepszava.hu/cikk/1004692-sulyosan-serult-a-tisztesseges-eljaras) After this, Kecskemét Tribunal declared its incompetency in its decision of 16th December 2013 and relocated the case to the Metropolitan Tribunal. (http://nepszava.hu/cikk/1005817-visszahelyeztek-a-hagyo-pert-a-fovarosba) Besides, Mária Szívós takes another separate opinion to protect the election registration (source: Orbáns’ judge earns her “masters” - Hagyó dossier, 05.01.2013) Moreover she raised objection against the Const.Court when it tried to block the obligatory retirement of the judges. Mária Szívós would have been retired by the end of 2012 if she had not been elected as Const.Judge. (source: Winners of BKV-case: Mária Szívós Const.Judge – Hagyó Dossier blog, 27.08.2012) Furthermore it has to be noted that taking the relevant law stipulations into account Mária Szívós could not have been elected as Const.Judge since she had made no academic work at all (source: Public report on the five Const.Judge candidates nominated by Fidesz-KDNP – ekint.org)

 

Courtroom testimonies on Mária Szívós

 

“The court of second instance – its chairman is now a Const.Judge elected by the government – changed this to pre-trial detention with no substantive reasoning at all. Anyway Mária Szívós admitted that there was no evidence against me that I would have wanted to escape, act in collusion or terminate evidences but as she said it may happen in the future.” “…This Const.Judge (dr. Mária Szívós) also trampled my human rights into mud in the reasoning - being not legally objective - of her decision.”

Confession of Éva Mátay-Horváth VI rank accused in the criminal proceeding 1.B.73/2012/4 of Kecskemét Tribunal

 

On the contrary of the indictment of the prosecutor’s office the investigative judge did not considered the pre-trial detention as necessary and another decision of second instance declared the unlawfulness of any of the coercive measures… But there was only one counsel in the court of second instance which found it necessary to order 30 days long pre-trial detentions. You won’t ever guess the chairman of this counsel – dr. Mária Szívós. So the prosecutor’s office’s indictment was accepted only once in one my case and it was done by dr. Mária Szívós.”

Observations of Miklós Regőczi VIII rank accused on what was said on 22th January 2013 – Kecskemét Tribunal, 25.04.2013

 

The Central County Court of Buda rejected the claim of the prosecutor’s office on pre-trial detention in its trial of 17th May 2010 and ordered home guard against me with the following reasoning:

“it is unconventional if the claim on pre-trial detention was raised months after the first interrogation….Peremptory the objections of the defense as well that the accused were well aware from the beginning of the year of the seriousness of the accusations because of which criminal proceeding was on foot however they never even attempted to escape or pull out themselves somehow from the proceeding and so they appeared every time when the authorities summoned them.”

Unfortunately the Metropolitan Tribunal’s counsel of second instance overruled the decision of the Central County Court of Buda and ordered pre-trial detention against me in its decision of 26th May 2010.”

Part of the confession of the V. rank accused