The Constitutional Court (henceforth: the Court) has found that certain provisions of the National Security Agencies Act violate judicial independence and the fundamental right to respect for privacy, which are protected under the Fundamental Law of Hungary. Therefore the Court has annulled those provisions. The protection of national security interests is not only a constitutional aim but also a state obligation, but the impugned regulation may give rise to abuses that are incompatible with judicial independence. In the Court’s view the exceptional significance of judicial independence for the rule of law makes it imperative that rules pertaining to the judicial branch of power are absolutely clear.
The Constitutional Court’s decision, which also affects the Curia, was given in a full public session on 13 June 2017.
Judges’ national security vetting
The President of the Curia petitioned the Constitutional Court to establish the nonconformity with the Fundamental Law of Hungary of the provisions of the National Security Agencies Act governing judges’ national security vetting and the review procedure available against such vetting, and requested the Court to annul those provisions. In the petitioner’s view, the Act removed Members of Parliament from the scope of persons subjected to national security vetting whereas it did not remove judges from that same scope which fact could result in an arbitrary selection of persons for such vetting. For in the petitioner’s view it could not be precisely established to what judges and in what cases the Act was actually applicable. According to the petition, the impugned legal provisions violated, among others, legal certainty, the principle of the separation of state powers, the right to a lawful judge, and the principle of judicial independence, all stemming from the rule of law, and hence they violated the Fundamental Law of Hungary.
The Constitutional Court found the petition to be well-founded and established that certain parts of the National Security Agencies Act were in contravention of the Fundamental Law of Hungary, hence it annulled those parts. The Court carried out a careful weighing up of the apparent or real national security interests and the Fundamental Law violation alleged by the petitioner. Under the Act, judges’ unrestricted national security vetting was to become a rule but the Constitutional Court was of the opinion that no national security interest justifying the need for such vetting could be inferred from the Fundamental Law of Hungary.
A proper regulation of the termination of judges’ service relationship constituted an important element of judicial independence. The Constitutional Court was of the opinion that the “non-maintenance” of a judge’s service relationship upon his or her national security vetting could give rise to abuses, which situation would be incompatible with the rule that judges nominated by the President of the Republic could only be removed from office for reasons and in proceedings laid down in so-called cardinal Acts of Parliament.
Certain elements of the new regulation on the review procedure available against such national security vetting were also found to be in contravention of the Fundamental Law of Hungary, due to a lack of precise specification governing their contents.
A concurring opinion by Constitutional Court judge Ágnes Czine, and a dissenting opinion by Constitutional Court judge Mária Szívós, were annexed to the decision.
Budapest, the 13th of June 2017
Press Secretariat of the Curia of Hungary