Abstract
The Constitutional Court considers the right to a public trial to be part of the right to a fair trial. The right to an oral and public hearing is not absolute. It does not follow from the right to a public hearing that a court may only determine a party’s rights and obligations in a hearing. The principles of trial, orality and impartiality are fundamental principles of civil procedure. However, the fact that the law allows the court to hear the petition outside a hearing in certain proceedings does not constitute a breach of these principles. The study examines to what extent the provisions of the legislation of state of danger due to COVID-19 restricting the publicity of civil proceedings, particularly the holding of the trial, were compatible with the constitutional requirement of the right to a public trial. In this context, the importance of the hearing in civil proceedings is first examined, including the existing legislation. The study then analyses the human and constitutional content of the right to a public trial. Finally, the constitutionality of the legislation introduced during the state of danger due to COVID-19 is assessed in the light of the human rights and constitutional aspects presented.
Keywords: fair trial, right to a public trial, state of danger
I. Introduction
Hungary declared a state of danger on 11 March 2020 due to COVID-19.[2] The Government’s first measure affecting the judiciary in the state of danger was the imposition of an extraordinary judicial recess with effect from 15 March 2020.[3] Subsequently, the Government, following its original legislative powers under Article 53(2) of the Fundamental Law and taking into account the provisions of Act XII of 2020 on the protection against the coronavirus, adopted Government Decree 74/2020 (31.III.) on specific procedural measures during the state of danger (hereinafter: the Veir.). When it entered into force[4], Article 23(3) of the Veir provided that “in civil proceedings, the hearing shall be held, as far as possible, through an electronic communications network or other means capable of transmitting electronic images and sound. If the conditions for this are not provided instead of holding the hearing, the statements to be made at the hearing shall be obtained by the court in writing or by the use of an electronic means of identification and, where necessary, recorded in the minutes”.[5] In addition to that provision, Article 23(2) of the Veir precluded the holding of a hearing at the case initiation stage. Section 29(1) of the Veir provided for the appeal stage of the proceedings that “[i]n appeal and review proceedings, the parties may not request a hearing”.[6]
[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation.
[2] According to Article 1 of Government Decree 40/2020 (11.III.) “[t]he Government shall declare a state of danger for the entire territory of Hungary in order to avert the consequences of a human epidemic causing mass disease and endangering the safety of life and property, and to protect the health and life of Hungarian citizens.”
[3] According to Article 1 of Government Decree 45/2020 (14.III.) on measures to be taken during a state of danger ordered in order to prevent a human epidemic causing mass disease that threatens the safety of life and property, and to avert the consequences thereof, and to protect the health and life of Hungarian citizens (II.), an extraordinary recess of judgement is ordered upon the proposal of the President of the Kuria, the President of the National Office for the Judiciary and the Attorney General.
[4] 31 March 2020 at 15.00
[5] This provision was in force until 1 June 2020.
[6] In the case of trials already scheduled, Section 29(2) of the Veir provided that the court may decide to hold an out-of-court hearing. The court will notify the parties of this decision in due course. The parties could, however, request the court to act in accordance with Article 21(3) of the Veir.