Abstract
The right to a fair trial includes the right to a lawful judge. The essence of the constitutional content of the right to a lawful judge is that the constitutional assignment of a judge to a case can only be made on objective grounds by applying predetermined, general rules. In order to determine who can be considered a lawful judge in a particular case, the provisions of the procedural law in question relating to jurisdiction, competence, the rules of appeal and the requirement of a fair trial must be taken as a starting point. The Hungarian Constitutional Court, in line with the practice of other Member States’ Constitutional Courts, has extended the concept of a lawful judge to the Court of Justice of the European Union. This interpretation necessarily implies a widening of the scope of protection of the right to a lawful judge. In this context, the lawful judge includes both the judge in the court having jurisdiction and competence under Hungarian law and the judge according to the order of assignment of cases, and the Court of Justice of the European Union in its jurisdiction to give preliminary rulings. According to the practice of the Hungarian Constitutional Court, however, a constitutional complaint concerning the failure to give a preliminary ruling cannot be based on a violation of the right to a lawful judge on its own, but may only be examined in conjunction with the right to a reasoned judicial decision. Consequently, by examining these two fundamental rights together, the Hungarian Constitutional Court has created the possibility of assessing the justification for not taking a preliminary ruling from a substantive point of view, rather than from a purely formal point of view, in the context of constitutional review.
Keywords: fair trial, lawful judge, right to a reasoned judicial decision, preliminary ruling
I. Introduction
The preliminary ruling procedure is part of the institutionalised cooperation of the European courts. The TFEU[2] provides for the mandatory submission of a request for a preliminary ruling in specific cases, and this creates a mandatory dialogue between the national court applying EU law and the CJEU[3]. The Constitutional Court attaches particular importance to the constitutional dialogue within the European Union.[4]
The Constitutional Court has stressed that “both EU law and the national legal system based on the Fundamental Law are intended to achieve the objectives set out in Article E (1).[5] In this regard, the ‘creation of European unity’, integration, is an objective not only for political bodies but also for the courts and the Constitutional Court, from which ‘European unity’ follows the harmony and coherence of legal systems as a constitutional objective”.[6] Constitutional dialogue as a tool is capable of guaranteeing the sui generis character[7] of both national law and European law.
[1] The findings of the study reflect the author’s own academic opinion and should not be considered in any respect as the official position of the Constitutional Court of Hungary. 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] The Treaty on the Functioning of the European Union.
[3] Court of Justice of the European Union.
[4] Decision 22/2016. (XII. 5.) AB of the Constitutional Court, Reasoning [33]. (ECCN HU-0113)
[5] “Hungary shall take an active part in establishing a European unity in the pursuit of freedom, well-being and security for the peoples of Europe.”
[6] Decision 2/2019. (III. 5.) AB of the Constitutional Court, Reasoning [37]. (ECCN HU-0114)
[7] Decision 3241/2019. (X. 17.) AB of the Constitutional Court, Reasoning [18].