According to the Eötvös Károly Institute, the Hungarian Helsinki Committee and the Hungarian Civil Liberties Union, the Constitutional Court’s decision to hear the President of the National Judicial Office behind closed doors undermines the transparency of decision-making by a public office, the right to freedom of information and the right to a fair trial.
According to a statement from the General Secretary of the Constitutional Court (CC), the CC will hear Tünde Handó, the President of the National Judicial Office (NJO), in a closed session to decide on the constitutional complaint filed in the Hagyó-case. The case concerns the decision by the NJO to transfer the corruption case of Miklós Hagyó and his company from Budapest, the court of general competence in the case, to Kecskemét. The petitioners of the constitutional complaint in the Hagyó-case also criticized that only the prosecutor could express its opinion on transferring the case whereas the defendants and their lawyers could not.
The CC closed out the legal representatives of the petitioners from the hearing, which is unjustified. After the President of the NJO already had an opportunity to submit her opinion in writing to the CC, she will now able to elaborate on the case to the plenary of the CC in person in the absence of the petitioners. The legal representatives of the petitioners will have to satisfy with reading the transcripts of the hearing subsequently. The closed hearing violates the right to a fair trial because it fails to guarantee equal rights to the parties.
Furthermore, the above NGOs are convinced that closing the hearing also undermines the confidence in the fair procedure of the CC, while the reasoning provided also fails to substantiate the closed hearing.
The Act on the Constitutional Court states that the CC has to hold public hearing if the petitioners request it and the President of the CC agrees. The President can only order a closed hearing – according to the rules of the CC – if a public hearing would not foster the case to a decision. The President of the CC based his decision in the present case on this rule. The rule was probably adopted from the regulation of the procedure of the German Constitutional Court, which states „that the court can neglect an oral hearing if it would not substantively foster the case.” However, this rule only allows the court to forego a public oral hearing and not to a closed one. The German Constitutional Court cannot hold a hearing behind closed doors.
The need for an open hearing shall not be based on whether the hearing will substantively foster the case. The openness merely serves the purpose of accountability towards the public: the decision-making on rights and duties should be transparent and understandable. Openness will create and sustain public trust in the independence and impartiality of the CC’s decision-making process which should also concern the discussion of all the facts. Therefore, the decision to close a hearing in a given case undermines the trust in fair constitutional adjudication.
The procedure of the Constitutional Court may be public – except the public announcement of the decision – in exceptional cases when the CC decides to hold a hearing. When the petitioner calls for a public hearing, the CC may only reject the request on constitutional grounds. In this case the CC will hear the head of the main administrative organ of the judiciary and not an individual. The hearing concerns this official’s right – which was extensively criticized by constitutional and international legal experts – to move cases from one court to another. One public entity will testify to another public entity in a case that concerns the basic rights of the citizens. The subject and the content of the hearing is clearly a public affair, hence closing the hearing to the public requires justification. The CC would only be able justify a closed hearing in this case if the hearing concerned national security or classified information.
We are prepared to turn to the Constitutional Court if the transcripts of the hearing will not be made public. The information from the hearing concerns a public affair and could not be classified. We note that the European Court of Human Rights has already decided against the CC for not revealing information that concerns the public.