Krisztian Villám: Constitutional dilemmas on the publicity of civil proceedings in the COVID period[1] (ABSz, 2023. Különszám, 50-58. o.)

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 (III.31.) 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]

The legislator amended the Veir. with effect from 1 June 2020, and provided that, in derogation from the above provision, "[i]f justified by epidemiological measures, the hearing may be held using an electronic communications network or other means of electronic image and sound transmission".[7] Given the epidemiological situation, it also allowed the exclusion of the publicity of civil proceedings.[8] Veir. was in force until 18 June 2020.[9]

The rules in force are set out in Article 138 of Act LVIII of 2020 on transitional rules and epidemic preparedness in connection with the end of the state of

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danger.[10] This is essentially the same as the rules under the last status in force of Veir.[11]

In parallel to the above legislative process, to ensure the uniform application of the Veir., the President of the National Office for the Judiciary issued OBH Decision No.47.SZ/2020 (IV.1) on the operation of courts and the use of court buildings in times of state of danger. According to Article 4 of this Decision, only judges and judicial staff members performing their official duties, persons performing duties in the court's interest and persons summoned to appear in court proceedings may enter court buildings. This provision was in force until 28 May 2020.

In the current regulatory context, the rules governing the stay in court buildings during an epidemic alert are laid down in Recommendation No 4/2020 (IX.15) of the President of the National Office for the Judiciary. This allows persons wishing to attend a hearing as an audience to enter the court building, but subject to prior registration.[12]

In the following, we will examine to what extent the provisions of the above legislation 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 arising from the right to a fair trial. In this context, the importance of the hearing in civil proceedings is first examined, including the existing legislation. The human and constitutional content of the right to a public trial will then be analyzed. Finally, the constitutionality of the legislation introduced during the state of danger due to COVID-19 will be assessed in the light of the human rights and constitutional aspects presented.

II. The importance of hearing in general

II.1. The concept and meaning of a hearing in civil proceedings

A hearing in civil proceedings is a public court meeting, attended by the parties and usually other persons involved. The trial is the most important stage of the proceedings, because it is typically the stage at which the rights sought by the parties are determined, the facts on which the judgment is based are established, and evidence is taken.[13] The importance of the hearing is underlined by the fact that it is here that the adversarial nature of the litigation unfolds in its entirety and that it is at this stage of the procedure that the principles of civil procedure are most widely applied.[14] At the hearing, that the principles of equality of the parties, orality, openness, immediacy and the use of the mother tongue are fully respected.[15]

Therefore, the trial's importance is that it allows the parties to assert their rights in the lawsuit to the fullest extent possible. Consequently, the trial has a special guaranteeing significance for the proceedings as a whole. Kengyel Miklós also pointed out that the social-psychological effects of the trial cannot be ignored. Here, the parties and the other participants in the proceedings come into direct contact with the hitherto impersonal authority (the court). The trial provides an opportunity for the participants to gain experience in the functioning of the judicial system, in particular in the physical environment of the judicial system (court buildings and courtrooms), the atmosphere of civil trials, and the culture of legal behaviour through the conduct of judges (and lawyers).[16] These small and often everyday experiences can have an opinion-forming effect on the judiciary's impartiality or the court's authority.[17]

A trial can be a guarantee in civil proceedings and non-contentious proceedings, even though non-contentious proceedings typically lack a trial phase.[18] In non-litigation proceedings, the court usually only