According to a statement from the General Secretary of the Constitutional Court, the Court 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, former deputy mayor of Budapest, from Budapest, the court of general competence in the case, to Kecskemét. The petitioners of the complaint also questioned that only the prosecutor could express its opinion on transferring the case whereas the defendants and their lawyers could not.
The Court closed the legal representatives of petitioners out of the hearing, which is unjustified. After the President of the NJO had an opportunity to state her opinion in writing to the Court, she will now be able to articulate the case to the plenary of the Court in person in the absence of the petitioners. The legal representatives of the petitioners will have to be satisfied with reading the transcripts following the hearing. The closed hearing violates the right to fair trial because it fails to guarantee equal rights to both parties.
We are convinced, however, that closing the hearing also undermines the confidence in the fair procedure of the Court, while the reasoning provided also fails to substantiate the closed hearing.
The Act on the Constitutional Court states that the Court must hold a public hearing if the petitioners request it and the President of the Court agrees. The President can only order a close hearing – according to the rules of the Court – if a public hearing would not foster a decision in the case. The President of the Court based his decision on this rule. The rule was seemingly 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 does not allow for 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 Court’s decision-making process, which should also concern the discussion of all 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 – excepting the public announcement of the decision – in exceptional cases when the Court decides to hold a hearing. When the petitioner calls for a public hearing, the Court may only reject the request on constitutional grounds. In this case the Court 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 citizens. The subject and the content of the hearing is clearly a public affair, hence closing the hearing to the public requires justification. In this case the Court could only justify a closed hearing if the hearing concerned national security or classified information.