Erika Róth. Associate Professor, Ph.D. Department of Criminal Procedure and Correctional Law, Faculty of Law, University of Miskolc, Hungary (firstname.lastname@example.org)
Keywords: administration of law, Hungarian law, European Court of Human Rights, interpretation of rules, the Suprem Court of Hungary
The first question which must be put when dealing with ensuring uniformity of judicial practice is: why is it a problem? Why is it not evident that an act of parliament or any other source of law can be understood clearly, unequivocally? Why do the rules of criminal law and criminal procedure need any uniformity at international level? The answer is different in the mentioned two fields.
In national law even the rules are not self-evident, it is a very frequent phenomenon that two or more interpretations are possible. If the legislator foresees this problem of the future practice it may give explanation of a category in the given act itself or in the other rule called executive decree. But if a question remains open from the legislator’s side the next and most usual solution is that actors of judicial practice interpret the notion of a rule.
At international level we have to speak about harmonisation rather than unification. The need to harmonise some fields of law of different countries emerged only in the last century. Criminal law - and consequently criminal procedural law as well – is the last bastion of sovereignty and states are reluctant to give it up. The most relevant organisations of harmonisation of even the rules of criminal law are the Council of Europe and its control organisations, first of all the European Court of Human Rights and different bodies of the European Union.
In my lecture I will speak about ensuring uniformity at national level and only touch questions of international harmonisation of law.
Before starting to discuss the Hungarian tools of unification I have to mention some basic questions necessary to keep in our mind when speaking about interpretation of rules.
Montesquieu in his well known publication ‘Spirit of the Laws’ described a model of the government – which seems to be ideal - where the political authority of the state is divided into legislative, executive and judicial powers. The legislative branch is responsible for making the laws; the executive branch is responsible for implementing, enforcing the law adopted by the legislative and the judicial branch is responsible for interpreting the constitution and laws. This solution may be appropriate to prevent the government’s arbitrary exercise of power. Keeping in our mind these separated tasks we examine the connection between legislation and judicial powers especially the function of the judicial bodies and their law-interpretation which is limited in a sense.
As the Constitutional Court of Hungary said ‘…in order to ensure the uniformity of law application, there can be several possible solutions within the judicial system. The legislative power and the constitutional competence of the legislative branch are not violated by the mere fact that the judicial power provides for a uniform content of the statutes to be applied. As long as it is exclusively based on the interpretation of statutes (as long as the judicial branch does notPage 42 fundamentally and directly take over the function of legislation), “judicial legislation” remains in line with the principle of the division of power.’1
As it follows from the separation of power the judicial bodies have to make their decisions using and adopting the rules formulated by the legislator. If a problem emerges during their activity they can solve it in two ways: using the tools of interpretation or sending a sign to the legislator that the law is not appropriate for the daily use. Undisputedly the first way is quicker but – as we have seen – provides limited possibility.
The other side of the connection between legislation and justice is when the legislator asks the opinion of the courts in the drafting process.2 Usually the highest court is the direct partner of the Ministry of Justice, which is responsible for the preparation of draft laws (bills) if the field of criminal law and criminal procedure. This does not mean that lower courts have no possibility to express their view concerning a draft: the Supreme Court and the National Council of Justice regularly send all drafts to the lower courts as well and expect their opinion. The other way in which judges are involved into the legislation is that especially judges of the Supreme Court regularly participate in the work of codification committees.
The second question which has to be touched at the beginning is the independence of justice. Article 50 section (3) of the Constitution of Hungary declares that judges shall be independent and responsible only to the law. This norm defends the judge against any legal or illegal influence. One guarantee of independence declared by the Constitution is that judges may not be members of political parties and may not engage in political activities. On the other hand the independence of the court means a guarantee for the defendant as well. As the Constitution says „In the Republic of Hungary everyone shall be equal before the law and, in the determination of any criminal charge against him/her or in the litigation of his/her rights and duties, everyone shall be entitled to a fair and public hearing by an independent and impartial court established by statute.” (Article 57 Section (1)) Of course not only the Hungarian Constitution but the European Convention of Human Rights prescribes that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” (Article 6 Section (1)). The independent judiciary is constitutionally protected against any external influence. Both the European Court of Human Rights and the Hungarian Constitutional Court have already emphasized the importance of judicial independence, especially the stability and neutrality of the judiciary several times.
There is a serious limit of independence and free evidence. In order to prevent the arbitrary administration of justice the Code on Criminal Procedure obligates the court to give reasoning (justification) of their decision. In such circumstances it became obvious for every participant ofPage 43 the procedure why the court made the given decision and they can confute the arguments when lodging an appeal. Reasoning is very important if in the remedy proceedings – knowing the reasons of the decision making - the court of appeal reviews the case.
We may think that the high court guidelines compulsory for the lower courts and interpretation accepted by the supreme court threat the independent decision making of the judges. To answer this question we have to have a look at different types of interpretation and their results.
The aim of the interpretation is to know what the intent of the legislator was, which usually can be achieved with the combination of different methods.
From the methodological point of view the interpretation could be3
The grammatical interpretation solely may not provide enough bases to find the intent of the legislator, it is necessary to follow the examination by using other methods.
Taking into account the result of the interpretation it could be
within the text
outside the text
contrary to the text.
Of course the judicial interpretation should remain within the text. I do not examine the methodological questions, only would like to pin down that interpretation contrary to the text of the law is prohibited and interpretation outside the text is not supported either.
If the interpretation extends the text of the norm it may occur that a decision is not only not in harmony with the law but it is also unconstitutional.
The legislator usually interprets the law made by it in the commentary and in the interpretative provisions of the law. The aim of it is to make clear the intent of the legislator and provide a unified administration of the given act at the same time when the act is formulated. If the legislator fails to give a clear explanation of the content of a rule the judicial interpretation may take place with the aim of unification of the administration of justice.
While we as scientists would like our opinion to be taken into consideration, the reality is that scientific interpretation may influence the practice only through the interpretation of the legislator or the court. Scientific opinions are rarely cited in the courtrooms, however, in the training of the judges they play a definitive role. It is a well-known phenomenon that the content of textbooks used in the university training is overruled by the higher court interpretation and guidelines...