HCLU’s Opinion on the Bill on Nullity

The bill is justified by its introducer claiming that in several cases prosecutions were commenced “based on false or untrue evidence by the police” “against victims who were in the wrong place at the wrong time”, and the courts “attributed authentic conclusive evidence” to the notarial document issued by the police in several cases. The Bill also aims to “restore public faith in the lawfulness of jurisdiction” and to recompense those whose “human, civil and political rights and their rights to equal treatment” were violated.

We recall the autumn of 2006 when HCLU provided legal representation in several cases, and signaled our solicitudes to the public regarding the prosecutions several times. In spite of our experiences from that time we consider the Bill unacceptable and ostentatiously unconstitutional, as it is a direct contrast to the requirements of the rule of law and legal certainty, and if passed, it would severely violate the independence of jurisdiction. We also consider unacceptable that due to political reasons, it is suggested that in each case where the commission of the act was only confirmed by evidence given by the police, the police framed up the person undergoing prosecution. The bill would not restore, but on the contrary, undermine the social trust in official apparatus and jurisdiction.

The prosecutions in connection with acts committed during the demonstrations and unrest – which are consequently named crowd control in the bill – are concluded legally binding by the courts. Legal certainty does not only require that certain norms should be clear and predictable but that they should include the predictability of certain institutions such as judiciaries. The institution of legal force, the subjective and material definiteness of which, as part of the rule of law, is constitutional requirement, secures the realization of the requirement of justice and legal certainty. There is a fundamental constitutional interest in the irreversibility and character of being normative of legally binding decisions. Since the Roman law the legal principle “res iudicata pro veritate accipitur” has been known, according to which a sentence is acknowledged as truth. Res iudicata means the presumption of the truth of a statement of fact of a legally binding decision, which also means that acts can only be sentenced validly once. The institution of re-opening a case can exceptionally break this principle by weakening the principle of legal certainty and giving way to the principle of material justice. A case can be subject to re-opening if new evidence – that is evidence that did not come to hand or was not used during the proceedings – could result in a change in the facts of the case. One typical case of this is when the decision was based on false evidence. However, this has to be proved in another procedure according to the requirements of criminal law of the rule of law.

The reasoning of the Bill does not claim that all police evidence was false, and does not mention the order of magnitude of the number of cases where false reports were made, either. Such figures could not be named, as only subjective reports are available, and no prosecution was started against police due to untrue attestations.

The principle of juridical power and juridical independence put down in the Constitution is connected to judgment; the juridical power is decisively realized in judgment. Contrary to the legislating and law-enforcing power, jurisdiction is politically neutral and constant, which is a principle resultant from the separation of the powers. The bill on nullity is an indelicate intervention of the legislating power into jurisdiction: intervention into the evidence of a criminal procedure. The Hungarian jurisdiction is built on the principles of independent evidence and independent evaluation of evidence. Based on the system of independent evidence, any evidence acquired by rights can be used in the procedure; the accused protesting their innocence can even undergo a polygraph test. According to the principle of independent evaluation of evidence the judges can evaluate the evidence freely as complex or one by one, and establish the facts according to their conviction formed. One of the characteristics of the independent evidence system is that the law can neither pre- nor post-establish the value of evidence, and cannot rank them based on any aspect. The bill, on the contrary, establishes the presumption that in certain criminal procedures after the riots of 2006 the police prepared false reports and the police accused the suspects falsely. The court is authorized to accept one of the contradictory attestations of the accused and the police, and reject the other. Only the judge can perform this evaluation; the legislator cannot interfere in establishing the facts and guilt or innocence. If the evidence of the prosecution is not duly established, the judge pronounces acquittal. Independent of its judgment, the court is obliged to reason its decision. The violation of the norm of the rule of law, which is put down in the Constitution, substantiates by itself that a law is unconstitutional. There are procedure rules to redress the judgments based on untrue, false attestations; judicial misjudgments can only be appealed against within these frames.

The concept of nullity is not new for the Hungarian legal system: between 1989 and 2000 four bills on nullity were passed to provide legal compensation for those sentenced in the lawsuits of the socialist regime. With passing the bills on nullity, the Parliament declared that in those lawsuits the Hungarian jurisdiction was neither independent nor unbiased. Passing another law on nullity would declare the same, and would undermine the legitimacy of the jurisdiction and legal certainty.

If the legislator declared by law that the institutions of law enforcement consciously and systematically evaded the system of jurisdiction, it would shake citizens’ faith in police.

After the demonstrations of 2006 the lawyers of HCLU represented 10 people who were prosecuted. None of our clients were charged in the criminal prosecutions, thus in our direct experience the prosecutor did not consider the evidence solely based on reports and evidence by police witnesses sufficient and stopped the investigation.

No such case has been made public nor we are aware of any verdict where the court stated that the police made untrue attestations, no prosecution has been started due to false charges. Contrary to the lawsuits of the 1950s and the socialist regime, the cases of 2006 were researched neither by lawyers nor by historians, and no circumstances have been found that would substantiate the grave statements of the introducer. To our belief, the Bill is an example of how the third power can be in the pawn of politics.

HCLU protested against undue police brutality and unnecessary restriction on freedom of assembly several times in the autumn of 2006.

In HCLU’s opinion the bill is unconstitutional. If the bill is passed, the Parliament would violate fundamental norms of the rule of law, and would infringe legal certainty, thus we ask the Members of Parliament to vote against the bill.