Anna NÉMETH: Right to apply to the courts
Have you ever filed a lawsuit in court, or do you know someone who has? For us, citizens, it can be part of our everyday lives to be involved in such procedures. However, one might not fully grasp the true importance of having the right to access the courts and the underlying constitutional ideas and considerations. This particular right encompasses various aspects. I invite you to be part of the journey to explore the significance of the right to apply to the courts in legal systems and touch upon related issues through international and Hungarian national sources.
First, it needs to be acknowledged that the right to apply to the courts is an integral part of the right to a fair trial.[1] Article 6(1) of the European Convention on Human Rights explicitly states the right to a fair trial, affirming 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.”[2] The right to apply to the courts is not explicitly mentioned in the Convention; and while in retrospect, it might seems obvious that it lies between the lines, it was the European Court of Human Rights that provided clear guidance and solidified the understanding that these two rights are indeed intertwined.[3] The European Court of Human Rights held in Golder v. the United Kingdom (21 February 1975) that “in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.”[4] With that said, the Court ruled that Article 6 includes the right to apply to the courts. On the other hand, the Court also noted in this case that the right to access a court is not absolute and can be limited. This principle was further elaborated in the case of Airey v. Ireland (9 October 1979)[5], where the court established that it is not enough to have access to the courts, but it must also be effective. Thus, the right to apply to the courts cannot fulfil its purpose if it remains merely theoretical and citizens do not have a genuine opportunity to access a court. When examining the true effectiveness of this right, numerous aspects come to mind, such as the availability of a legal aid system for parties facing financial difficulties, the provision of legal representation, and the presence of impartial judges.
But whose responsibility is it to build this framework? It may look easy to answer this at first, but in reality, it can get complicated. We will return to this topic later, but for now, let us take a look at how the right to apply to the courts appears in the Hungarian legal system.
Just like in the European Convention on Human Rights, the right is not mentioned literally in Hungarian Fundamental Law. The right to apply to the courts derives from Article XXVIII paragraph (1) of the Fundamental Law. The paragraph states that “Everyone shall have the right to have any indictment brought against him or her, or his or her rights and obligations in any court action, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act.” It is hard not to notice that the text of the Fundamental Law very much resembles the text of the European Convention on Human Rights.
As mentioned earlier, in order to effectively exercise the right to apply to the courts, one must take other factors into consideration: This right relies on a comprehensive framework, comprising elements of constitutional significance. One might ask whose task it is to make sure this framework is intact and everything works in favor of effectiveness. Undoubtedly, the answer to this question lies with the State: the right of the citizens is often an obligation of the state. And obligations often require proactive action. The right to apply to the courts places an obligation on the state to — among others — provide a judicial channel for the resolution of disputes.[6] This was stated in the Decision 59/1993 (XI. 29.) of the Constitutional Court.[7] This judicial channel or tribunal should be able to conduct “a fair and public hearing within a reasonable time” as it is mentioned in the Fundamental Law. Another pillar of this topic concerns, as we have seen, the features of said tribunal: it must be “independent and impartial”. Certainly, the mentioned qualities are usually not clear-cut — they can only be judged in the light of the proceedings as a whole and the circumstances of the case. What might be a reasonable time for one case, might be unacceptably long when considering another case; in the end, reasonable time and other elusive principles are all outcomes of assessment.
Regardless of how flexible and interpretation-dependent these rules might be, they serve as safeguards for the right to a fair trial and, consequently, the right to apply to the courts.
As discussed, many things need to be in order to ensure that citizens have the righ to go to court. But even if all is in order, it does not mean anybody is obliged to go to court. The right to access a court also includes the right not to go to court.[8] The Hungarian Constitutional Court recognized this in its early years[9], and they stated: “A party’s constitutional right to take his or her case to court – like other rights of freedom – includes the freedom not to exercise that right.”[10] This aspect does not require further elaboration in the current context, but it is important to acknowledge the freedom not to exercise the right to access a court.
Last, but not least, we shall talk about how the right to access a court is connected to the monopoly of the courts to exercise judicial functions. This monopoly is a crucial aspect of the separation of powers in a democratic society. It ensures that only the courts have the power to resolve legal conflicts and that their decisions carry legal weight and binding authority. It means the executive powers and legislative powers cannot interfere with judicial powers, which keeps the justice system free of politics and impartial. Yet, state courts are not the only options when seeking a forum to settle a dispute. There are alternative dispute resolution options, which coexist with the monopoly of the courts, to exercise judicial functions through the principle of party autonomy. As mentioned, the negative dimension of the right, the right not to go to court, is a part of this freedom. But not going to court does not necessarily mean one does not want the dispute at hand to be settled; it might just mean that one feels more comfortable with other options of dispute settlement and is therefore not exercising his or her right to go to court. For example, the parties to a contract have the right to submit their dispute to arbitration by contractual agreement. Or parties can choose to engage in mediation, where they try to reach mutually acceptable agreements through facilitated negotiations. There are many options, but the main concept of all is the autonomy of the parties. These procedures are less constrained, and parties have an influence on them. The question is, can the above-mentioned guarantees of a fair trial apply to these proceedings? How far can the autonomy of the parties reach? Do courts or law, in general, have a say in what kinds of decisions can be made at the end of these alternative roads? And what does the European Union think about the connection between the right to apply to the courts and alternative dispute resolution options?
In my subsequent discussion, I will delve into these points and analyze potential insights surrounding these topics.
Laws, conventions
European Convention on Human Rights, https://www.echr.coe.int/documents/d/echr/Convention_ENG Accessed 1 July 2023
Literature
Rimaszécsi János: A bírósághoz fordulás joga, mint alkotmányos alapjog érvényesülésének egyes aspektusai (Glossa Iuridica, 2018/3-4., 115-133. o.) | Szakcikk Adatbázis https://szakcikkadatbazis.hu/doc/5329437 Accessed 1 July 2023
Bodnár Eszter Gárdos-Orosz Fruzsina Kukorelli István Lápossy Attila Pozsár-Szentmiklósy Zoltán Somody Bernadette Vissy Beatrix: Alkotmányos Tanok I., HVG-ORAC Lap- és Könyvkiadó Kft., 2021, 193. o.
Court decisions
Golder v. The United Kingdom, Sz. 4451/70 (ECtHR 21 February 1975). https://hudoc.echr.coe.int/eng?i=001-57496 Accessed 1 July 2023
AIREY v. IRELAND. ((ECtHR 9 October 1979) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57420%22]} Accessed 1 July 2023
Decision 59/1993 (XI. 29.) of the Constitutional Court, 94/B/1991 http://public.mkab.hu/dev/dontesek.nsf/0/626A5A0DA50120DEC1257ADA00525F54?OpenDocument Accessed 1 July 2023
Decision 9/1992 (I. 30.) of the Constitutional Court
https://jogkodex.hu/doc/7791932 Accessed 1 July 2023
[1] Alkotmányos tanok I.
[2] European Convention on Human Rights, https://www.echr.coe.int/documents/d/echr/Convention_ENG
[3] https://rendeszet.uni-nke.hu/document/rendeszet-uni-nke-hu/MRTT10.pdf#page=122
[4] (Golder v. The United Kingdom, 1975) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57496%22]}
[5] AIREY v. IRELAND https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57420%22]}
[6] http://projektjeink.birosag.hu/sites/default/files/allomanyok/e-learning/alaptorveny_birok/at_szabadsag/lecke7_lap1.html (
[8] Rimaszécsi János
[9] The Hungarian Constitutional Court began its work on 1 January 1990. https://alkotmanybirosag.hu/tortenete/
[10] Decision 9/1992 (I. 30.) of the Constitutional Court
Anna NÉMETH – She is currently pursuing her master’s degree in law at Eötvös Loránd University, completing her courses with excellent marks. In addition, she is studying international public management BA at the University of Public Service. During her university years she won the New National Excellence Programme in 2020. She worked as an intern for KPMG Legal Tóásó Law Firm and for the Oppenheim Law Firm in Budapest. In her previous research, she has focused on the constitutional status of art and artistic freedom. Through another project she has explored the consumer protection and competition law aspects of the Digital Markets Act. In her ongoing research, she delves into the topic of mediation.
