Advocate General: national legislation or judicial practice precluding judges from referring questions to the Court of Justice is incompatible with EU law
According to Advocate General Pikamäe’s Opinion in Case C-564/19 IS, delivered on 15 April 2021, the Hungarian legislation enabling the public prosecutor to bring an action before the Supreme Court (Kúria) to declare a lower criminal court’s order for reference to the Court of Justice of the European Union unlawful, and the decision of the Supreme Court establishing that unlawfulness, are incompatible with the principle of the primacy of EU law, as they undermine the power of the lower court to refer questions to Court of Justice. As such, in the opinion of the Advocate General, the decision of the Kúria and the underlying national legislation must be set aside.
The main proceedings concern a Swedish national, IS, who was arrested in Hungary in August 2015 for an alleged infringement of the law on firearms and ammunition and questioned as a suspect on the same day. During the questioning, the accused person was informed of the suspicions against him through an interpreter and was then released. IS has since left the country and the summons sent to him to appear before the court was returned marked ‘unclaimed’. The national court was required to continue the proceedings in absentia, during which the defense applied to the court seeking a request for a preliminary ruling, which the court granted.
In its request, the national court asked the Court of Justice for an interpretation of the provisions of the EU directives on the rights of accused persons in criminal proceedings dealing with the right to interpretation of a sufficient quality and of the right of accused persons to be informed of the accusations against them, due to concerns with the quality of the interpretation and the qualifications of the interpreter in the main proceedings.
Moreover, in its second and third questions, the national court asked the Court of Justice whether the direct appointment of senior judges (temporary presidents of courts) by the President of the Országos Bírósági Hivatal (National Office of Justice), who is appointed by the Hungarian parliament, and the practice of Hungarian judges receiving lower remuneration than prosecutors of the equivalent category are compatible with the principle of judicial independence enshrined in EU law.
Following the submission of the initial request for a preliminary ruling, the public prosecutor submitted an extraordinary appeal, known as ‘an appeal in the interests of the law’, against the referral to the Kúria. The Kúria – without interfering with the legal effects of the lower court’s decision – declared the referral unlawful, finding that the questions were not relevant to deciding the main case and did not concern the interpretation of EU law but instead sought a finding that the applicable Hungarian law did not comply with the principles protected by EU law. Furthermore, disciplinary proceedings were brought against the referring judge on the grounds of the Kúria’s decision; however, the decision to initiate disciplinary proceedings was later withdrawn.
In these circumstances, the national court decided to refer two additional questions to the Court of Justice, wishing to ascertain whether the declaration by the Kúria of the unlawfulness of the order of reference and the initiation of disciplinary proceedings against the referring judge were in breach of EU law.
According to the Opinion of the Advocate General, the second and third questions relating to the appointment of senior judges by the President of the OBH and the remuneration of judges are irrelevant to the outcome of the proceedings before the national court, and are therefore inadmissible. The fifth question on the initiation of disciplinary proceedings should also be declared inadmissible, given that the decision to initiate these proceedings has since been withdrawn. In this case, however, the Advocate General does not exclude the possibility that the Court of Justice could, by tenuous means, find an avenue of interpretation that would allow the admission of the fifth question, regarding it as comprising an indivisible whole with the fourth question.
Concerning the fourth question, the Advocate General is of the view that the contested decision of the Kúria and the national legislation underlying it undermine the power of the national court to refer questions to the Court of Justice for a preliminary ruling and therefore undermine the operation of the preliminary ruling mechanism. In that regard, the Advocate General recalls that that mechanism is based on a dialogue between the national court and the Court of Justice, the initiation of which depends entirely on the referring court’s assessment as to whether its request is appropriate and necessary. In that regard, the Advocate General states that the Court of Justice alone is empowered to evaluate the merits of that assessment when ascertaining whether the questions referred to it are admissible. Consequently, the Advocate General observes that, in accordance with the principle of the primacy of EU law, the referring judge is required to set aside that decision and disapply the national legislation underlying it.
On the first question, the Advocate General opines that although EU law places Member States under a precise obligation as to the result to be achieved in terms of the quality of interpretation, it does not require them to establish a register of independent interpreters who are appropriately qualified. However, suspected or accused persons must be provided the opportunity to complain that the quality of interpretation is not sufficient to enable them to have knowledge of the case against them and to exercise their rights of defence. Furthermore, the provisions of EU law on the right to information in criminal proceedings do not preclude the trial in absentia of an accused person who does not speak or understand the language of the criminal proceedings and who cannot be established to have been informed in the course of the investigation of the suspicions or accusation against him or her owing to inadequate interpretation as long as the lawyer representing the accused person has the opportunity to challenge the lawfulness of procedural steps and, if necessary, the proceedings as a whole on the grounds of an infringement of that right to information.
Although the Opinion of the Advocate General is not binding on the Court of Justice, the final judgment of the Court only rarely departs from the reasoning set forth by the Advocate General. In case the final judgment of the Court of Justice follows these arguments in finding that the Hungarian legislation in question – allowing the public prosecutor to bring an action before the Kúria to declare a lower criminal court’s order for reference to the Court of Justice unlawful – is incompatible with EU law, the case could have serious consequences for Hungary, given that the European Commission considers any restriction on the wide discretion of a national court to seek a preliminary ruling from the Court of Justice a violation of the independence of the judiciary and the right to a fair trial, which are among the possible grounds for bringing proceedings against Member States under the new EU rule of law mechanism.
The full text of the Opinion is available HERE.
The press release of the Court of Justice is available HERE.
Author: Daniel Szilágyi, junior research fellow, MTA-DE Public Service Research Group