…… or else why is it urgent for the state attorney’s office?
Before the following thoughts I have to tell that in this case the main title of my writings, „Subjectively on Hungary”, is particularly reasonable. Because I have known György Atyánszky for almost seven years and though we have met just about once a year lately we were still working together as friends for several years. I know that he is a man committed to politics and honest in his thinking.
According to this piece of news dealt by every media repeatedly nowadays the Attorney general proposed to the Chairman of the Parliament to waive György Atyánszky’s parliamentary immunity.
The viewpoint of the state attorney’s office sets out from two transactions of the firm, the managing director of which is the representative. (Divestiture of buying a leased car for its residual-value and the sale of a real estate.) He says that the firm did not have right to do these, respectively the transactions were detrimental for the obligees concerned in the liquidation proceedings.
On the basis of the documents and media statements at my disposal, in my opinion the State Attorney had made a mistake. And the two contracts totally suited the effective statutes, respectively they did not cause any damage to any of the obligees. Of course it is not me but the administrative court who is competent to judge the lawfulness of the contracts on the merits in case of such a request. It is important that the State Attorney’s Office wants to initiate the criminal proceedings against the representative before a competent court would have passed a decision. A decision whether there was a damage, an aggrieved party, an unlawful economical step at all. Because according to the law deciding about this is a „preliminary question”, the result of which is indispensable to judge whether the concept of crime can be in question at all. I could learn it also from my precedent that in the Hungarian law and order (?) – in contradiction to numerous countries with well-developed democracy – the examination of the so-called preliminary question is not instituted. So the state attorney’s office usually can leave the final judgement of the preliminary legal basis out of consideration., though in my opinion they would be bound to explain this. But with the exception of a member of the Parliament whose person has to enjoy extra protection from the unadvised administrative and official harassment. In the given case the institution of Parliamentary immunity can offset the insufficiency of our statutory regulation. And it can limit the obstruction of the fulfillment of the representative’s duties which later might be qualified as a mistake.
In György Atyánszky’s case it is the exclusive duty of the liquidator assigned by the court in the course of the liquidation proceedings to map the situation of the firm. And to examine the contracts concluded by the firm in the year preceding the initiation of the liquidation. The liquidator is bound to raise objections to it if in his opinion the firm concluded contracts within a year which caused damages to the obligees. In this case the one in charge of the liquidation is bound to attack the doubtful contracts at an administrative (not criminal!) court. Only this court can declare it with legal force if these contracts are unlawful, void.
It can be raised only after the decision – if the administrative court classifies these contracts unlawful – whether there is a mistake or a willful illegal will behind the unlawful contracts. Because even in this case only the latter means criminal offence. So the attested being of the unlawful business decision is a „preliminary question” of the criminal proceedings.
The basis of the state attorney’s charge is the standard or unlawful being of such business decisions which should be decided by an administrative court. And according to the rules of immunity the administrative proceedings can be conducted with the reserve of immunity. Therefore the waiving of the immunity does not have a legal basis now.
The administrative court might condemn the firm because of anomalous steps causing damages to the obligees involved in the liquidation proceedings. Then in case of probable cause the Parliament can be requested to waive the MP’s immunity to make it possible to decide whether the steps of the firm were willfully damaging or based on false interpretation of the law.
Before the decision on whether the contracts of the firm were lawful or not examining the will in a criminal procedure, in my opinion, means the unreasonable obstruction of the MP’s work. And as for the legal institution of immunity, its purpose is to preclude the possibility of such official actions in the democratic Parliaments. I would like to emphasize it once again that the administrative proceedings can be conducted beside the reserve of immunity. It is unusual and legally doubtful to me but true that on this stage the proceedings have to be initiated by not the authorities. But by the liquidator or one of the aggrieved obligees if he feels that he sustained legal injury by the behavior of the firm!
Budapest, November 9, 1999
And the continuation! …. On the 30th of November the Parliament waived György Atyánszky’s immunity. I.e. they entertained the request of the state attorney’s office. This way the state attorney’s office can continue its investigation officially from now on. According to the parliamentary explanation the House of Representatives did not ponder the proposed reasons of the state attorney’s office. I.e. they neither agreed with them nor disputed them but followed their „common usage” when they wished to make it possible – as they said, also in the MP’s interest – to ascertain the truth.
My problem is not that again that the standpoint of the Parliament was different from my conviction. Because I looked over the documents and I asserted it on their basis that they did not substantiate the standpoint of the state attorney’s office. This way the judge’s sentence to be expected in several years’ time will decide which of us was right. And as for the Parliament, they did not ponder, so they argued neither with me nor with the state attorney’s proposition.
I have the real problem with the common usage of our democratic Parliament „confessed” by also themselves. Which means that they do not understand the point of the democratic principles in their common usage. Adopting the legal system of the countries having a decennial experience of democracy is an important step of developing our own democracy. But it is worth of almost nothing if our legal usage does not follow the root of these laws.
In the present case, according to the law, the propounding state attorney must explain why to waive the representative’s immunity. Its reason is to make it possible for the immunity commission then the Parliament to decide it after the obligatory examination of these reasons whether they reserve or waive their fellow-representative’s immunity. The root of the constitutional guarantees of the law gets lost when the Parliament makes these decisions of them on the basis of so-called general principles instead of the examination on the merits of the concrete case. It can happen only this way that the state attorney’s judgement, which is false even professionally in my opinion, can easily continue to discredit György Atyánszky. Meanwhile István Csurka can slander anybody anywhere and can disregard their law-protected personality rights in public without limitation. But according to the general usage of the Parliament the common loyalty protects István Csurka’s immunity. And the voter is not a jurist but he totally cannot understand our representatives’ – not really understandable – principles of decision. Therefore the only he can see is that the investigation in György Atyánszky’s case can continue. This way the Parliament surely finds the representative’s business decisions suspicious. Meanwhile they will be better off if they fear István Csurka, i.e. the people in power, because in the relation of the two of them those can do anything to humiliate, discredit or libel them. Because they can do it protected by the law (the immunity in this case)!
I assert that it is not a good parliamentary usage. Moreover this opinion violates the principles and laws of the parliamentary democracy and the democratic guarantees. It can, because the Parliament cannot be punished for its violations of law. The consequences can always be experienced at the next elections by those who are sitting there now from the confidence of the electorate. I trust that sooner or later we will recognize the untenable being of the above-mentioned usage too. It should be noticed yet that the composition of our Parliament is rearranged in every four year so much for which the well-developed democracies would need at least 4-5 cycles!
December 1, 1999
………. I will surely continue this too!