02 April 2019
On Monday, the Hungarian Parliament finalised the laws on the country’s new administrative courts. In its current form, even after amendments, the laws do not comply with international standards and do not follow the recommendations of the Venice Commission. Serious concerns remained:
– It is possible that the judges controlling, for example, a tax authority decision worked themselves at the very same tax authority just half a year before. This possibility seriously undermines the trust in the independence of the judiciary as a whole.
– Judges with no experience may adjudicate. Current applicants learn and practice for years before becoming judges. At the new courts, there will be no such requirement for all freshly appointed judges which might undermine the quality of judgements.
– According to the Minister of Justice, in total 300 judges will be needed at the new courts, but the President of the Supreme Court (Curia) said that only 120 currently sitting judges will move to the new courts. The remaining judges, who might be as many as 180, will be selected by the Minister. This means that almost two-thirds of judges will be selected by the Minister. As a consequence, new judges might be twice as many as former judges with years or decades of experience.
– There is nothing to prevent the Government from selecting former civil servants for 100% of the new judicial positions. In such a situation, too many new judges will have to be trained, which is hardly possible because of the numbers. Quality of judgements might significantly drop.
– A good example of the flaws is that a person without any previous judicial experience can be elected for chief administrative judge (President of the Supreme Administrative Court). The Venice Commission recommended a minimum of five years’ judicial experience for Presidential candidates.
The Venice Commission, a body of European constitutional experts, severely criticised the Hungarian laws on administrative courts which will be operational from next year. As a response to the criticism, the Hungarian governing parties partially amended the law. These amendments adopted on Monday, however, do not meet a majority of the faults.
According to the analysis by the Hungarian Helsinki Committee, only less than one third of the main recommendations of the Venice Commission were addressed in the amendments.
The biggest issue with the laws is the selection of judges during the transition period in 2019. Half of the new judges will be selected during this year and the Minister of Justice will be unhindered to decide who becomes a judge. This means that persons litigating against government authorities might only appeal to judges appointed by the very same government.
The new laws put very wide powers to very few hands while checks and balances are missing. The Venice Commission also reminded that some of the same problems were already raised eight years ago during the 2011 judicial reform. The Hungarian Government, at that time, met some of these issues. The same problems are coming back now: issues addressed eight years ago by the Government are ignored now.
The Hungarian Helsinki Committee asks the Government to follow the advice of the Venice Commission and review the laws in order to guarantee the independence of courts with the same force during this year and after 1 January 2020.