15 January 2019
After much protest from the opposition parties in the Parliament, the Government’s overwhelming majority voted in favor of a new law (Act of Parliament No. 130 of 2018 on Administrative Courts) that will set up separate courts for adjudicating in administrative matters.
On 12th December 2018, the main hall of the House of Parliament in Budapest was the scene of a loud and lively protest by opposition MPs before voting on a number of bills submitted by the Orban Government.
The loudest objections were levelled against an amendment to the Labor Code that raised the number of permissible overtime hours to 400 annually, with an option to pay the workers within 3 years’ time instead of the same year. This law, frequently called the “Slave Law” by opposition parties and independent media, sparked widespread protests on the streets of Budapest, at least temporarily uniting those dissatisfied with the current Government’s policies.
However, among the many bills adopted the same day, hides an important one that – according to commentators – may undermine the independence of the judiciary from its entry into force, on 1st January 2020.
From this point on, all administrative judicial disputes will be decided by new administrative courts, which are independent from the regular justice system. The law creates a complete, independent judicial regime next to the regular private law and labor law courts, with its own self-governing bodies, supreme administrative court (being to some extent a rival to the Curia, Hungary’s highest court) and management and administration system. While having specialized courts is usually considered a positive development and, bearing in mind that we do not yet know the impacts of the set-up and functioning of this new judicial forum, there are at least a few alarming signs that make us watch the process with caution.
Firstly, while in the ordinary court system the judges are appointed by the President of the Republic, in this new structure the administrative judges will be appointed by the Minister of Justice who is a member of the Government. Furthermore, he is also responsible for the call for proposals for job vacancies in this court, thereby influencing not only the end but the beginning of the human resource selection process. In contrast to the regular court system, it will also be possible for the Minister to appoint members of the administration as judges. Finally, the Minister will have budgetary control over the new courts and will decide over promotions and pay rises for individual judges.
As a symbolic move to underscore the independence from the regular courts, the seat of the new supreme administrative court will not be in Budapest but in Esztergom. While the latter is a beautiful small town with a very rich historic past, this decision conveys the message that this new supreme judicial forum is even physically independent from the current court system, the latter frequently referred to as one of the last independent and trustworthy institutions in Hungary.
Certainly, we should not get ahead of ourselves in condemning an institution that has not even been created, let alone proven its rationale. However, it seems that the reform is focused on increasing the control of the executive over the judiciary, essentially seeking to have government-loyal judges decide cases brought against the government. Given that neither environmental protection nor access to justice are policies that are specifically favored by the current political regime, we must carefully watch how it will affect access to justice in administrative cases and in particular, in environmental matters.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.