Csaba Kiss is working for EMLA, member of Justice and Environment
Our readers may remember that in the January 2019 edition, we sadly reported that “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 administrative matters” in Hungary.
While it is a matter of fact that on 12th December 2018, the House of Parliament adopted a bill that created a specialized court system for administrative cases, it is far less sure that it will ever be put into effect.
The new law, which follows a dangerous trend of undermining the independence of judges also seen in Poland, was supposed to be applicable from 1st January 2020. However, the Government (on 30 May 2019) announced that its entry into force will be postponed “for an indefinite time”.
What were the major points of the new law that created such a lively reaction from its critics?
The new law created 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. First of all, while ordinary court judges are appointed by the President of the Republic, in this new structure the administrative judges would have been appointed by the Minister of Justice who is a member of the Government. He would have been responsible for the call for proposals for job vacancies and the budgetary control over the new courts.
While we should not get ahead of ourselves in condemning an institution that has not even been created, let alone proven its rationale, there were reliable voices that formulated strong opinions against these ideas. Most prominently, the Venice Commission of the Council of Europe enumerated a number of critical remarks in its opinion.
They complained that the legislative process resulting in the passing of the law was not backed up by an impact study. The consultations held by the Hungarian authorities and, in particular, the period of time allowed for the debate of the draft legislation – amounting to a few days – were rather short.
It was regrettable that the Hungarian legislature did not make more provision to ensure that legislation entailing such a major and politically sensitive reform of Hungary’s judicial system was passed in the right conditions. The Venice Commission also noted that while the role of system manager attributed to the Minister of Justice is beyond question, the broad powers reserved for the Minister by the law as regards the appointment and career of judges, promotion to positions of responsibility, salary increases and so on raise questions over the lack of real review procedures.
Until the beginning of May 2019, 162 judges had already signaled their willingness to work in the new judicial body. But they will now have to wait indefinitely to pick up work at their new posts because the Government – possibly because of the critics but also probably due to European power struggles after the European Parlianent Elections – withdrew its idea.
The official explanation by the spokesperson of the Government at a 30 May Press Conference was that the idea [of a new court] was “in the center of a European and international debate”. The Government never admitted that the reason behind the withdrawal (officially called a postponement for indefinite time) is that the allegations were true. On the contrary, the spokesperson called the criticism of the new law unfounded. All in all, the actual outcome of the process is that the new law will not enter into force and the new courts will not be set up. According to the Government’s statement, they will be created only after all concerns regarding their independence are settled. Should this happens, we will report about the development of the issue.