May 16, 2013

II. Interference with the Independence of the Judiciary and the Administration of Justice

A series of legal and constitutional changes have limited the independence of the judiciary and interfered with the administration of the courts. The judiciary and administration of courts are regulated by two “cardinal laws.” [1] They entered into force with the constitution on January 1, 2012.

The laws give the president of the National Judicial Office (NJO), the body responsible for the administration of the courts and overseeing judicial appointments, the power to appoint senior judges, to temporarily transfer judges to other courts without their consent, and to transfer cases from one court to another if the first court is deemed overburdened.

Under current rules, the president of the NJO is appointed by parliament for a single term of nine years. A two-thirds majority is required in parliament. Since the current government has a two-thirds majority, it can ensure its chosen candidate is appointed.

At present the appointment can be renewed for a further nine-year term. Under changes announced in March 2013 but not yet adopted into law, the NJO president will be limited to a single term. However, if parliament fails to appoint a successor with the two-thirds majority required before the NJO president’s nine-year term expires, the vice president will step in as interim president, giving a minority party in parliament the ability to block any future appointment. The vice president is appointed by the NJO president.

The current NJO president is Tünde Hando, the wife of József Szájer, a Fidesz member of the European Parliament. The close affiliation between Tünde Hando and the ruling party represents a potential conflict of interest and puts into question the political independence of the NJO.

In July 2012 the Hungarian parliament amended the cardinal law and transitional provisions pertaining to the organization and administration of courts. The amendments, which were prompted in part by a critical report from the Council of Europe Venice Commission (see below), failed to comprehensively deal with the restricting effect of the cardinal law on the independence of the judiciary and the administration of courts.

To a limited degree, the July 2012 amendments addressed some of the problematic provisions, such as giving greater parliamentary scrutiny of the president’s role, and obliging annual reporting on judicial appointments by the NJO president. Furthermore, the amendments reduced the power of the NJO president to make appointments of non-senior judges and gave a greater role to the National Judicial Council (NJC). The NJC is now responsible for preparing lists of candidates and applicable principles that the NJO president has to apply when deviating from rank in the appointment of candidates.

However, despite the restrictions of the July amendments on the NJO president to appoint non-senior judges, under current regulations the president can still block an appointment of a candidate recommended by the NJC, thereby forcing the process to be restarted. [2] Despite the July amendments, the NJO president will continue to be appointed by parliament. The NJO president similarly remains responsible for appointing senior judges.

The NJO president still has the power to transfer cases from one court to another if the first court is overburdened. This power was struck down by the Constitutional Court in December 2012 on procedural grounds as set out by a provision in the Act on the Transitional Provisions of the Fundamental Law. [3] But under the March 2013 Fourth Amendment, it is now incorporated into the constitution itself. [4]

The system, which concentrates substantial power in the hands of one person, runs contrary to the principle of the “lawful judge.” According to the principle, which is found in many European legal systems, a case should only be decided by the judge (the “lawful judge”) who has jurisdiction to hear it based on established criteria provided for in law. The political nature of the NJO president’s appointment and the fact that the transfer of cases lies with that person rather than the presiding judge in a case creates a risk that cases will be transferred for political reasons rather than because doing so is necessary for the administration of justice. 

Since February 2012, the NJO president has transferred several politically sensitive cases from the Metropolitan Court of Budapest to first instance courts in rural areas.

One such case involves former Budapest deputy mayor Miklos Hagyó, a member of an opposition party, and 14 others charged with embezzlement from the Budapest Transportation Authority. The NJO president transferred the case in February 2012 to a countryside first instance court in the city of Kecskemét – a known Fidesz stronghold. The official reason for the transfer was that the Budapest Metropolitan Court was overburdened. HVG, a leading investigative journalism magazine, however, reported that the Kecskemét court had only 4 percent fewer cases than the Budapest court, a difference that would not warrant such a transfer. [5] The Constitutional Court is yet to rule on the transfer of the case.

As most major media outlets are located in the capital, the transferring of cases to remote courts in rural areas may limit media reporting on such cases.

In March 2012 the Council of Europe’s Venice Commission, responsible for monitoring compliance of member states with Council of Europe standards, stressed that the excessive powers assigned to the NJO president, together with the nine-year renewable mandate, run contrary to the European Convention. [6] The Venice Commission provided the Hungarian government with a detailed list of recommendations on how to amend the laws to comply with European standards.

In March and October 2012, the Venice Commission criticized Hungary for limiting the independence of the judiciary and interfering with the organization of the courts. Despite the Hungarian government’s piecemeal attempts to address concerns in the March opinion by the Venice Commission through the July amendments, the October opinion reiterated many of the initial concerns and recommendations.

The Venice Commission also reiterated its concerns with regard to the system of transferring cases: namely, that the system does not comply with the principle of the lawful judge. [7] The Venice Commission recommended that if cases are to be transferred, the decision should rest with the president of that court based on binding objective criteria established by the NJC. It also stated that transfer decisions should be subject to a right of appeal to a court. The Venice Commission further recommended that the principles on which the NJO president must base its decision during review proceedings should be explicitly set out in law. [8]

The Venice Commission raised concerns about the ability of the NJO president in practice to block an appointment of a candidate recommended by the NJC, forcing the process to be restarted. [9] For that reason, it recommended that the NJC be given the power to appoint an interim president instead. [10]

The Council of Europe Secretary General Thorbjørn Jagland in January welcomed the limited changes to the NJO president’s mandate and term proposed by the Hungarian government and subsequently adopted by parliament. [11] However, he did not address the remaining concerns of the Venice Commission and the failure of the Hungarian government to comply with Council of Europe standards.

In response to the March 2013 constitutional amendments, both Jagland and European Commission President José Manuel Barroso stated that the amendments raised concerns with respect to the principle of rule of law. [12] In April 2013 Barroso urged the Hungarian prime minister to address the concerns in an “unambiguous way” or face the possibility of infringement proceedings. [13] On April 25, 2013, the Monitoring Committee of the Parliamentary Assembly of the Council Europe recommended that the assembly open a monitoring procedure in respect of Hungary citing the erosion of democratic checks and balances as a result of the constitutional legal framework. [14] The assembly is set to vote on the monitoring procedure in June 2013.

Forced Early Retirement of Judges

The Hungarian parliament in November 2011 passed a Transitional Act (a supplement to the constitution with the purpose of explaining how the new constitution is to be implemented but which contains several provisions that are not transitional but permanent in nature) that lowers the retirement age for judges from 70 to 62 years effective January 1, 2012, forcing 274 judges to retire, including appeals court presidents. [15] In July 2012 the Constitutional Court ruled that the provision was unconstitutional. [16] In September 2012 the government submitted legislative proposals regulating the retirement age of judges but withdrew them in October in advance of a November ruling by the EU Court of Justice (CJEU).

On March 11, 2013, the parliament adopted a law permitting the reinstatement of judges who were forced to retire. [17] The law was introduced partly in response to criticism from the Council of Europe Venice Commission and the November ruling by the CJEU (see below).

Under the new law, judges who were judicial leaders, such as presidents of courts or presidents of legal branches within a court, should be reinstated to their old positions. If positions have been filled by other candidates, judges are to be reinstated in lower positions. Judges who choose not to be reinstated are granted 12 months’ salary as compensation. [18] The new law also sets out the gradual lowering of the retirement age to 65 by December 31, 2022 for judges and prosecutors. [19]

In practice, the changes will not benefit judges who cannot resume their positions as they have been filled with other people. This is the case for many judges who were forced to retire, the majority of whom held senior judgeships.

The retirement of judges enshrined in the cardinal law prompted criticism by the Council of Europe Venice Commission in both its March 2012 opinion on the administration of courts and retirement of judges and the October follow-up opinion on the cardinal acts on the judiciary. [20] In both opinions, the Venice Commission stressed the discriminatory components in the sudden drop in retirement age affecting elder judges, many of them senior, and urged Hungarian authorities to implement the July Constitutional Court decision that ruled the provision unconstitutional. The commission also urged Hungarian authorities to reinstate dismissed judges who so wish in their previous positions without having to go through a reappointment procedure. [21] In November 2012 the EU Court of Justice ruled that the forced retirement of judges amounted to unlawful age discrimination and stressed Hungary’s obligations under EU law to establish a general framework for equal treatment in employment and occupation. [22]

Efforts to Curb the Constitutional Court

The Constitutional Court has served as an important check on the executive, striking down a series of problematic laws and provisions as unconstitutional. But since 2011 the government has sought to curb its powers in a number of different ways.

First, the government sought to increase its influence over the court by changing its composition. In August 2011 the ruling majority changed the process of nominating Constitutional Court judges. Previously, the nomination process included a two-third parliamentary majority and a special parliamentary committee where each political party had one vote. This is no longer the case. Under the new regulations, the nomination is now made by a committee whose members mirror the political composition of parliament and thereby gives the ruling party a majority on it.

In September 2011 the parliament increased the number of judges sitting on the Constitutional Court from 11 to 15. There was already a vacancy, so the parliamentary committee responsible under the new rules appointed five judges to the court.

All changes made in relation to the composition of the Constitutional Court entered into force before the new constitution. At this writing, due to the retirement of several Constitutional Court judges, an 8 to 7 majority of judges have now been appointed to the bench by the ruling party since September 2011. It is notable that in a number of cases where the Constitutional Court held laws unconstitutional, including on homelessness and judicial retirement, the newly appointed judges dissented, finding such provisions in line with the constitution.

Secondly, article 37(5) of the new constitution limits the jurisdiction of the Constitutional Court by narrowing its power to review laws pertaining to the budget. Under the new constitution, the court may only review acts pertaining to the central budget, central and local taxes, duties, pension and health contributions, and customs if the state debt exceeds half the GDP which is currently the case. [23] It may only review such cases on the basis of violations of the right to life and human dignity, the right to protection of personal data, freedom of thought, conscience, and religion, and rights related to Hungarian citizenship. This narrows the ability of the court to rule on the compatibility of laws that may have an effect on basic human rights, such as the right to property or protection of privacy and home and family life.

Thirdly, the Act on the Constitutional Court, a cardinal law, limits the way in which ordinary citizens may initiate constitutional reviews by way of actio popularis – bearing similarities to so-called “class action” lawsuits.[24] Previously, citizens could initiate constitutional reviews actio popularis. This is no longer the case. As a result, NGOs and others who cannot establish that they are directly affected by an alleged violation of their constitutional rights are excluded from public interest litigation.[25] The Venice Commission recommended introducing an indirect access mechanism if actio popularis was abolished to ensure that individual questions may reach the Constitutional Court without requiring individual legal standing.[26] Such mechanisms provide an important channel for civil society organizations to challenge the constitutionality of laws, particularly in countries in which they do not have the ability to petition the court directly. In Hungary, the ombudsman may submit individual questions on behalf of individuals to the Constitutional Court, but the existing legislation that sets out the circumstances under which he can do so is vague. In April 2013 the ombudsman did request that the Constitutional Court review the provisions of the Fourth Amendment of the constitution, citing formal and procedural inadequacies.[27] The current ombudsman’s term of office is due to end in September.

Fourthly, the March 2013 constitutional amendments incorporate restrictions on the powers of the Constitutional Court, some of which were previously found in cardinal laws and transitional provisions. The Constitutional Court is no longer able to refer its own rulings prior to January 1, 2012, when the new constitution entered into force. This change contradicts case law established by the Constitutional Court after the constitution entered into force on January 1, 2012, in which the court held that it could refer to decisions adopted prior to the entry into force of the constitution if a constitutional question relates to provisions of the same or a similar nature. The change restricts the effective functioning of the court as a guardian of the rule of law. The constitutional changes also restrict the court’s power to rule on the substance of the constitution. It can now rule only on the procedural legality of constitutional amendments.

Finally, the March 2013 amendments incorporate into the constitution a series of provisions from laws that had previously been struck down by the Constitutional Court. For example, in November 2012 the Constitutional Court struck down a law criminalizing homelessness, obliging the government to repeal the law.[28] The constitution now includes a provision enabling local governments to criminalize homelessness.[29] As a result of the March 2013 changes, the court cannot challenge the addition of that provision to the constitution since it is barred from reviewing substantive changes to the constitution. It would also now be unable to rule unconstitutional any local authority decrees criminalizing homelessness.

As noted above, the March 2013 constitutional changes have been widely criticized, including by the European Commission, European Parliament, Council of Europe, and the United States and German governments. At this writing, the changes were the subject of review by the Council of Europe Venice Commission and the European Commission.

In an April 2013 interview with Hungarian daily newspaper Nepszava, Viviane Reding expressed disappointment that the Hungarian government did not follow European Commission President Barroso’s request to postpone the vote on the March 2013 constitutional amendments until the Venice Commission had an opportunity to assess them. Reding said that “[a]s President Barroso mentioned, if necessary we will not hesitate to use all means at our disposal – I repeat, all means at our disposal – if Hungary disregards the legal norms of the Union and those of the Council of Europe.” [30] The Hungarian Deputy Prime Minister and Minister of Public Administration and Justice Tibor Navracsics responded by questioning the commissioner’s integrity and neutrality. [31]

[1] Act CLXI of 2011 on the Organisation and Administration of Courts, adopted November 28, 2011; Act CLXII of 2011 on the Legal Status and Remuneration of Judges, adopted November 28, 2011; Act CLXIII of 2011 on the Prosecution Service, adopted November 28, 2011; and Act CLXIV of 2011 on the Legal Status of the Chief Public Prosecutor, Prosecutors and Other Prosecution Service Employees and on Prosecutor’s Career Path, adopted November 28, 2011.

[2] European Commission for Democracy Through Law (Venice Commission), Opinion on the Cardinal Acts on the Judiciary That Were Amended Following the Adoption of Opinion CDL-AD(2012)001, Opinion no. 683/2012, CDL-AD(2012)020, Strasbourg, 15 October, 2012, p. 10.

[3] Constitutional Court Decision 45/2012, December 28, 2012, http://public.mkab.hu/dev/dontesek.nsf/0/B139EF59DD213D0BC1257ADA00524EC0?Op (accessed April 3, 2013).

[4] Article 14 of the Fourth Amendment to Hungary’s Fundamental Law, T/9929, article 8, adopted March 11, 2013, to be included as article 27(a) of the constitution.

[5] HVG, Az Ajtok Zarodnak! Indul a BKV-bunper! , May 6, 2012, http://hvg.hu/hvgfriss/2012.18/201218_indul_a_bkvbunper_az_ajtok_zarodnak (accessed May 2, 2013).

[6] European Commission for Democracy Through Law (Venice Commission), Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary. Adopted by the Venice Commission at its 90th Plenary Session (Venice, 16-17 March, 2012), p. 13. http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2012)001-e (accessed February 26, 2013).

[7] Ibid, p. 14.

[8] Ibid, p. 13.

[9] European Commission for Democracy Through Law (Venice Commission), Opinion on the Cardinal Acts on the Judiciary That Were Amended Following the Adoption of Opinion CDL-AD(2012)001, Opinion no. 683/2012, CDL-AD(2012)020, Strasbourg, 15 October, 2012, p. 10.

[10] Ibid, p. 11.

[11] Council of Europe Secretary General Thørbjorn Jagland press conference, January 29, 2013, https://www.youtube.com/watch?v=xpluNdsvPUY (accessed January, 30, 2013).

[12] Statement from President of the European Commission and Secretary General of the Council of Europe on the vote by the Hungarian Parliament of the Fourth Amendment of the Hungarian Fundamental Law, http://europa.eu/rapid/press-release_MEMO-13-201_en.htm (accessed April 8, 2013).

[13] European Commission President Jose Manuel Barroso press statement, “The European Commission reiterates its serious concerns over the Fourth Amendment to the Constitution of Hungary, reference: IP/13/327, April 12, 2013, http://europa.eu/rapid/press-release_IP-13-327_en.htm (accessed April 15, 2013).

[14] Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), Request for the Opening of a Monitoring Procedure in Respect of Hungary, AS/Mon(2013)08, April 25, 2013, http://www.assembly.coe.int/Communication/amondoc08_2013.pdf (accessed April 26, 2013).

[15]Act CLXII of 2011 on the legal status and remuneration of judges, section 230. The total number of judges is referred to in Decision 33/2012 (VII.17) of the Constitutional Court, July 16, 2013, http://www.mkab.hu/letoltesek/abk_2012_03.pdf, (accessed April 15, 2013).

[16] Constitutional Court decision on early retirement of judges, case number IV/02096/2012, July 16, 2012. http://public.mkab.hu/dev/dontesek.nsf/0/0D0C4A0C9BF49CC4C1257ADA00524F96?OpenDocument (accessed February 26, 2013).

[17] Act on Legal Amendments Concerning the Upper Age Limit in Certain Justice-related Legal Relationships, T/9598, http://www.parlament.hu/irom39/09598/09598.pdf (accessed March 27, 2013).

[18] Act on Legal Amendments Concerning the Upper Age Limit in Certain Justice-related Legal Relationships, T/9598, http://www.parlament.hu/irom39/09598/09598.pdf, (accessed March 27, 2013).

[19] Ibid.

[20] European Commission for Democracy Through Law (Venice Commission), Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary, adopted by the Venice Commission at its 90th Plenary Sessions (Venice, 19 March 2012), pp. 27-28. http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2012)001-e (accessed April 9, 2013); European Commission for Democracy Through Law (Venice Commission), Opinion on the Cardinal Acts on the Judiciary That Were Amended Following the Adoption of Opinion CDL-AD(2012)001 on Hungary, adopted by the Venice Commission at its 92nd Plenary Session (Venice, 12-13 October 2012), pp. 15-16. http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2012)020-e (accessed April 3, 2013). .

[21] European Commission for Democracy Through Law (Venice Commission), Opinion on the Cardinal Acts on the Judiciary That Were Amended Following the Adoption of Opinion CDL-AD(2012)001 on Hungary, adopted by the Venice Commission at its 92nd Plenary Session (Venice, 12-13 October 2012), pp. 15-16. http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2012)020-e  (accessed April 3, 2013).

[22] Case c-286/12, Commission v Hungary, November 6, 2012, http://curia.europa.eu/juris/document/document.jsf?text=&docid=129324&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=793068 (accessed February 13, 2013)

[23]Eurostat Newsrelease Euroindicators, 64/2013 – 22 April 2013, p. 1, http://epp.eurostat.ec.europa.eu/cache/ITY_PUBLIC/2-22042013-AP/EN/2-22042013-AP-EN.PDF (accessed May 8, 2013).

[24] Act CLI of 2011 on the Constitutional Court, http://www.mkab.hu/download.php?d=64 (accessed April 16, 2013).

[25] Act CLI of 2011 on the Constitutional Court, section 26, http://www.mkab.hu/rules/act-on-the-cc (last accessed April 15, 2013).

[26] Venice Commission Draft Opinion on Three Legal Questions Arising in the Process of Drafting the New Constitution of Hungary, paras. 68-70, http://www.venice.coe.int/webforms/documents/?pdf=CDL(2011)016-e (accessed April 17, 2013).

[27] Ombudsman Submission to the Hungarian Constitutional Court, April 23, 2013, http://www.ajbh.hu/-/az-alapveto-jogok-biztosanak-alkotmanybirosagi-inditvanya-a-negyedik-alaptorveny-modositas-kapcsan?redirect=http%3A%2F%2Fwww.ajbh.hu%2Fkezdolap%3Bjsessionid%3D73DF025F41C285ED1EEB81F387EF1EED%3Fp_p_id%3D101_INSTANCE_LDWG9zbBd7So%26p_p_lifecycle%3D0%26p_p_state%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-7%26p_p_col_pos%3D1%26p_p_col_count%3D2 (accessed April 24, 2013), in Hungarian.

[28] Constitution Court decision, case number II/01477/2012, November 13, 2012. http://public.mkab.hu/dev/dontesek.nsf/0/1C19F4D0CFDE32FBC1257ADA00524FF1?OpenDocument (accessed February 26, 2013).

[29] Fourth Amendment to Hungary’s Fundamental Law, T/9929, article 8, adopted March 11, 2013.

[30] “Viviane Reding: egy alkotmany soha nem lehet jatekszer,” Nepszava, April 6, 2013, http://www.nepszava.hu/articles/article.php?id=635693#null (accessed April 15, 2013), in Hungarian

[31] Tibor Navracsics, “Hungary’s Questions for the Commission,” European Voice, April 11, 2013, http://www.europeanvoice.com/article/imported/hungary-s-questions-for-the-commission/76922.aspx (accessed April 15, 2013).