Blurring the Boundaries: New Laws on Administrative Courts Undermine Judicial Independence

If you are interested in our detailed analysis of the proposed draft Bill, click HERE.

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Judicial independence is now in jeopardy in Hungary. A new draft legislative package that limits judicial independence is a serious threat to the rule of law in Hungary and runs counter to values Hungary signed up to when it joined the European Union. Since 2010, most organizational changes, including the establishment of new institutions, have served the aim of eliminating checks on political power. Many of these changes, if taken each on their own merit, may have precedents in the constitutional orders of other European jurisdictions. The Hungarian government, however, has a track record of re-engineering of the rule of law. Given the present collapse of the legislature into an overpowering executive, significant changes to the judicial organization are snowballing into a real and serious threat to the rule of law in an EU member state.

On 6 November 2018, the Government submitted a Bill to Parliament that will set up special courts for administrative cases. If adopted in its current form, the independence of the judiciary will be significantly undermined in Hungary. As the Bill undermines the separation of powers, the boundaries between the executive and judicial power in Hungary will be blurred and it could pave the way for the government’s political interference.
The Parliament is scheduled to vote on the Bill by 13 December 2018; the new administrative courts plan to be operational on 1 January 2020. The stakes are high.
The new courts’ decisions will affect fundamental rights such as matters related to elections, violation by the police, asylum or the exercise of the right to peaceful assembly. Courts will also decide on issues with significant economic relevance: disputes over taxation and customs, media, public procurement, construction and building permits, cases of land and forest ownership, land and real estate public records or even market competition matters.
The proposed system will give excessive powers to the Minister of Justice without effective oversight of any judicial self-administration body. The Minister, who is a member of the executive power, will have exceptionally strong powers. These powers include:

• selecting and appointing new judges to the Administrative High Court and lower administrative courts;
• appointing court presidents and judges to senior positions as well as promotions;
• determining the administrative court’s budgets;
• the shaping of the new court system during the transitional period of 2019 when new judges, new court presidents and senior judges will be appointed, which will have a long-term impact on the system.

The concept for the Bill was prepared behind closed doors giving the public only three workdays to comment on the proposal. To date, the legislative process has been flawed and both domestic legislation and the Venice Commission’s standards on the legislative process were breached on several occasions.
The Hungarian Helsinki Committee calls on members of the Hungarian parliament not to adopt the Bill prior to receiving the opinion of the Venice Commission – expected in March 2019. Such a systematic restructuring of the judiciary warrants well thought-out preparation taking into consideration European legal requirements.

Please find our more detailed analysis of the proposed draft Bill here.