Four most pressing issues on new Hungarian administrative courts

Hungary’s new administrative courts from 2020 will be under full ministerial influence. While the Ministerial model of court administration is not in itself wrong, and it works well in democracies around the World, the Hungarian system will allow the Minister to unduly influence courts. There is a great risk that the independent judicial supervision of tax, public procurement, media ownership, freedom of assembly, asylum, election, and many more disputes will be drastically undermined.

Below is a short summary of the context where the new administrative courts are arriving to. Under that, you will find the four main concerns of the laws on administrative courts:

1. The Minister of Justice will decide who becomes a judge and who doesn’t.
2. A huge number of new judges might be appointed. Even persons with zero days of judicial experience might become high court judges.
3. Judicial self-governance has no real powers. All important decisions are made by the Minister of Justice or by judicial leaders.
4. Transfer of judges is not done on an equal footing.

ANALYSIS: A more detailed and referenced legal analysis and comparison with European standards on judicial independence is available here. – DOWNLOAD PDF

Hungarian democracy declining

It has been widely reported that Hungarian democracy is backsliding in every major democracy indexes, the European Parliament voted to trigger Article 7 of the Treaty on European Union and Hungary has a Prime Minister stating that the “Supreme Court was not intellectually up to its task” after it decided an election dispute against the Prime Minister’s liking.

Some aspects of these worrying signs are particularly worrying for the judiciary. Since 2012 the Government tried to send judges into compulsory retirement, took over the Constitutional Court and – according to the judgement of the European Court of Human Rights – removed a sitting president of the Kúria (the Supreme Court) because he criticised legislative changes.

Courts are still some of the few remaining independent and powerful institutions in Hungary. Thanks to the institutional resilience of the judiciary, it is still possible to win important cases against the Government’s interests: courts are the last line of defence for the rule of law, fundamental freedoms, and basic rights.

Against this background, it was no surprise that many were worried when the Government announced its plan on administrative courts. These courts will rule on highly important cases between the citizen and the state. Administrative courts will decide on huge amounts of money in taxation, public procurement, competition cases and many more. These new courts will also have a human rights jurisdiction in freedom of assembly, asylum or environmental protection. Although it is not legislated yet, it is more than probable that the new courts will oversee the fairness of elections as well. Moreover, some Government politicians argued that freedom of information litigation also should belong to the new courts.

1. The Minister of Justice will decide who becomes a judge and who doesn’t

This is simple: the Minister will decide who becomes a judge and who doesn’t. It is unacceptable.

In the new system, an applicant gets ranked by the judicial self-governing body, the National Administrative Judicial Council, and candidates are forwarded to the Minister. But then, the Minister might decide to simply disregard the judicial body’s opinion and to choose someone else from the list.

This right allows for the Minister to control the appointment of judges both in the transitional period of 2019 and after the courts are operational one year later. As it is detailed in the second part, newcomers from the administration will be able to become High Court judges and that the Minister will have the power to specify the number of judicial positions. Combine it with the wide appointment powers and we’ll face a court system with full ministerial supervision.

2. A huge number of new judges might be appointed

The law will allow the flooding of new administrative courts with newcomers and there are no strong enough guarantees. The initial appointments to the courts will shape their practice for many years, possibly decades to come. In the new system, the position of judges is not secure in at least three aspects:

1. First, the new law allows a former civil servant with zero days of judicial experience to become a judge at the High Court. This is a threat to judicial independence and might have an influence on the quality of decision making. To address this challenge, we recommend obliging former civil servants to spend a few years as a lower court judge before being able to join the High Court. Another solution might be that at the initial years of the new courts, the overall number of High Court judges arriving from the public service should be less than the number of career judges at the High Court.

2. Second, the number of judicial positions will be specified by the Minister of Justice which is a powerful right. The Minister of Justice will have the possibility to water down the number of already sitting judges with newcomers. At the extreme, it might be possible, for example, to have two former civil servants for every experienced judge, and this way, judicial experience is voted down in every judicial formation.

3. Third, currently sitting administrative judges may opt to continue to do so in the new system. But not all affected judges are in a similarly comfortable position. It is not yet decided, for example, whether freedom of information disputes will be assigned to administrative courts or not. These cases are now settled by civil law judges, who will have to decide whether to join the administrative courts. But they cannot make this decision without knowing if their area will be transferred to the new courts or not. This uncertainty must be settled in this spring before judicial applications begin from May to July.

The Hungarian Helsinki Committee believes that the achievements of administrative judiciary reached in the last thirty years must be protected and this is only possible with experienced judges. It is in itself wrong if civil servants become judges, but the most important aspects are the numbers and proportions. In order to have freedom-friendly and professional administrative courts, the experience of judges must be highly valued and it has to be made sure that they can safely transfer to the new courts.

3. Judicial self-governance has no real powers

Judicial self-governance is the bedrock and guarantee of judicial independence. However, in the new system, the National Administrative Judicial Council will be too weak in its rights and fragile in its composition.

The Council will not have any meaningful powers and all important decisions will be made by the Minister, or by judicial leaders. As a consequence, the administrative judicial branch will be organized into a highly hierarchical structure. In this system, the Council is only an opinion-giving body. As described above, the Council’s ranking on judicial appointments might be disregarded by the Minister. The Council might also be disregarded in the appointment of judicial leaders or in the promotion of judges and generally lacks real decision-making powers.

On top of weak powers, the Council is weak in structure, too: it does neither have its own budget, nor staff, nor legal personality. It cannot even elect a president, because the President of the Administrative High Court is the president of the Council. This will result in a Council formally functioning, but without the means to carry out its task. This Council will be dependent on the mercy of judicial leaders whether to offer a room for their meetings or to finance a study trip abroad.

The transition period of 2019 is even more frustrating: the substitute for the National Administrative Judicial Council’s Personnel Council, the ad-hoc Evaluation Committee will have zero judge members elected by their peers. This is the body ranking applicants, and its four judge-members are drawn by lot, instead of elected by their peers. This body should be drastically reinforced and the possibility of a Ministerial decision overruling the ranking of this body should be abolished as described in part 1 above.

4. Transfer of judges is not done on an equal footing

Currently sitting administrative judges have the right to request a transfer to the new administrative courts. Not all judges, however, whose expertise might fall within the jurisdiction of the new courts are in a similarly comfortable position. Judges deciding freedom of information (the right to know) disputes, for example, has reasons to be worried.

Freedom of information is a right excessively used by journalists and NGOs in Hungary because the Government increasingly disregards journalistic and other inquiries. These disputes are currently settled by civil law judges, but Minister of Prime Minister’s Office stated at a press conference that “based on common sense, [freedom of information cases] should rather belong to administrative courts”. If this becomes true and these cases will fall within the jurisdiction of administrative courts, those civil judges specialised in this area will find themselves in a difficult position because they cannot request a transfer. They might apply for an administrative judicial position, but the application period will open very soon, from May to July.

Similarly, the fate of election disputes are also not yet settled. Currently, these cases are decided by the Kúria (the Supreme Court), but an earlier legislative draft suggests that the Government is considering to move it to the new administrative courts.

To avoid further uncertainty, the Government and the Parliament must make sure the final jurisdiction of administrative courts.

Not only a human rights issue

The new administrative courts will have jurisdiction on extremely important issues. Questions on fundamental rights and large sums of money will end up in the city of Esztergom, the new seat of the Administrative High Court. Decisions on assemblies, asylum, taxation, public procurement, competition and many more will affect not only the lives of many but the Hungarian economy also. Economic growth requires strong and reliable institutions. According to a study by the World Economic Forum, companies do not really trust Hungarian courts and these new rules will further weaken this trust. Not only fundamental rights, but the performance of the Hungarian economy and the security of foreign investments is at stake now.