The Government’s draft law on the judiciary does not comply with RRP super milestones

The legal changes proposed by the Hungarian government about the country’s judicial system do not meet the requirements set out in the respective super milestones by EU institutions in relation to Hungary’s Recovery and Resilience Plan. In their detailed assessment of the Government’s proposal, Amnesty International Hungary, the Eötvös Károly Institute and the Hungarian Helsinki Committee argue that even though there are milestone elements the draft law complies with, these are mostly the ones that are rather technical in nature, while milestones that demand core changes in the judicial system remain non-implemented.

The English translation of the opinion is available here.

When approving Hungary’s Recovery and Resilience Plan (RRP), EU institutions defined 27 “super milestones” that Hungary has to fully and correctly implement before it can receive any payment under the Recovery and Resilience Facility. Four of these super milestones concern the judiciary. In January, the Hungarian government put to public consultation the draft law on the judiciary that is supposed to implement these four super milestones. However, in the view of Amnesty International Hungary, the Eötvös Károly Institute and the Hungarian Helsinki Committee, in its current form, the proposal does not meet the requirements laid down by the European Commission and the Council.

Establishing super milestones that aim to restore judicial independence in the country is a sign that EU institutions have also recognised how grave the Hungarian situation has become. The respective four super milestones can be translated as creating minimum standards for a regulatory framework that can form a solid basis for reconstructing judicial independence. However, while the milestones touch upon key problems, even if they were correctly implemented, they could not fully remedy the harm that had been already inflicted on the Hungarian judiciary. This is partly because their scope is narrow, and partly because they set out rules for the future; hence they leave already contaminated structures intact. Therefore, although the milestones are adequate, they are not enough: further guarantees are needed, otherwise, the functioning of this new legal framework will be at risk.

The four super milestones can be further fragmented into elements that are quite different in nature. While some elements of the milestones prescribe modifications that are inevitable but rather technical, other elements touch upon core rule of law issues and demand fundamental changes in the judicial system.

According to the assessment of the three civil society organisations, there are milestone elements the Government’s proposal fully complies with, but these are mostly the ones that are rather technical in nature. At the same time, milestones that demand core changes in the judicial system remain non-implemented. With respect to the latter, the Hungarian government either reduced the task of implementation to a ticking-the-box exercise or to creating the illusion of compliance or, in some cases, openly refused to comply with the milestone. Concerningly, it is also clear that the Government is willing to use this reform to further progress in dismantling the judicial system in fields that are not affected by the milestones. For example, according to the proposal, as a general rule all kinds of cases will be heard by a panel of five judges in the Kúria which provides for the possibility of court packing.

• Examples of open non-compliance include that instead of fully removing the possibility for members of the Constitutional Court to become judges and then automatically get appointed to the Kúria (Hungary’s apex court) upon their request, the Government chose to cement this possibility with respect to the current members of the Constitutional Court.
• In other instances, the proposal complies with the respective super milestone only on the surface. This is the case with respect to the milestone requiring the introduction of a rule that the Kúria President cannot be re-elected: while the proposal excludes re-election, at the same time the wording makes it possible to keep the Kúria President in office with a one-third parliamentary minority after the expiry of their mandate. Also, the proposal does not provide for interim assistance to the newly set-up National Judicial Council (NJC) administration or for an interim NJC budget, thus risking that the NJC in the short term will not be able to effectively perform its tasks. Moreover, the NJC president will be elected by the NJC members (as requested by the super milestone), however, current NJC members can only elect their new president as from 1 August 2023, without the proposal giving any explanation.
• An example of the ticking-the-box exercise concerns the milestone element that the NJC should have the right to give a motivated binding opinion on the suitability of the candidates for the post of the Kúria President. Here, the proposal fulfils the milestone by practically worsening the current situation: it deprives the NJC of its effective right to hear the candidate, while at the same time severely limiting the scope of the NJC’s opinion.

In sum, Amnesty International Hungary, the Eötvös Károly Institute and the Hungarian Helsinki Committee are of the view that several parts of the draft law have to be amended to implement all the respective four super milestones fully and correctly. The three civil society organisations shared their detailed written assessment of the proposal with the Government in the framework of the public consultation launched.

The English translation of the opinion is available here.