The legislative framework and the practice of secondments, entailing the transfer of judges from one court to another, endangers the independence of Hungarian judges. Moreover, it may result in the violation of the right of parties to lawsuits to a fair hearing by an independent and impartial tribunal established by law.
Translation is available for this contentVáltás magyarra
As an administrative court leader, the President of the National Office for the Judiciary (NOJ) is vested with excessively wide discretionary powers in many areas, most importantly, as regards judicial careers. Among others, the President of the NOJ has full discretion to decide to fill a judicial post by secondment. Secondment (in Hungarian “kirendelés”) is a measure of court administration that substantially changes the legal status of the individual judge. It practically entails the transfer of the judge concerned from one court to another, as a result of which seconded judges may be ordered to hand over their cases entrusted to them and serve at a significantly higher or lower tier within the ordinary court system.
The Hungarian Helsinki Committee has reviewed the secondment decisions issued by the NOJ President in the past years. Our research showed systemic deficiencies of the legal framework and the practice, jeopardizing the independence of the judiciary in Hungary.
In our research paper, we argue that the system of secondments violates the principles of the rule of law due to the following reasons:
- Irremovability of judges is not guaranteed at a constitutional level. Decisions on the secondment of judges are fully left to the discretion of administrative leaders. This jeopardizes the independence of the judiciary and leads to a mass application of secondments.
- No objective criteria of secondments are established by law. The legislation does not provide for criteria narrowing the discretion of the NOJ President. Neither criteria for applying the legal basis of secondment, nor the designation of the receiving court, the selection of the seconded judge or the term of the secondment are established by law. This is in breach of the principle of legality and allows for abusive application of the discretionary powers.
- The discretionary powers of the NOJ President are not surrounded by procedural safeguards. This is in breach of the principle of good administration and allows for the abusive application of the rules of secondment, inter alia by creating a disguised probationary period at higher court positions.
- The legislation allows for involuntary secondments to reduce the excessive workload at receiving courts. This is against the principle of irremovability, even if not applied in practice.
- The NOJ President is not obliged by law to state the reasons for his/her decisions. This is in breach of the principle of good administration and in practice means that none of the decisions delivered by the NOJ President on secondments are reasoned.
- The decisions of the NOJ President lack sufficient democratic accountability and therefore arbitrary application of the law and abusive practices cannot be contested.
For all of the issues above, we provide a description of the concrete rule of law concern; concrete examples illustrating the systemic problem; relevant sources of recognised stakeholders warning of the breach of the rule of law; and recommendations for corrective measures to be adopted to remedy the breach of the rule of law.
The full research paper is available in English here:
The Hungarian translation of the paper can be downloaded here.