Administrative courts established in Hungary amongst the sound of sirens and whistles

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2018.12.12. 12:10

The Parliament passed a law establishing a new system of administrative courts during the scandalous parliamentary session on Wednesday. From this on, a new, separate court system will decide in cases concerning decisions of Hungarian authorities. The legislation places the new administrative court system under the firm control of the Minister of Justice, which some say might threaten judicial independence and separation of powers in a politically sensitive area, as this legal forum offers judicial review against potentially illegal administrative state actions.

In the most basic terms, the new court gets to have the final say in cases concerning taxes, construction permits, protests, strikes, and the disclosure of data of public interest. This system is not new in Hungarian judiciary - this sort of administrative courts existed until 1949 until the communist regime abolished it, as that regime made appeals to the court against the state completely redundant. Most criticisms of the current new courts concern the power of the Minister of Justice to appoint judges.

The two-level administrative court system will feature eight courts of judicature competent in first instance cases and an Administrative High Court that will be at the level of the Curia, Hungary's supreme court, taking on some of its duties in connection with the administration, including special first-instance judiciary review cases, such as the revision of decisions by the National Election Committee.

According to the law's attached motivations, the ministerial control is supposed to establish an increased political responsibility of the Minister of Justice for the operation of administrative adjudication. According to the new legislation, the Minister of Justice will have the following powers:

  • Budgetary control over the new courts 
  • Influence over tenders for judicial positions
  • The final say in the appointment of judges and of court presidents
  • Competence to decide about promotions and pay-raises of individual judges.

The new law also opens up a pathway for administrative officials to enter the ranks of the administrative judiciary, as they will have an equal chance for seats as actual judges. While the competences of judiciary bodies over the legal status of judges and judiciary administration would be sufficient guarantees to ensure the independence of the judiciary according to the ministerial motivation attached to the law, the bodies will only have advisory functions in the most important matters, and there are many dissenting voices as to how reassuring these guarantees actually are.

The opposition said that the protection of rights against state action will be less effective since the judicial branch of power that was thus far independent of the government is now under the control of the executive branch.

  • Jobbik stated that based on the practice of the last few years, the government is prone to using the loopholes built into the legal system, therefore the party is looking for these loopholes in the new legislation as well. The motivation attached to the legislation contains a passage about the increased political responsibility of the Minister for the quality of adjudication, which means an intervention into the court's operation according to Jobbik.
  • MSZP said only those can become judges under the new legislation whom the Minister wants, and for a term that is as long as the Minister wants it. This, according to MSZP, results in a strong ministerial influence in the decisions of the court, and the law politicizes courts.
  • According to DK, the aim of the new law is to take the cases that are embarrassing to the government out from the jurisdiction of independent courts, and to delegate them to a "party court". This, in their opinion, leaves the citizen vulnerable to the state, leaves law vulnerable to politics.
  • Párbeszéd said the Government can not give a proper reason for the new courts, and the law is merely about the establishment of Fidesz's own court. The party sees this as a revenge for the decisions of the Curia concerning the 2018 elections.

According to the Hungarian Helsinki Committee, the proposal violates the separation of powers and puts the independence of the judiciary at direct risk due to the unprecedented power the minister will have over staffing and payroll decisions. Such a personal dependence on ministerial decisions pose a risk that loyalty to the government might mean better career opportunities, making it harder for independent and uncorrupted judges to get ahead professionally.

Minister of Justice László Trócsányi previously said that the law is full of guarantees restricting the power of the minister. For instance, the minister will not be able to assign the cases to judges, and the minister will only get to choose judges from a list previously assembled by a body of judges. Besides that, the candidates will have to face a public hearing and the minister will be forced to attach motivation to the appointments.

Minister of Justice László Trócsányi said he is facing these criticisms calmly, as they have performed comparative legal analyses before they assembled the proposal and strived to implement all the best international practices.

(Cover:  Ellenzéki képviselők fütyülik ki Orbán Viktor miniszterelnököt az Parlamentben 2018. december 12-én.  Photo: Bődey János / Index)

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