I.        Request

In reply to a letter by the Secretary General of the Council of Europe Mr Jagland, the Minister for Foreign Affairs of Hungary, Mr Martonyi, requested the Venice Commission by a letter of 20 January 2012 to provide inter alia an opinion on legislation relating to the judiciary, namely Act CLXII of 2011 on the legal status and remuneration of judges and Act CLXI of 2011 on the organisation and administration of courts.

On 20-21 February 2012, a delegation of the Commission visited Budapest. As regards the judiciary, the delegation met with (in chronological order) the Minister for Foreign Affairs, Mr Martonyi, the President of the Constitutional Court, Mr Paczolay, the President of the Association of Judges, Mr Makai, the Minister of State for Justice, Mr Répassy, the President of the Curia, Mr Darak, the Constitutional, Judicial and Standing Orders Committee of Parliament, the President of the National Judicial Office, Ms Hando, as well as with NGOs. The opinion to be adopted takes into account the results of this visit. The Venice Commission is grateful to the Hungarian authorities for the excellent co-operation in the organisation of this visit and for the explanations provided.

The Secretary General of the Council of the Council of Europe, Mr Jagland, visited Budapest on 21 March 2012 in order to discuss the opinion of the Venice Commission with the Hungarian authorities.

II.    Issues

The opinion should be seen in the context of the Opinion on the new Constitution of Hungary, adopted by the Venice Commission at its Plenary Session in June 2011 (CDL-AD(2011)016).

The draft opinion deals with a number of issues: the powers and accountability of the President of the National Judicial Office (together with the role of the National Judicial Council), in particular as regards  appointments of judges and court leaders, probationary periods, irremovably of judges, their evaluation, disciplinary proceedings and transfer of cases.

The opinion also refers to transitional issues (retirement of judges and the appointment of the president of the Curia).

The main question examined in the draft opinion is whether the powers of the President of the National Judicial Office are too wide and whether there are sufficient means of control by the National Judicial Council.

III. Conclusions

• While the Commission identified also some positive elements in the laws on the judiciary and it has no doubt that there was a need for reform of the previous system, it also found elements which are problematic.
• The excessive concentration of powers in the hands of the President of the National Judicial Office (NJO), who acts as a single person, is not subject to sufficient checks and balances. The President’s supervisory organ, the National Judical Council has only weak controlling powers and there is no judicial control of the decisions of the President of the NJO.
• In no other member state of the Council of Europe such important powers, including the power to select judges and senior office holders, are vested in a single person.
   

The major points which need revision include:

·         the regulation of a number of organisational issues on the level of cardinal laws,

·         the election of the President of the NJO for a nine year period, which can be indefinitely extended by a blocking majority of one-third of members of Parliament,

·         the very extensive list of competences of the President of the NJO, which are not subject to a veto by the NJC or subject to judicial control,

·         the attribution of the powers of the President of the NJO to an individual person, without providing for sufficient accountability,

·         the absence of an obligation for the President of the NJO to motivate all decisions,

·         the composition of the NJC exclusive of judges, without the membership of other actors (advocates, civil society),

·         the restriction of the NJC on mere recommendations / opinions in most of its powers,

·         the lack of a veto by the NJC against the appointment of court presidents by the President of the NJO,

·         the system of supervision of judges by the court presidents who have to report to the superior courts, up to the Curia, about judgments, which deviate from earlier case-law (uniformisation procedure),

·         the strong influence of the President of the NJO on the appointment of court presidents and other senior judges,

·         the possibility of the President of the NJO to initiate the uniformisation procedure, which contradicts his or her administrative role,

·         long probationary periods for judges, and in particular the fact that they can be repetitive,

·         the possibilities of transfer of judges against their will and the harsh consequences of a refusal (‘exemption’ and automatic dismissal),

·         the absence of sufficient fair trial guarantees in evaluation and disciplinary proceedings,

·         the transfer of cases by the President of the NJO to another court as such, but especially the absence of objective criteria for the selection of cases to be transferred and the court to which the cases are to be transferred,

·         the regulation on early retirement of judges.

• Consequently, the essential elements of the reform – if they remain unchanged – not only contradict European standards of the organisation of the judiciary, especially its independence, but are also problematic as concerns the right to a fair trial under Article 6 of the ECHR.  

The Secretary General of the Council of the Council of Europe, Mr Jagland, visited Budapest on 21 March 2012 in order to discuss the implementation of the recommendations of the Venice Commission with the Hungarian authorities. In reply also to calls to do so by the European Union, the Hungarian Government declared that it would follow the recommendations by the Venice Commission.

Text of the opinion CDL-AD(2012)001