28 February 2012
The HHC, the HCLU and the Eötvös Károly Institute analysed the new laws on the court system and the Prosecution Service of Hungary.
The main conclusions of the analysis are the following:
- The administration of courts has become fully centralised; collective decision-making has been replaced with a one-person decision-making mechanism. The President of the National Judicial Office (NJO) administers courts in a non-transparent way, without any control.
- The NJO President’s mandate is automatically prolonged if no new President is elected by the Parliament, thus may be kept in office for an indefinite period of time.
- Judges, with the exception of the judges of the Curia, will be practically appointed by the President of the NJO, who is not bound by the proposal of the council of judges assessing applications for judicial positions and hearing applicants. This threatens judicial independence.
- The President of the NJO may appoint a court other than the legally designated court to proceed in a given case if the initial court’s extraordinary and disproportionate caseload results in a situation by which the case will not be concluded in reasonable time.
- The National Council of Judges (Országos Bírói Tanács) has no substantial power: it may only comment on the measures of the President and make suggestions (which can be disregarded without any consequence), thus it may not perform any real control over the President.
- The transparency of the judiciary has been decreased: decisions of the President of the NJO and minutes of the National Council of Judges’ sittings are available only for judges.
- As far as the Prosecution Service is concerned, the model implemented by the new rules is still a hybrid one: some characteristics suggest an independent prosecution service, while other features show a prosecution service subordinated to the Government. The Prosecution Service is neither responsible to, nor controlled by any other body.
- Prosecutors are subordinated to the Chief Public Prosecutor, and may be instructed by him/her or their superior prosecutor. However, the Chief Public Prosecutor qualifies as a superior prosecution for every other prosecution service, thus may overrule the “ordinary” way of giving instructions. Furthermore, the Chief Public Prosecutor may withdraw appointments to leading prosecutorial positions without justification any time. Thus, the Chief Public Prosecutor may practically control the whole system. At the same time, substantive and procedural guarantees are lacking in this regard.
- The mandate of the Chief Public Prosecutor has been extended to 9 years, which leads to the institution’s further separation from the parliamentary cycle and strengthens the independence of the Prosecution Service from other branches of power. The mandatory retirement age for the Chief Public Prosecutor is 70 years, but he/she may remain in office for an indefinite period of time, until the new Chief Public Prosecutor is elected by a two-thirds majority. The Chief Public Prosecutor is neither responsible to the Government, nor to the Parliament: he/she only has the duty to report to the Parliament annually, and MPs only have the right to pose questions to him/her; the right to pose interpellations was abolished.
- The new laws provide prosecutors with far more power regarding criminal and civil procedures than necessary, the exercise of which may easily violate fundamental rights.
- Prosecutors’ decisions in criminal procedures may be reviewed ex officio, however, the review is only “particularly justified” (i.e. it is not obligatory) even in cases of ill-founded decisions or explicit infringement of legal provisions. The Chief Public Prosecutor’s right to file a lawsuit in civil cases has been extended; significant rights were granted to prosecutors in monitoring associations.
Our full analysis is available here.