This June the Parliament will elect the President of the new Supreme Administrative Court, who will have extremely wide powers over judges and cases concerning a range of issues from taxation to human rights. But legislation allows that someone with zero days of judicial experience may be elected without any professional screening.
The Venice Commission urged the government that “at least five years’ experience as a judge should be required for appointment to the post of President” of the Supreme Administrative Court, adding that administrative judicial experience is particularly important before becoming the chief judge of this branch of the judiciary. The government claimed to comply, but it did not.
The president of the Supreme Administrative Court will be nominated until the end of May by the President of the Republic and will be elected until mid-June by Parliament. Starting from right after the election, the chief judge will have extremely wide powers over the promotion of judges, case allocation, and over the salary and training of judges. Echoing the concerns of the Venice Commission, the United Nations Special Rapporteur on the independence of judges and lawyers reinforced that the new law will concentrate very extensive powers in the hands of a few stakeholders without effective checks and balances to counteract those powers.
The selection process is political and lacks professional elements: there is no screening of candidates or ranking by experts like in the case of, for example, the selection of judges for the European Court of Human Rights. The President of the Republic, who is elected by the Parliament, decides on the nomination in a secretive process and then the Parliament votes on the candidate.
The Venice Commission raised concerns over the election process of the chief administrative judge because election by Parliament “may lead to involving judges in the political campaign and to the politicisation of the process.” As a result of the selection process, the choice of the person of the chief administrative judge reflects the preferences of the legislature over the priorities of the judicial branch.
Lax criteria to become chief administrative judge
Although the Venice Commission recommended that the President of the Supreme Administrative Court should have a minimum of five years of judicial experience, it is possible under the Hungarian legislation that someone with less than five years, or even with no judicial experience at all becomes the chief judge. This is possible because the term “judicial experience” is interpreted broadly in Hungarian laws, to an extent where it means non-judicial work, too.
The Law on Administrative Courts was amended after the Venice Commission put forth its recommendation to provide for five years of experience. The modified text provides that work other than being a judge might also count as “judicial experience”. It allows former “senior advisors” or “advocate-generals” of the Constitutional Court and international judicial bodies to become presidents. These jobs are important but are clearly different from the position of a judge. Being a judge and bearing the responsibility of a decision is different from the tasks of a senior advisor who only drafts opinions and provides help to the judge. The judge makes a decision and bears the responsibility for it: an advisor, by definition, only argues but never decides.
This is important: the two main candidates, whose names were circulated in the press, do not have five years of judicial experience. Mr András Patyi, currently an administrative judge at the Kúria, lacks five years of judicial experience, and might only be elected if his former senior advisor status at the Constitutional Court is taken into account. Mr András Varga Zs., a judge of the Constitutional Court, was elected in September 2014, therefore, he will not have five years’ judicial experience until mid-June.
This example shows how the Hungarian government publicly claims to meet European best practices but does not in reality. Despite the Venice Commission’s clear recommendation for five years’ practice, the Government does not follow it, while claiming otherwise. It is now up to the President of the Republic to nominate someone with extensive judicial practice for the highest administrative judicial position.