Hand-picked judges are nothing new in Hungary. Before the regime change in 1989, the courts operated as part of a Soviet-style, unified state, in which political control over the courts was ensured through the Minister of Justice.
1989 constitution limited the Minister of Justice’s influence
The new Constitution of 1989 broke with the concept of unified state power and guaranteed judicial independence. However, the minister remained in charge of administration up until 1997. The minister's powers over the courts were limited by the organisations of judicial self-management. And the Constitutional Court at the time found that this model of administration was compatible with the Constitution.
The system, which was created in 1997 and had no precedent in Hungarian history, was aimed at the absolute isolation of judicial administration from the executive. The Minister of Justice no longer had power over the administration of courts, and a new principal body charged with judicial administration – the National Judicial Council – was established.
The Minister of Justice and two MPs still sat on this council, but judges elected by other judges represented a two thirds majority of members. Soon it turned out that the system, based on a model of total self-management, needed a radical overhaul, as the presidents of regional courts acquired decisive influence over administration and could control their own activities.
2012 brought more unprecedented changes to Hungary’s judicial system
A new judicial system was implemented on 1 January 2012. This was based on a third model, which was also unprecedented in Hungary. The Venice Commission, which is in charge of examining compliance with constitutional provisions, not only said that "the reform, as it were, threatens judicial independence" but also that "a unique system has been created, having no counterparts in any European countries".
In this new system, the president of the National Judicial Authority (NJA), who is elected by the Parliament had extremely strong powers, and the National Judicial Council, elected by judges, really only had minor checking powers over the president. Since then there have been some minor adjustments. However, although many of the powers of the president of NJA were restricted following international criticism, the president could still exercise extraordinary influence over how the courts operated.
The government's plan was – at the levels below the Curia and the High Administrative Court – for the administration of justice to be managed partly by the president of the NJA, elected by Parliament, and partly by a member of the government, namely the Minister of Justice, under the limited control of the councils of judges with members chosen among themselves. This meant that the minister acquired administrative powers over the very courts that are responsible for making judgements related to infringements committed by the executive.
Though not ensuring direct interference with the decisions made by the judges, the administration of the courts effectively determines who may make rulings and how.
Draft legislation puts power over judges firmly in the hands of the executive
According to the draft legislation on the table now, the Minister of Justice would have important powers related to the budgets of administrative courts. The Minister would launch calls for applications for positions of judges in administrative courts, and advise the President of the Republic on the appointment and dismissal of judges. Furthermore, the Minister would assign administrative judges to specific courts and appoint and dismiss the heads of administrative courts (with the exception of the president of the council). He would also be able to hire and fire secretaries and clerks serving at administrative courts.
Although the Minister would in theory have to cooperate with the bodies of judicial self-management – characteristically invested with consulting rights – nobody will become a judge at an administrative court or the president of an administrative tribunal unless the Minister of Justice says so.
What should we expect for the future?
For the time being, the government is not planning to lay off the judges currently in post at administrative courts. If judges request to be taken over by the administrative tribunal or the High Administrative Court, their requests will be granted though. Calls for applications will be possible only for the posts remaining vacant in this way, but we do not yet know how many new judges will be appointed. Judicial leaders – with the exception of the presidents of councils – will not be able to keep their posts, only their executive pay.
Judges not requesting takeovers will be able to continue their careers as judges at labour courts. So as long as they request to shift to the new system, judges currently serving at administrative courts may be able to prevent, at least temporarily, only politically appointed judges giving judgements at the new special tribunals.