One of the most serious critiques among the six recent opinions formulated by the Venice Commission (VC) with regards to the reform of the Hungarian constitutional system concerned the structure and management of the judicial system. . The critique focused on the concentration of power in the hands of one person without any checks and balances. The second serious concern was the power vested in the National Judicial Office (NJO), the use of which might violate the right to a fair trial.
The three NGOs assert that in order to comply with democratic standards, the Government should reform the centralized nature of the management of the judiciary, and introduce new provisions to protect citizens’ right to an independent, impartial and fair trial.
The three NGOs believe that the adopted amendments do not achieve sufficiently comprehensive reform of the judicial system,, which the VC depicted as threatening the independence of the judiciary as a whole. Transferring certain powers from the president of the NJO to the National Judicial Council (NJC) somewhat mitigated the centralized character of the management of the judiciary, but the system still remains centralized, since not even the amended regulations grant the NJC the conditions and powers necessary to counterbalance the power of the president of the NJO. It is also true that the new rules narrow the discretionary power of the president of the NJO to designate courts or transfer judges, but this still does not guarantee the right to a fair trial in every case.
The NGO analysis raises concerns regarding the following:
1. The Fundamental Law does not provide a basic guarantee of judicial independence. The basic rules related to the organisation of courts should be written into the Fundamental Law. In their absence, the constitutional protection of judicial independence is uncertain. This has been clearly demonstrated by the Constitutional Court’s recent decision on the “forced retirement” of judges, where the Constitutional Court had to resort to the rather vague notion of “historical constitution” to establish the unconstitutionality of removing judges.
2. The powers of the president of the NJO, who is elected for nine years and may be re-elected, are unacceptable in light of insufficiency of the controls placed on the president’s powers. It is imperative to introduce sufficient control over the powers of any senior elected officials who may remain in office for an extremely long period. The amendment did not shorten the term of the president of the NJO, nor eliminate the possibility of re-election.
3. Judges and members of the NJC are still dependent upon the president of the NJO.According to the VC, the president of the NJO is only partly controlled by the NJC, since the members of the Council are in many ways dependent upon the person whose activity the NJC is supposed to supervise. The amendments did nothing to undermine this dependence. It is still the case that the president retains the right to reject any judicial candidate, and he/she may also put pressure on judges already in office by transferring them for one year to another part of the country. In addition, the budget of the courts must be approved by the president of the NJO.
4. Transfer of cases – violation of the right to a fair trial. The previous rules made it possible for the President of the NJO to assign a given case to any court he or she desired, in order to ensure “the adjudication of cases within a reasonable period of time.” The amendment restricts this power to the extent that the President of the NJO must now take into account the principles established by the NJC in the course of exercising the power of transferring cases, must provide the reasoning behind each decision; all transfer decisions are also now subject to appeal by the affected parties. However, the allocation of cases is still not determined by law, and the right to appeal transfer decisions is ineffective; thus, the right to a lawfully appointed judge is still infringed. These limitations do not suffice to prevent the manipulation of court procedures for political, economic or other reasons.