László Detre y Endre Orbán: The main dimensions of constitutional interpretation of judicial indepedence in Hungary

Within the European Legal Space, the independence of the judiciary bears outmost importance [01] and that is the case within the Hungarian legal system as well. Accordingly, Article XXVIII (1) of the Fundamental Law [02] stipulates that everyone shall have the right to have any indictment brought against him or her, or his or her rights and obligations in any court action, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by the law. As such, the Fundamental Law – just as the Article 6 (1) of the European Convention on Human Rights (ECHR) and Article 47 of the Charter of the Fundamental Rights of the European Union – guarantees the right to an independent and impartial judge under the right to a fair trial.

The Constitutional Court of Hungary (CCoH) started to formulate its ground-laying decisions after the political changes in 1989-1990. These rulings had defined – and still define – the constitutional role and requirements of the independence of the judiciary [03], the state of which has been a matter of concern of European institutions i.e., the European Union (EU) and the Council of Europe (CoE) since 2012. Therefore, the goal of this paper is to present the legal framework that governs the functioning of the judiciary in Hungary, which should guarantee its independence. Secondly, the most relevant measures and evaluations provided by the European institutions in the concerned field are to be recalled. Finally, yet importantly, the paper, under the previously sketched framework, will discuss the main dimensions of the CCoH’s interpretation on the independence of the judiciary and provide a critical evaluation of the recent case-law.

2. THE LEGAL FRAMEWORK.

To begin with, it is necessary to present the current legal structure that shall guarantee the independence of the judiciary. This is important since parallel to the adoption of the Fundamental Law in 2011, the legal regime governing the organisation of the judiciary was also altered. Mainly three legal sources shall be recalled here. Firstly, as for the overarching principles, the constitution of Hungary, the Fundamental Law is to be mentioned. In addition, the detailed regulation regarding the legal status of the judges and the organisation of the judiciary are to be found in Act CLXI of 2011 on the Organization and Administration of the Courts (Administration Act) and in Act CLXII of 2011 on the Legal Status and Remuneration of Judges (Status Act) that execute the provisions of the Fundamental Law. It is important to note that a great part of the provisions is considered to be cardinal, which means that, according to Article T) (4) of the Fundamental Law, two-third of the National Assembly present may adopt or amend them. [04]

Articles 25-28 of the Fundamental Law contain the most important – structural – constitutional rules regarding the judiciary. On the one hand, the Hungarian judicial system is built up by district courts, regional courts, regional courts of appeal and the Kúria. [05] In this sense, the Kúria is the supreme judicial organ which is responsible for the uniform application of the law [Article 25 (1) and (3)]. On the other hand, the administration of courts shall be performed by a separate organ: [06] the President of the National Office for the Judiciary (NOJ) who is supervised by the National Judicial Council (NJC) [Article 25 (5)]. Both the President of the Kúria and of the NOJ, on the proposal of the President of the Republic, are elected from among the judges for nine years by two-third of the National Assembly [Article 25 (6) and 26 (3)].
Furthermore, the Fundamental Law requires that judges shall be independent, only subordinated to the law. They shall not be instructed in relation to their judicial activities and may not be members of political parties or engage in political activities [Article 26 (1)]. Judges are to be appointed by the President of the Republic and except for the President of the Kúria and the NOJ, they shall remain in office until reaching the general retirement age [Article 26 (2)], only be removed from office for the reasons and in a procedure specified in a cardinal act.

Finally, Article 28 of the Fundamental Law is also worth to be mentioned, amended by the Seventh Amendment of the Fundamental Law. [07] The original Article 28 stated that ‘the courts shall in principle interpret the laws in light of their purpose and in accordance with the Fundamental Law. When interpreting the Fundamental Law or any other law, it shall be presumed that they are reasonable and of benefit to the public, serving virtuous and economical ends.’ The 7th amendment inserted an extra sentence between the above quoted ones stating that ‘[a]t the search for the purpose of the laws, their preamble and the justification of the drafts shall be primarily taken into consideration.’ In addition, the official reasoning of the 7th amendment declares that the preambles and the reasoning of the drafts shall be considered as an authentic source of the objectives of the legislator. Thus, the Fundamental Law makes it obligatory to use these sources during the interpretation process even if it cannot be considered as an exclusive method of interpretation. This means that the constitution-maker decided to change the main rule of interpretation of the laws: while before the adoption of the 7th amendment the so-called objective teleological interpretation was the preferred method, [08] after the 7th amendment ordinary judges should use the subjective teleological interpretation and they shall enforce the intent of the law-maker [09] aiming at centralizing the interpretation of the laws. [10]

The Administration Act recalls the basic principles of the functioning of the judiciary. To begin with, courts, inter alia, shall deliver a final decision about the disputed or violated rights and through their adjudication, guarantee the enforcement of the laws [Section 2 (1)-(2)]. The governing principles (Sections 1-15) prescribe the independence of the judges; the financial autonomy of the courts; the binding effect of the judicial decisions; the equality before the courts; the right to a lawful judge (who is assigned by the procedural acts [11] and according to the case allocation rules at the competent court); the requirement of the a priori accessible case allocation rules [12] (vested with the president of the court after acquiring the opinion of the judicial council and judicial college); the requirement of the – in general – publicly open hearings and the public promulgation of the judicial decisions; the obligation to reason the decisions and the right to appeal.

Sections 25-45 detail the role of the Kúria in ensuring the uniform application of the law. [13] As such, the Kúria may adopt uniformity decisions that are binding on the courts. [14]

As a novelty, an extraordinary appeal procedure has been introduced in 2021 whereby parties may file a complaint to the uniformity complaint chamber (Sections 41/A-41/D) presided by the President or the Vice-President of the Kúria and composed of eight judges appointed by the President, from the judicial colleges of the Kúria. [15] This is important because judges shall deliver their decisions in line with – all of – the decisions of the Kúria that have been published in the register. [16] As a result, this new type of appeal means the introduction of a so-called ‘semi-precedent system’ [17] in Hungary.

Sections 65-88 detail the functions and powers of the President of the NOJ being responsible for the central administrative tasks of the judiciary. The president has, inter alia, the following competences and powers: overviewing the administrative activities of the presidents of the regional courts and of the regional courts of appeal; adopting normative guidelines, recommendations and decisions binding on the courts; representing the judiciary; drafting the chapter of the judiciary in the central budget (after acquiring the opinion of the President of the Kúria and of the NJC); deciding on the volume of the annual ‘cafeteria’ bonuses of the judges; determining the necessary number of judicial positions at the courts; determining whether the employment of a judge – due to the decrease of the competences or the jurisdiction of the court – is not possible anymore; publishing the application procedure of the judicial position vacancies; recommending the appointment and dismissal (on the motion of the president of the court or of the service court, see: Section 96) of judges to the President of the Republic; on the recommendation of the concerned courts’ presidents, with the consent of the judges, assigning judges hearing administrative cases to the regional court and to the regional court of appeal; deciding on the transfer of judges; deciding – in principle – on the secondment of judges; appointing and dismissing the judicial executives in certain cases defined by the Act; approving the organisational and operational rules of the regional courts and the regional courts of appeal; the overviewing the administrative activities of the court executives. The President of the Kúria shall, with some exceptions [18] practice these powers in relation to the Kúria (Section 77).

The President of the NOJ is required to brief the NJC in every six months, and annually the President of the Kúria, the presidents of the regional courts and the regional courts of appeal. Against the regulations adopted by the President of the NOJ, judges may file a constitutional complaint to the CCoH, while regarding personal decisions or decisions that affect the judicial service, the concerned judge may turn to the labour court and in certain cases to the service court. [19]

Sections 88-113 regulate the role and the competences of the NJC as the self-governing organ of the judiciary to supervise the administration of the courts. The NJC is composed of 1+14 members which include the President of the Kúria and the ones who are elected by a collegium of peer judges for one term of 6 years from all instances of the judiciary but judges from the Kúria – except for the President – cannot be members of the NJC. The presidency of the NJC is held by its members for 6 months, according to a rotation system. The NJC seats at least four times in every year convened by its president or on the motion of one third of its members.

The most Important tasks of the NJC are: overviewing the organizational activities of the President of the NOJ; providing opinions on the rules and recommendations adopted by the President of the NOJ; providing opinion on the draft budget of the judiciary and on the remuneration of judges; hearing the applicants of the President of the Kúria and of the NOJ; having the right to consent in case the President of the Kúria or the NOJ wishes to recommend the second or the third applicant to the President of the Republic to be appointed as a judge; determining the guidelines that the President of the Kúria and the NOJ shall follow while recommending the second or the third best applicant; having the right to consent if the proposed court executive did not gain support from the assessing body; appointing the president and the member of the service court to supervising the financial disclosure declarations of judges. It is important to emphasize that the NJC – by two third majority – may propose the disqualification of the President of the NOJ to the National Assembly. Still, the NJC liaises about its budget with the President of the NOJ who is also responsible for providing the means for the functioning of the NJC.

Sections 114-141 summarize the detailed rules on the court executives (presidents and vice-presidents of regional courts of appeal, regional courts and district courts; heads and the deputy heads of the judicial colleges; heads and deputy heads of the judicial groups and the chamber presidents), the secretary-general and the deputy secretary-general of the Kúria who are responsible for the management of the courts or of the departments.

The court presidents, among others, exercise the employer’s rights; direct the financial and economic activities of the courts; draft the organizational and operational rules of the courts; determine the work order and the schedule of the courts; approve the schedule of the colleges; convene the plenary session of judges; execute the decisions of the President of the NOJ. The court executives are to be appointed for 6 years (except for the chamber presidents), two times (the NJC may grant exception) by – depending on the exact position – the President of the Republic, the President of the Kúria, the President of the NOJ, the president of the regional court of appeal or of the regional court.
The executive positions are to be filled via an application procedure published by the appointer unless the Act renders otherwise. Depending on the position, the plenary sessions of the judges (including the judges at the Kúria), the judicial colleges or the judicial groups – by way of secret ballots – assess the applications and rank them. The appointer takes into consideration the assessment, but it has no binding effect. Should the appointer wish to nominate another applicant, a written reasoning is to be provided. If the appointer is the President of the Kúria or the President of the NOJ, the NJC is to be briefed. In case the applicant did not receive the majority of votes during the assessment, the consent of the NJC is required.

The appointer either appoints an applicant or considers the application procedure unsuccessful [20]. In the latter case, when the appointer does not appoint any of the applicants, a new application procedure is to be published. It is important to note, that in case the new application procedure is unsuccessful again, the appointer may fill the vacancy of the executive position via temporary nomination – without an application procedure – for maximum a year. [21]

The appointer shall examine the activities of the court executives at least one time during their period of service. It is to be rendered on the motion of the President of the NOJ – when his or her decisions are not executed – or of the assessment body when it proposes the removal from the position of the person concerned. If the examination finds that the executive is unfit for the position, he or she shall be revealed from duties with immediate effect. In such a case, according to Section 140, the court executive may appeal to the service court. If the examination finds reasonable suspicions for disciplinary offences, the appointer initiates a disciplinary proceeding.

Lastly, the provisions of the Administration Act (Sections 142-155) on the judicial bodies are to be summarized shortly. These are the plenary (at the Kúria) or full sessions of judges, the judicial colleges and the judicial councils. The plenary or full session of judges’ – convened by the president of the courts – main tasks are: electing delegates to the collegium which elects the members of the NJC; providing opinion on the applicants for certain court executives; initiating their examination and removal from office; electing and dismissing the members of the judicial council.

The college of judges is to be mentioned which is a body that is composed of the judges of the court assigned to certain type of cases. Depending on the hierarchy of the court, members of the lower courts’ colleges are to be delegated to the higher courts’ colleges. The college shall provide an opinion regarding the submitted applications for a judicial position and also for an executive position (in the defined cases); initiate the examination of the activities of the court executives or their removal from office and provide an opinion on the case allocation rules as well.

Lastly, the judicial councils are of 5-15 members elected for 6 years while the presidents and vice-presidents are elected from among themselves. The main competences of the judicial councils are providing opinion on the appointment (ranking the applicants), transfer and secondment of a judge; also on the annual budget, on the case allocation rules and on the organisational and operational rules of the courts.

According to its preamble, the Status Act aims at guaranteeing the constitutional principles of independence and impartiality of the judiciary. This is emphasized in Section 1 stating that judges shall be – in their adjudication activities – independent, having the same immunity as the members of the National Assembly (Section 2).

Provided otherwise in the Act, judges are appointed via an application procedure by the President of the Republic (Section 3). The Status Act details the requirement that applicants for a judicial position must meet (Sections 4-6). The President of the NOJ has the competence to publish the application procedure of the vacant judicial positions [Section 9 (1)].

A recently introduced special regime relates to justices of the CCoH: if they wish so, the President of the Republic shall appoint them as a judge of the Kúria. This novelty may have a strong impact on the composition of the Kúria where all the judges have previously served as so-called career judges, while the new regime allows for the justices elected by the National Assembly to become judges without going through the classical procedure.

Sections 7-22 contain the requirements, the process and the remedies regarding the judicial application procedure. According to this, applications must be submitted to the president of the court where the vacancy is open. The applicants shall receive objective and subjective points. The objective points are given after the experience and education of the applicants. As for the subjective points, the opinion of the judicial college, the result of the hearing of the judicial council and the opinion of the president of the district court where the vacancy is to be found shall be taken into consideration. Adding up these points, the judicial council ranks the applicants. If the subjective points given to an applicant change the order of the first three applicants that was calculated based on the objective points, the judicial council is obliged to provide a written explanation. Then, the judicial council transmits the ranking to the president of the relevant court. If the president of the regional court or of the regional court of appeal agrees with the ranking, he or she notifies the President of the NOJ. If he or she does not agree with the ranking, he or she has the right to suggest the second or the third applicant but needs to provide a written explanation.

As a last step, the applications are evaluated by the President of the NOJ. If the President of the NOJ agrees that the top ranked applicant is to be appointed, he or she proposes him or her to the President of the Republic (or transfers the applicant to the new position if he or she is a judge already). If he or she does not agree with the top applicant, it is possible to suggest the second or the third best applicant for the President of the Republic, whereby a written explanation is required. Importantly, in these cases, the consent of the NJC is required. Should it be given by the NJC, the President of the NOJ propose the second or the third applicant for appointment to the President of the Republic. Should it be not, the President of the NOJ may suggest the firstly ranked applicant. If the applicant is a judge, the same rules apply except that, in the end, the President of the NOJ transfers him or her to the new position.

However, the President of the NOJ has the power to disagree with the NJC. In these cases, he or she may suggest another applicant to the NJC or conclude the application proceduure as unsuccessful. According to Section 20, the process can be considered unsuccessful, if, for example, procedural rules have been breached or the judicial council did not provide sufficient reasoning.

In case of a vacancy at the Kúria, the President of the Kúria conducts the powers of the President of the NOJ. Having said that, the President of the Kúria shall liaise with the Preisent of the NOJ who, in the end, proposes the selected applicant to the President of the Republic or transfers him or her (if the applicant is a judge already).

Finally, the president of the concerned court shall inform the applicants about the results of the application procedure including the ranking and their scores. The President of the NOJ is obliged to publish the results on the website of the NOJ as well and applicants may challenge the results at the service court.

In Sections 23-35, the Status Act governs the details of the appointment, transfer and secondment of judges. Accordingly, the first appointment of a judge – with a very few exceptions – is for 3 years after which, depending on an assessment process, the judge may be appointed for an indefinite period by the President of the Republic.

Secondment to another court can be ordered to achieve a fair distribution of the caseload between the courts or for the professional advancement of the judges. Judges can be seconded for maximum a year in three years without his or her consent. In cases when regional court judges or regional court of appeal judges are concerned, the President of the NOJ has to acquire the opinion of the president of the court.
Section 34 allows to the President of the NOJ to transfer a judge to another position based on an application procedure.

According to Sections 35-88, inter alia, judges are entitled to a salary which corresponds to their positions and which guarantees their independence. The judge’s salary is composed of a basic element and bonuses. The basic salary of a judge is calculated according to certain indicators (such as experience) and cannot be lower than of the previous year. Judges shall be ranked to a higher salary category in every three years. Based on his or her assessment, on the recommendation of the competent college, the judge might be ranked to a higher salary category.
Judges are obliged to conduct their activities impartially without any external influences, fairly and unbiasedly towards the parties. Judges must refrain from any behaviour that would undermine the trust in the institution or in the processes or would endanger its dignity. Judges must also deliver the assigned cases in reasonable time.

The activites of the judges are to be evaluated. Such a procedure shall investigate the practice of the judge, including the application of substantial and procedural laws as well as his or her presiding practice, primarily based on the closed cases rendered by him or her. Evaluations are to be carried out regularly or in extraordinary cases. Regular appraisal shall be conducted after the third year of the first appointment and in every 8 years. Extraordinary evaluation is to be ordered when there is an indication that the judge is not able to fulfil his or her duties. It is also possible when the judge requests it or when a case has been pending for over 2 years. The process starts with a pre-evaluation ordered by the president of the regional court, the regional court of appeal or by the President of the Kúria. Ordinary and extraordinary examination are rendered by these actors (ex officio). However, in the latter case the head of the judicial college (at his place of service or at the court of appeal) or the president of the district court (concerning a district court judge) may initiate it as well.

The pre-evaluation is handled by the head of the college or an appointed judge. The president of the court, based on the pre-evaluation, drafts the report on the assessment that is to be handed over to the concerned judge. The person who conducted the evaluation, head of the competent college and the president of the court of the place of service are to be presented as well and the concerned judge is entitled to make oral or written remarks on the draft. The final assessment and its reasons in writing shall be provided by the court president after such a meeting. The result of the assessment may range from excellent (available for promotion) to unfit. The assessment can be challenged by the concerned judge and by the head of the competent college (at his place of service or at the court of appeal) at the service court. Should the result consider the judge unfit, the president of the court shall initiate an incompetency proceeding at the service court. If the service court finds the judge being unfit as well, it declares the reason of removal. In this case, the President of the NOJ is to be notified who shall take appropriate measures.

The judge’s service terminates by his or her death, by his or her dismissal by the President of the Republic or in case, after the first appointment, he or she does not meet the requirements of the indefinite appointment. In certain cases, enlisted in Section 90, the judge shall be dismissed. These situations cover, inter alia, resignations; medical conditions; reaching the statutory retirement age (at least 65 years); as a result of a disciplinary procedure; as a result of his or her assessment (incompetency procedure); failing to meet the financial disclosure declaration obligations or if a decision found a conflict of interest. Dismissals are initiated by the presidents of the courts or by the service court, and parallel with that, judges may resign anytime from their positions in writing.

The judge commits a disciplinary offense when he or she violates his or her obligations stemming from the service and also, when his or her behaviour or lifestyle endangers or violates the dignity of the court. Disciplinary proceedings against court executives are initiated by the appointer. In other cases, such procedures may be initiated by the President of the Kúria (regarding the judges at the Kúria); by the president of the regional court of appeal (regarding the judges at the court); the president of the regional court (regarding the regional and the district courts) at the president of the first instance service court. In case of the disciplinary proceedings, the service court sitting in a three members chamber firstly decides on the process itself. Decisions of the service court may range from rebuking, ranking the judge to a lower salary category or from his or her release from the executive position to initiating his or removal. The concerned judge may challenge the decisions to the second instance of the service courtc (see: Sections 101-130).

Judges may bring action concerning their service and their rights stemming from their service, in principle, to the service court (Sections 145-146). When the Acts does not refer to the service court, the regional court as labour court is competent to hear such cases.

3. THE EUROPEAN SCOPE.

As it has been indicated, parallel to the adoption of the Fundamental Law, the legal framework that governs the judiciary was also altered. The above detailed Administration and Status Act were adopted in 2011, entered into force on the 1st of January, 2012 and have been amended several times, introducing fundamental changes in the Hungarian legal system concerning the organisation of the judiciary. [22] In this regard, many aspects have triggered the attention of European actors that are going to be presented shortly below.

To begin with, The European Commission for Democracy through Law (Venice Commission) has adopted – so far – six opinions in which fully or partly have dealt with the independence of the judiciary in Hungary since 2011. [23] As the opinions reflected the legislation in force and due to the changes in the Acts – partly to implement some recommendations of the Venice Commission – only overarching remarks are to be recalled.

The Venice Commission interprets the independence of the judiciary in the light of Article 6 of the ECHR, equally applicable to the court and to the individual judge, including three major factors: guaranteed term of office, irremovability and the freedom to decide. [24] Independence refers to external and internal factors, too. [25]

With regard to the Fundamental Law, the Venice Commission underlined that the judiciary as a separate power was not textually indicated in the Constitution and also that concrete guarantees for the autonomous administration were recommended (enshrined in the relevant cardinal law) [26]. In addition, the speedy manner in which the laws on the judiciary were adopted or amended, the lack of consultation with the opposition parties and the society [27] and the excessive use of cardinal provisions were highlighted. [28] Furthermore, the Venice Commission, among others, raised its concerns regarding the vast powers of the President of the NOJ, vested with a single person [29] for a long term in office with weak accountability and supervision; the right of the President to consider application procedure unsuccessful; [30] the dependent relationship between the President of the NOJ and it’s supposed to be supervisory body; [31] the weak powers of the NJC and the prevailing ones of the President of the NOJ. [32]

As for the most recent concerns, the last opinion – regarding the Hungarian judicial system – is to be recalled. [33] Here the Venice Commission reflected the omnibus legislation [34] that introduced comprehensive changes once again. It also mentions the amendment that had been adopted in 2019 [35] changing the eligibility criteria of the President of the Kúria and allowing the justices of the CCoH to be appointed as judges to the Kúria without an application procedure. [36] The most important points of concerns are: the process of the adoption of the omnibus Act (swift procedure, without consultation) [37]; the power of the President of the Kúria to determine that certain cases are to be heard by five member panels (as the requirement of tribunal established by the law is applicable not only to courts but also to individual judges and judicial panels) [38]; the composition of the uniformity complaints chamber (appointed by the President of the Kúria including heads of the colleges temporarily mandated by him or her) via which the President of the Kúria may have decisive role on the overall jurisprudence, risking its politicization [39]; the power of the President of the NOJ to assign judges who have previously been assigned to the NOJ to a higher position that allows practically bypassing the promotion procedure. [40]

Similar remarks to the ones found in the Venice Commission’s opinions appear also in the European Commission’s Rule of Law Reports from 2020 and 2021. The 2020 report [41] emphasized – in line with the observations of the Venice Commission – the shortcomings concerning the NJC to supervise the activities of the President of the NOJ. In this regard, the report listed the lack of its consultative competence about legislative proposals concerning the judiciary; its limited role in the application process of judges and court executives; and that the NJC is functionally dependent on the President of the NOJ. The report recalled that the NJC had criticised the practice of the former President of the NOJ declaring the application processes of court executives unsuccessful [42] and mandating interim ones leading the NJC to request the National Assembly to remove the President of the NOJ (later rejected by the National Assembly). [43]

Importantly, the 2020 report presented the public opinion on the independence of the judiciary with an observable negative trend. In addition, the report mentioned a decision of the Kúria, which declared a reference for a preliminary ruling from a district court judge to be unlawful. In the concrete case, the interim president of a regional court even initiated a disciplinary procedure against the concerned judge but withdrew it later. Such phenomena have a negative impact on the perception of judicial independence similarly to the negative atmosphere created by pro-government media outlets [44] undermining the public trust in the judiciary. The report also points out the possibility of appointing justices of the CCoH as judges without an application procedure and the amended eligibility criteria for the President of the Kúria, allowing the time when one served as a justice of the CCoH to be taken into account as judicial experience. [45] Last but not least, the report presents the amendment of Act CLI of 2011 on the Constitutional Court (ACC) which allowed state organs to submit constitutional complaints against final judicial decisions.

The 2021 Rule of Law Report concerning Hungary by and large raised the same concerns. The 2021 report highlighted that the new President of the NOJ was more cooperative with the NJC than his predecessor, but the cooperation was limited to the legally required minimum. It was underlined – just as in the above detailed opinion of the Venice Commission – that the President of the Kúria may determine cases in the case allocation rules that are to be heard by five member panels. The composition of the uniformity chamber and the role of the President of the Kúria in this regard were also highlighted. The report recalled that according to the amended Acts, eight justices of the CCoH have already been appointed as judges to Kúria [46] and one of them has become the new President of the Kúria. The report presented that the NJC opposed his nomination. [47]

3.3. The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

Some older issues presented in the previous chapters have reached the European judicial forums as well. The following well-known court cases with regard to judicial independence in Hungary are to be highlighted.

Firstly, a decision of the CJEU should be mentioned which has been a result of an infringement procedure. [48] The subject matter of the case was the forced early retirement of judges resulting from lowering the retirement age of judges by law. The Status Act rendered that judges who reached the statutory retirement age should be dismissed. The general retirement age was defined by Act LXXXI of 1997 on social insurance benefits and the application of this general age limit meant lowering the threshold in the case of judges from 70 to 62 years. The Government of Hungary claimed that the underlying aim was to standardize the retirement age and redressing positive discrimination, but the CJEU came to the conclusion that Hungary, by abruptly and significantly lowering the retirement age of judges resulting their dismissal, failed to comply with its obligations stemming from the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. [49]

Secondly, Baka v Hungary has to be outlined. [50] Mr. Baka was elected as the president of the Supreme Court of Hungary in 2009 for nine years after seventeen years of service at the ECtHR. During the time of the comprehensive constitutional and legislative changes in 2010-2011 the applicant raised his concerns about the proposed changes concerning the judiciary, such as about changing the retirement age of judges and about the proposals of the above detailed Acts. The Fundamental Law renamed and re-created the Supreme Court of Hungary as Kúria, [51] and its Transitional Provisions – having been adopted on the 30st of December 2011 – ordered the termination of service of Mr. Baka. What is more, the eligibility criteria within the Administration Act for the position of the President of the Kúria have also been altered, so Mr. Baka had no more chance to be reconsidered as a potential candidate. Analysing the case, the EctHR found a violation of Article 6 (1) of the ECHR since there was no judicial review available in the case of Mr. Baka. Secondly, the EctHR found a violation of Article 10 of the ECHR. In this regard, the EctHR noted that the legislative proposal of removing the applicants from office and practically making him ineligible for the new corresponding position were introduced after Mr. Baka had expressed his thoughts about the fundamental changes concerning the judiciary. The EctHR did not accept the Government’s arguments and stated that the measures did not serve but violated the independence of the judiciary. Lastly, the EctHR underlined that expressing the opinions of the legislative proposals was not just a right but a duty of Mr Baka. Moreover, his opinions were made from a professional perspective. Therefore, and even though Mr. Baka remained as a judge and president of a civil chamber at the Kúria, the measures were irreconcilable with the independence of the judiciary and the irremovability of judges and the premature termination of office posed a chilling effect on the judiciary. [52]

Thirdly, the already mentioned request for a preliminary ruling has to be emphasized. [53] The case had been referred by a judge from a district court in Hungary hearing a criminal case against a Swedish citizen. The concrete issue was about the lack of objective criteria and system of selecting translators in Hungary and as such and the first question was whether the Hungarian practice was in line with EU law. However, the importance of the case comes from a different angle. The judge also referred questions to the CJEU, asking whether his own independence and the right to fair trial in front of him were granted in the light of the systemic changes regarding the judiciary and since the President of the NOJ appointed an interim president to his court of appeal. As it has been presented, the president of the regional court initiated a disciplinary procedure against the referring judge which later has been withdrawn. In addition, on the motion of the Prosecutor General, the Kúria – following a special opinion giving procedure, the remedy in order to preserve the legality – held that the reference was unlawful since the questions were not relevant for the proceeding. This procedure was fully contrary with the position of the CJEU on the discretionary decision of judges to initiate such proceedings, [54] and accordingly, the CJEU found that such a review of requests for preliminary rulings by national supreme courts was incompatible with EU law as it deprives the CJEU’s from its exclusive competence concerning the admissibility of such references. [55]

4. THE DIMENSIONS OF THE INDEPENDENCE OF THE JUDICIARY IN THE CASE-LAW OF THE CCOH.

Judicial independence is an indirect topic of legal philosophy both in connection with public opinion [56] and in relation to the judge’s preconceptions or emotions. [57] However, from a constitutional point of view, independence is mainly discussed with regard to other state powers, i.e. external independence from other state organs and internal independence from other judicial actors. Accordingly, the almost self-evident significance of the principle within the European Legal Space is not only a central topic of the Hungarian literature [58] and textbooks [59] but also of many key decisions of the CCoH. [60]

Analysing the jurisprudence, Ágnes Czine distinguishes three dimensions of the constitutional interpretation of judicial independence: [61]

i) firstly, it concerns the organisation of the judiciary. [62] In this sense, judicial independence is linked to the separation of powers as set out in Article C) (1) of the Fundamental Law.

ii) secondly, it is intrincially interlinked with the right to an independent and impartial judge as a fundamental right, protecting the parties as it is purported by Article XXVIII (1) of the Fundamental Law. [63]

iii) and finally, it is a constitutional principle that protects the judge from external pressure in order to being able to decide a case. According to the practice of the CCoH, this is also a ‘right, guaranteed by the Fundamental Law’ derived from Article 26 (1). [64]
To begin with, the CCoH, concerning the review of a legislation that rendered the general natural security check of (sitting) judges, in the light of the principle of the separation of powers [Article C) (1)], proclaimed that:

– ‘[j]udicial power – separated from the legislative and executive powers in the Hungarian parliamentary democracy, too – is a manifestation of state power that decides with binding force, through an organisation dedicated for this purpose, about the law debated or breached, in the course of a procedure regulated in an Act {Decision 3242/2012. (IX. 28.) AB, Reasoning [11]}. In the interpretation of the Constitutional Court, the independence of the judiciary enjoys a prominent role in the constitutional system of the separation of powers. Stability, neutrality and continuity are the most significant features of judicial power in contrast with the two other branches of power that have a “political” character. Thus the courts are not placed in a mutual interdetermination and interdependence with the other branches of power, as those are with each other. Guaranteeing the independence of judges cannot be identified with separating the judicial power from the two other branches of power – it is a broader issue that has to be addressed within the organisation of the courts as well. While ensuring the limitation of executive power is justified and constitutionally necessary both through the establishment of the institutions of parliamentary control and by way of the general application of judicial control over public administration, any external interference with the judicial power should face more severe constitutional limitations based on fundamental principles of guarantee. Judicial power should be independent from the political determination of the two other branches of power and from their changes; this requirement shall exclude any influence from the two other branches of power over the adjudicating activity of the courts’. [65]
– ‘[a]s laid down in an earlier decision of the Constitutional Court, “the enforcement of the division of powers and the independence of judges shall not be guaranteed by the lack of connections between the judicial system and the two other branches of power”, the “non-governmental” organisations and other actors of the political and social system. From this point of view, it is important to note that the constitutional principle of the independence of judges applicable to the activity of adjudication is not identical with the independence of the court structure that provides a framework for the function-specific activity of courts. The public authority activity of the independent judicial power materialises in performing judicial tasks {Decision 13/2013. (VI. 17.) AB, Reasoning 61}. In this decision, the Constitutional Court also explained that the existence of a constitutional problem could indeed be considered, if there was a unilateral shift of power to the detriment of the judges and to the benefit of other branches of power’. [66]

This position reaffirmed the earlier Decision 34/2013. (XI. 22.) AB, whereby the CCoH concluded that the independence of the judicial power is based on the principle of the separation of powers, enshrined in Article C) (1) of the Fundamental Law. This means that courts are clothed with judicial powers to deliver final decisions with binding force on infringed or disputed rights. Their independence is a constitutional value that is to be granted by institutional/structural, financial and decision-making autonomy rules on the one hand, and rules that governed the independence of the individual judge on the other hand. This is why Article 26 (1) of the Fundamental Law states that judges may not be instructed in their judicial activity and are subject only to the law suggesting that the organisation of the judiciary and the legal status of the judges are among the most important safeguards of the judicial independence.

The issue of judicial independence was brought before the CCoH in the matter of forced retirement of judges not too long after the entry into force of the Fundamental Law. While the court annulled the challenged regulations, it formulated the following fundamental considerations, partly recalling its former case-law:

– ‘[i]t is a minimum requirement of the consolidated interpretation of the Hungarian historical constitution to accept that the Acts of Parliament constituting the civic transformation completed in the 19th century form part of the historical constitution. These had been the Acts that had created – upon significant precedents – a solid fundament of legal institutions that served as a basis for building a modern state under the rule of law. Therefore when the Fundamental Law “opens a window” on the historical dimensions of our public law, it makes us focus on the precedents of institutional history, without which our public law environment of today and our legal culture in general would be rootless. In this situation the responsibility of the Constitutional Court is exceptional, or indeed historical: in the course of examining concrete cases, it has to include in its critical horizon the relevant resources of the history of legal institutions. [67]
– ‘[t]he principle of judicial independence, with all of its elements, is an achievement beyond doubt. Therefore the Constitutional Court establishes that judicial independence, and the resulting principle of irremovability, is not only a normative rule of the Fundamental Law, but also an achievement of the historical constitution. Thus it is an interpreting principle obligatory to everybody, based on the provisions of the Fundamental Law, and which is to be applied also in the course of exploring other potential contents of the Fundamental Law’. [68]
– ‘[a]lso in Hungary, the legal relationships of judicial service enjoy increased constitutional protection as compared to other legal relations in public service. In addition to the right to bear a public office, the constitutional protection of the service relationship of judges results from Article 26 para. (1) of the Fundamental Law, too. According to this provision of the Fundamental Law, judges are independent and answer only to the law. The independence of judges is the most important guarantee of the independence of the judiciary’. [69]
– ‘[t]he Constitutional Court attributed great importance to the organisational and status-related guarantees in the guarantee-system of judicial independence. “The institutional protection of judicial independence and autonomy by way of safeguarding laws is an unquestionable value, as an important guarantee of the enforcement of human and civic rights as well as of the rule of law. The overlapping, connected and supplementary provisions of the Constitution, the ASJ and the Act LXVII of 1997 on the legal status and the remuneration of judges together build a triple protective system, excluding the restricting of the sovereignty of judicial power.” [Decision 54/2001. (XI. 29.) AB, ABH 2001, 421, 433–434.; Decision 13/2002. (III. 20.) AB, ABH 2002, 85, 97.] Personal independence is a part of judicial independence. It means that judges may not be ordered, and they may not be discharged or removed against their will – only for reasons – and through a procedure – specified in a cardinal Act. It is an element of personal independence that the office of a professional judge is a “lifetime” tenure. (Acts on the judiciary usually differentiate between the persons exercising a judicial function on the basis of what type of judge is concerned: a distinction is made between professional and lay judges, jurymen or assessors; one of the elements of the differentiation is defining the tenure of professional judges as an assignment “for lifetime”, in contrast with lay judges or jurymen whose mandate is for a fixed term.)’. [70]
– (the Status Act) ‘plays a paramount role in the individual aspect of judicial independence, as it is designed to guarantee in the regulation of the legal relationship of judicial service the freedom of status necessary for unbiased judicial work. In the context of judicial independence, one may conclude that securing the stability of the legal relationships of judicial service is a requirement based on the Fundamental Law, demanding extra guarantees in comparison with other legal relations. The guarantees include that it takes a cardinal Act to regulate the reasons of terminating the judicial service, the term of exercising the profession, and the upper age limit under which judges are irremovable; judicial service relationships can only be terminated – in the absence of the agreement of the judge – on exceptional basis (in case of a serious disciplinary misdemeanour, committing a crime, becoming incapable to practice the profession). The irremovability of judges guaranteed by the Fundamental Law is a personal guarantee, which secures the autonomy of judges in passing judgements by excluding the possibility of causing any disadvantage to the judges related to their legal relationship of service because of passing a judgement in line with the laws and their conscience. At the same time, the right of the subjects of the procedure to an “independent judge” is a right guaranteed in Article XXVIII para. (1) of the Fundamental Law. The irremovability of judges is, at the same time, a guarantee of the right to an independent and impartial court. Taking it into account, the legislator must determine the upper age limit of practicing the judicial profession in a manner that makes it unambiguous and calculable’. [71]

These considerations have been echoing in the case-law of the CCoH and might be regarded as basics. To sum up, the irremovability of judges, guaranteed by the Fundamental Law, is a personal guarantee of their autonomy, since it precludes them from being removed by way of legislation. [72]

In addition, it can also be concluded that the independence of the judiciary is one of the main guarantees of the protection of fundamental rights and the rule of law. [73] The CCoH connected the rule of law and the independence of the judiciary stating that ‘[the] independent judiciary (...) is the foundation of the rule of law. Judicial independence is neither a fundamental right nor a privilege of the judge but serves the interests of those seeking justice.’ [74] In the absence of such a tribunal, the enforcement of individual rights is compromised and may ultimately become impossible. [75] Thus, according to the CCoH, status and structual guarantees shall serve the independence of the adjudication. [76]

Furthermore, in Decision 13/2013. (VI. 17.) AB – initated by the Government of Hungary, after the Venice Commission adopted its Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary (CDL-AD(2012)020.) – the CCoH formulated that the position of the judiciary was special among the state organs and, practically enjoyed rather absolute protection which serveed the independent adjudication. The legal safeguards shall provide protection against external but also from internal influences, so to say, judges shall be independent from other judges as well. [77]

As regards the internal independence, Decision 33/2017 (XII. 6.) AB on the so-called Integrity Code, issued by the President of the NOJ, has to be mentioned whereby the CCoH faced the interrelationship between the administration of justice [78] and the independence of the judiciary. The petitioner, a judge, stated that a provision of the Integrity Code issued by the President of the National Office of the Judiciary (NOJ) defined the concept of integrity in such a way which provided an unlimited margin to the President of the NOJ – elected by the Parliament –, when it stated that it meant, inter alia, ‘compliance with the objectives, values and principles set out in the instructions and recommendations of the President of the NOJ, also conduct and organisational functioning in accordance with them’. [79] Accordingly, this was not only a mere reference to the code, but rather a risk that the recommendations would discretionally replace the law by a quasi-regulatory regime in future, which could jeopardise the functioning of the court as an independent branch of power. The CCoH held that the rules prescribed by the President of the NOJ essentially constituted binding regulations for the judges, solely based on principles and values which were derivable from the Fundamental Law or the the laws governing the organization of the judiciary. As a result, ‘[t]he content of the regulations must therefore remain within the scope of the regulation of matters relating to the administration of the courts and must not affect the independence of the judge who is to about to render a judgement.’ [80] The CCoH pointed out that the non-binding recommendation could not lay down rules of conduct, possibly affecting judicial independence and as such, partially annulled the contested rules.

Judicial independence does not only protect judges themselves, but it serves the citizens through the right to a fair trial [Article XXVIII (1)]. In this sense, the independence of the judiciary is to be considered as a guarantee of the right to fair trial [81] being indispenseble for the protection of other fundamental rights. [82]

In this regard, it is necessary to emphasize that the right to fair trial is to be considered as an absolute one [83]. Adding to the previous considerations, the CCoH emphasized the importance of the right to effective judicial remedy as a sub-component of the right to fair trial. It is imperative that guranteeing formal judicial review on its own is not sufficient but a real or material review is required.

Besides the right to an effective judicial protection, the CCoH excessively interpereted other sub-compontents of the rights to fair trial. Accordingly, natural and legal persons shall have the right of access to a court, i.e., the right to an independent and impartial tribunal. [84] In this sense, independence is a prerequisite for an impartial procedure. [85] Impartiality connects the dots, namely the structural requirements and the promise of individual justice. Impartiality also imposes certain obligations on the law-maker, as well as on the judges themselves. Firstly, it requires rules that – objectively – imply fairness while judges – subjectively – shall hear cases in a completely neutral manner. This objective-subjective test was imported from the case-law of the ECtHR. [86]

Additionally, judges shall not only be impartial but they have to seem to be as such. [87] These constitutional guarantees – independence and impartiality of the judiciary and their source, the right to fair trial – serve the need for a constitutional and final decision on the disputed law. [88] It is important to note that according to the CCoH, independence and impartiality, stemming from the right to fair trial, are two distinctive requirements but they are to be understood in the light of each other. Impartiality is closely linked to independence since only an independent court could act impartially in individual cases. Impartiality required the judge hearing the case to be free from prejudice, not being biased in favor or against any of the parties. [89] In this sense, the CCoH also emphasizes that the right to and independent and impartial court is an essential element of the fair trial. These requirements are to be considered indispensable for the protection of other fundamental rights. Only these may grant that the rights of the parties would be decided by truly independent forums. Moreover, indepdendence and impartiality of courts are the foundational principles of functioning of the rule of law. In a democratic state, it was vital that courts’ decisions may claim to be final and binding. Courts would only meet these requirements if they conducted their proceedings independently and impartially, in line with the right to fair trial. In the absence of independent and impartial adjudication, the enforcement of individual rights would fail. Thus, independence and impartiality, integral elements of the fair trial, shall be considered in a democratic rule of law state as unconditional constitutional claims. [90]

However, judges need to be able to protect their independence, and therefore the CCoH in the direct constitutional complaint procedure [91] initated by the forced retired judges acknowledged Article 26 (1) as a clause containing a special right of judges that they can invoke in front of the CCoH. This has been an important and activist interpretation since in constitutional complaint procedure only fundamental rights can be invoked and complainants – in principle – cannot rely other provisions such as provisions in the Chapter on ‘The State’. Nevertheless, this approach has become a living instrument and it has been recently reaffirmed by Decision 3035/2021 (II. 10.) AB which touched the guarantees of the termination of judicial service. [92]

Finally, it is necessary to draw attention to a specific aspect of interpretation relating to the indepedendence of the judiciary. It seems that in accordance to the latest jurisprudence of the CCoH, judicial independence does not only guarantee the right to fair trial, but on the contrary: it may be in a conflicting relation with it.

To put this problem into a context, the function of the CCoH is to be shortly elaborated. During the constitutional changes in 2011-2012, the powers of the CCoH were also changed and while actio popularis dissapeared, the right to individual constitutional complaints against judicial decisions – and under certain circumstances against laws – was introduced. As such, judicial decisions and the interpretation given by the courts have been subjected to the review of the CCoH. Analysing the new role, the CCoH, for a long time, insisted that it shall not be considered as a court of appeal, and it would never decide on the merits of the case. According to its case-law, examining the factual aspects of the case, apprasing the proofs and implementing the laws in concrere cases belong to the oridinary courts [93] and ultimately to the Kúria. [94] As such, the CCoH would only set constitutional boundaries on the possible interpretations of the law implemented by the court [95] and it has been emphasized several times that neither the abstract principle of the rule of law, nor the right to fair trial may provide basis for the CCoH to assume the role of the courts to become a ‘super court’ acting as a court of appeal. [96]

However, it seems, that this approach might have changed by a few cases. This turn originates from is Decision 20/2017 (VII. 18.) AB, in which the CCoH annulled a judgment of a general court since, in the view of the CCoH, the judge relied on the judicial practice but not the law in force. The decision, while prohibiting the so-called ‘arbitrary application of the law’, stated that ‘[i]f the court detaches itself from the law, it deprives itself of one of the material bases of its independence. A court which does not comply with the relevant legislation is in essence abusing its independence, which may in some cases result in a violation of the right to a fair trial’. [97]

This rather unfortunate conception [‘the court (...) abuses its independence’] can be applied by ad hoc manner without any concrete standards provided that the CCoH only stated the ‘in some cases’ contra legem legal application can reach the level of contra constitutionem but it failed to give any further guidelines regarding this issue. [98]

The recent case-law shows that this approach has been operationalised. [99] The CCoH has been cited this practice in important decisions, for example in the one which granted a locus standi to the National Bank of Hungary to file a constitutional complaint against an unfavorable judicial decision. [100] This basically allowed a state organ to argue against a final decision delivered by another state organ (the court) in front of yet another state organ (the CCoH) while the private party was not involved in the procedure due to the nature of the constitutional complaint procedure. [101]

In addition, an EU law related decision also quoted the possibility of abusing judicial independence. The constitutional requirement formulated by Decision 11/2020 (VI. 3.) AB shows a sceptical tone towards the EU integration and refers to the applicability of EU law. In this sense, the CCoH found it problematic that the Kúria has extended the scope of the SEGRO case of CJEU [102]. As a reaction, it connected the argument of ‘arbitrary disregard of domestic law in force’ with the ’unjustified application of EU law’ [103] stating that such situations would breach the Fundamental Law. The case would actually imply, that the CCoH, which always emphasises that it is not a ‘super court’ [104] and does not review the interpretation of the law given by the ordinary courts, would nevertheless claim for itself the power to review this single (and otherwise rather complex) question, i.e., whether the judge acting in the case has correctly set aside domestic law in favour of EU law. [105]

5. CONCLUSIONS.

The CCoH has so far enforced the principle of judicial independence as understood by liberal democracies. As such, it has been considered as a primary guarantee of the right to fair trial, a prerequisite for the protection of other fundamental rights and the guardian of the rule of law. These considerations reflect the European practice. Moreover, it has also created the possibility for judges to seek protection from CCoH through interpreting Article 26 (1) of the Fundamental Law as a special right of judges that can be invoked in constitutional complaint procedures. Having said that, and besides the issues having been pointed out by the European actors, there are some other recent developments that are rather concerning. On the one hand, the constitution maker seems to be convinced to centralize legal interpretation stronger than ever before with preferencing subjective teleological interpretation in Article 28 of the Fundamental Law and through the introduction of the so-called semi-precedent system. On the other hand, the CCoH’s new stance on the arbitrary interpretation of the law by regular courts and the concept of abusing their independence may lead to ad hoc interventions into the adjudication. In other words, as the above elaborated decisions imply, the CCoH may come close to becoming a court of appeal by considering in great detail and with special weight the facts of a case and the application of the law under these facts. This approach, combining with the possibility of the bodies with public power to file a constitutional complaint against final judicial decisions [106] may have a chilling effect on judges, risking their independence as it has been previously elaborated by the CCoH.

Abstract: Within the European Legal Space, the independence of the judiciary bears outmost importance and that is the case within the Hungarian legal system as well. The Constitutional Court of Hungary (CCoH) started to formulate its ground-laying decisions after the political changes in 1989-1990. These rulings had defined – and still define – the constitutional role and requirements of the independence of the judiciary, the state of which has been a matter of concern of European institutions since 2012. The goal of this paper is to present the legal framework that governs the functioning of the judiciary in Hungary, which should guarantee its independence. Secondly, the most relevant measures and evaluations provided by the European institutions in the concerned field are to be recalled. Finally, yet importantly, the paper will discuss the main dimensions of the CCoH’s interpretation on the independence of the judiciary and provide a critical evaluation of the recent case-law.

Key words: European Legal Space, Independence of the judiciary, Constitutional Court of Hungary, Hungarian legal system.

Resumen: Dentro del Espacio Jurídico Europeo, la independencia judicial reviste la máxima importancia; éste es también el caso del sistema jurídico húngaro. La Corte Constitucional de Hungría comenzó a formular sus sentencias fundacionales tras los cambios políticos de 1989-1990. Dichas sentencias habían definido -y siguen definiendo- el papel constitucional y los requisitos de la independencia del poder judicial, cuyo estado ha sido motivo de preocupación de las instituciones europeas desde 2012. El objetivo de este trabajo es presentar el marco jurídico que rige el funcionamiento del poder judicial en Hungría, que debería garantizar su independencia. En segundo lugar, se recuerdan las medidas más relevantes de las instituciones europeas en la materia. Por último, el trabajo analiza las principales dimensiones de la interpretación de la Corte Constitucional húngara sobre la independencia del poder judicial, y ofrece una evaluación crítica de la jurisprudencia reciente.

Palabras claves: Espacio Jurídico Europeo, independencia judicial, Corte Constitucional húngara, ordenamiento jurídico húngaro.

[01] See: VENICE COMMISSION, Rule of Law Checklist, CDL-AD(2016)007rev, pp. 20-23., For excessive evaluation, see: J. GROGAN, L. PECH, ‘Unity and Diversity in National Understandings of the Rule of Law in the EU’, RECONNECT Work Package 7 – Deliverable 1 April 2020, https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.1-1.pdf; J. GROGAN, L. PECH, ‘Meaning and Scope of the EU Rule of Law’, RECONNECT Work Package 7 – Deliverable 2 April 2020, https://reconnect-europe.eu/wp-content/uploads/2020/05/D7.2-1.pdf

[03] This is still true even if the Fourth Amendment to the Fundamental Law repealed the decisions of the CCoH that had been adopted before the Fundamental Law entered into force on the 1st of January 2012. The CCoH, in relation to a constitutional review of the Act on the organisation and the administration of the judiciary declared that it would cite its decisions having been adopted before the Fundamental Law entered into force under certain circumstances {Decision 13/2013. (VI. 17.) AB, paras [32]-[33]}. The former case-law have also been recalled in the decisions that are presented by this paper.

[04] Having said that, the legislator – initially – considered more regulations to be cardinal but the CCoH annulled some of them in its Decision 13/2013. (VI. 17.) AB, paras [101]-[105] since Article 28 (5) of the Fundamental Law requires the two-third majority of votes of the National Assembly present for adopting the detailed rules for the organisation and administration of courts and for the legal status of judges, as well as the remuneration of judges.

[05] For an overview, see: A. PATYI, ‘The Courts and the Judiciary’, in L. CSINK, B. SCHANDA, Zs. A. VARGA (eds), The Basic Law of Hungary. A first Commentary, Clarus, Dublin, 2011. p. 311.

[06] S. BARTOLE, The Internationalisation of Constitutional Law. A View From The Venice Commission, Hart Publishing, Oxford, 2020, p. 98.

[08] A. JAKAB, ‘A bírói jogértelmezés az Alaptörvény tükrében’, Jogesetek Magyarázata, n. 4, 2011, p. 86.

[09] On the intention of the legislature see: R. DWORKIN, A Matter of Principle, Clarendon Press, 1985; J. WALDRON, ‘Legislating with Integrity’, Fordham Law Review, n. 72, 2003, pp. 386-387.

[10] A. JAKAB, ‘What is Wrong with the Hungarian Legal System and How to Fix it’, Max Planck Institute for Comparative Public Law and International Law Research Paper, n. 13, 2018. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3213378 accessed 15 December 2018.

[11] Act CXXX of 2016 on the Civil Procedural Code; Act XC of 2017 on the Criminal Procedural Code and Act I of 2017 on the Administrative Procedural Code.

[12] The case allocation rules shall concern the secondment judges in advance as well. It is worth to note here that according to Section 10 (2) of the Administration Act, in certain cases, the President of the Kúria – after acquiring the opinion of the competent college – may decide that certain cases shall be heard of five member chambers.

[14] D. KARSAI, ‘A jogegységi határozatok alkotmányossági vizsgálata’, Fundamentum, n. 1, 2006, pp. 103–110.

[15] V. VADÁSZ, A. GYÖRGY KOVÁCS, ‘A game hacked by the dealer’, VerfBlog, 2020/11/10, https://verfassungsblog.de/a-game-hacked-by-the-dealer/, DOI: 10.17176/20201110-200050-0.

[16] Despite the complexity of the text, it is still possible for lower courts to detract from the interpretation of the Kúria but only when firm reasons are provided. The official justification of Act CXXVII of 2019 – that amended of the Administration Act – suggests this but it actually does not appear in the text. Regarding this, see: A. OSZTOVICS, ‘Törvénymódosítás a bírósági joggyakorlat egységesítése érdekében – jó irányba tett rossz lépés?’, Magyar Jog, n. 2, 2020, pp. 72-80.

[17] On the role of precedents, see: G. LAMONT, ‘Precedent and Analogy in Legal Reasoning’, The Stanford Encyclopedia of Philosophy, Spring 2016. D.N. MACCORMICK, R.S. SUMMERS, A.L. GOODHART (eds.), Interpreting Precedents. A Comparative Study, Routledge, 2016.

[18] For example, according to Section 19, he or she needs to liaise with the President of the NOJ to recommend the appointment of a judge to the President of the Republic or to transfer him or her to the new position.

[19] According to Sections 101-104/B of the Status Act, the president and the members of the service courts (maximun of 75+15) are appointed by the NJC on the recommendation of the plenary session of the Kúria, of the full session of regional courts and of the regional courts of appeal for 9 years (the first instance operates next to the Budapest Regional Court of Appeal while the second instance of service court, next to the Kúria).

[22] Having said that, an important exception shall be made here, namely the saga of the separated administrative courts that had been a matter of concern for a longer time and which has never been realized due to political debates. Bearing in mind the aim of this paper and volume of the problems around this question, the issues related to the administrative adjudication shall not be evaluated here. For a summary, see: V.Z. KAZAI, ‘One Step Back, Two Steps Forward: The Hungarian judiciary’s independence is still in danger’, VerfBlog, 2019/11/26, https://verfassungsblog.de/one-step-back-two-steps-forward/, DOI: 10.17176/20191127-002355-0; See also: VENICE COMMISSION, Opinion on the on the law on administrative courts and the law on the entry into force of the law on administrative courts and certain transitional rules, CDL-AD(2019)004-e.

[23] VENICE COMMISSION, Opinion on the new Constitution of Hungary, CDL-AD(2011)016-e; Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary, CDL-AD(2012)001-e; Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary, CDL-AD(2012)020-e; Opinion on the Fourth Amendment to the Fundamental Law of Hungary, CDL-AD(2013)012-e; Opinion on the on the law on administrative courts and the law on the entry into force of the law on administrative courts and certain transitional rules, CDL-AD(2019)004-e; Opinion on the amendments to the Act on the organisation and administration of the Courts and the Act on the legal status and remuneration of judges adopted by the Hungarian parliament in December 2020, CDL-AD(2021)036-e.

[27] CDl-AD(2011)016, paras 103-104.; CDL-AD(2012)001, para 9.;CDL-AD(2021)036, paras 19-22.

[28] In general: CDl-AD(2011)016, paras 22-27, 144-145; CDL-AD(2013)012 paras 129-134.; Regarding the judiciary: CDL-AD(2012)001, paras 17-20.

[29] According to the Venice Commission, despite the fact that States enjoy a wide margin on the organisation of judicial administration system, there is no State within the CoE in which such powers are vested with one single person without proper accountability, see: CDL-AD(2012)001, para 26. and 118 for ‘[t]the President is indeed the crucial decision-maker of practically every aspect of the organisation of the judicial system’.

[35]For details regarding the introduced changes see: V.Z. KAZAI, A. KOVÁCS, ‘The Last Days of the Independent Supreme Court of Hungary?’, VerfBlog, 2020/10/13, https://verfassungsblog.de/the-last-days-of-the-independent-supreme-court-of-hungary/, DOI: 10.17176/20201013-233456-0.

[40] CDL-AD(2021)036, paras 55-60. The Opinion does not point it out but according to Section 64 (2) of the Status Act, the same rules are applicable regarding judges who are appointed to the Kúria.

[42] Here, it is necessary to mention that in 2018, the European Parliament had triggered the procedure defined in Article 7 (1) of the Treaty on European Union (TEU) touching upon the state of the independence of the judiciary. The proposal, inter alia, highlights – citing the Venice Commission – the excessive powers of the President of the NOJ; the planned administrative court system; citing the case-law of the ECtHR, the lengths of the judicial procedures and the case of the former president of the Supreme Court of Hungary. Report on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)), recitals (12)-(16)

[43] The report cites the decision of the NJC: https://orszagosbiroitanacs.hu/?mdocs-file=1150.

[44] In this regard, as an example, see: C. GYŐRY, ‘Fighting Prison Overcrowding with Penal Populism – First Victim: the Rule of Law: New Hungarian Law “Suspends” the Execution of Final Court Rulings’, VerfBlog, 2020/3/12, https://verfassungsblog.de/fighting-prison-overcrowding-with-penal-populism-first-victim-the-rule-of-law/.

[45] See: Commission Staff Working Document 2020 Rule of Law Report Country Chapter on the rule of law situation in Hungary Accompanying the document Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions 2020 Rule of Law Report The rule of law situation in the European Union, SWD/2020/316 final, pp. 2-9.

[46] According to the amended Section 88 of the Status Act, their service is suspended until they leave their office at the CCoH.

[49] Parallelly, the CCoH has also found the concerned rules to be unconstitutional: Decision 33/2012. (VII. 17.) AB.

[51] The Venice Commission raised its concern over the position of the president of the supreme court already in June 2011, see: CDL-AD(016), para 107.

[52] It has to be noted that the implementation of the judgement has not yet happened. For further information, see: https://helsinki.hu/en/new-submissions-to-the-committee-of-ministers-in-the-baka-v-hungary-case/

[55] See also: C-558/18, C-563/18, Miasto Łowicz ECLI:EU:C:2020:234. For more details about this case and the tensions between the President of the NOJ and the NJC, see: B. BAKÓ, ‘Judges Sitting on the Warsaw-Budapest Express Train: The Independence of Polish and Hungarian Judges Before the CJEU’, European Public Law, vol. 26, n. 3, 2020, pp. 605-612.

[56] See: L.L. FULLER, ‘The Case of the Spelucean Explorers’, Harward Law Review, vol. 62, n. 4, 1949, pp. 616-645.

[57] J. FRANK, ‘Are judges human?’, University of Pennsylvania Law Review, vol. 80, n. 1-2, 1931, pp. 17-53, 233-267.

[58] M. BENCZE, Á. KOVÁCS, ‘Judicial independence and models of court administration’, MTA Law Working Paper 2018/11; I. BIBÓ, ‘Az államhatalmak elválasztása egykor és most’, in I. BIBÓ, Válogatott tanulmányok, 1945-1949, Magvető, Budapest, 1986; Z. FLECK, Jogállam és Igazságszolgáltatás a változó világban, Gondolat, Budapest, 2008. K. HERBERT, A. PATYI, 50. § [A bíróságok feladatai és függetlenségük], in A. JAKAB (ed.), Az Alkotmány kommentárjaII, Budapest, Századvég, 2009. p. 1737. L. RAVASZ, ‘Bírói függetlenség és a tisztességes eljáráshoz való jog’, Debreceni Jogi Műhely, n. 3-4, 2015; A. RÁCZ, ‘Alkotmányos alapelvek és a bírósági szervezet vitakérdései’, Jogtudományi Közlöny, n. 9, 2002, pp. 373-377.

[59] J. LICHTENSTEIN, ‘A bírói függetlenség’, in L. TRÓCSÁNYI, B. SCHANDA, L. CSINK (eds.), Bevezetés az alkotmányjogba, HVG-ORAC, Budapest, 2016, pp. 364-365; E. BODNÁR, Z. POZSÁR-SZENTMIKLÓSY (eds), Alkotmányos tanok I, HVG-ORAC, Budapest, 2018, pp. 183-191.

[60] The paper focuses on the decisions that have been adopted after the Fundamental Law entered into force.

[61] Á. CZINE, ‘Tükörkép a bírói függetlenségről és pártatlanságról az Alkotmánybíróság gyakorlatában’, Alkotmánybíósági Szemle, n. 2, 2018, p. 3.

[62] E. ASBÓTH, P. SOLT, K. GYÖRGYI, Az igazságügyi szervek működése, HVG-ORAC, Budapest, 1997, pp. 31, 39, cited by Á. CZINE, op. cit., p. 3.

[63] Á. FARKAS, E. RÓTH, A büntetőeljárás, CompLex, Budapest, 2007, p. 60., cited by Á. CZINE, op. cit., p. 3.

[72] In Decision 12/2017 (VI. 19.) AB on national security control of judges the CCoH underlined that the process of ensuring the independence of judges began by introducing the guarantee of irremovability of judges in 1869, see: paras 47-48; Also see earlier in Decision 33/2012. (VII. 17.) AB, paras 77-79.

[76] Decision 13/2013. (VI. 17.) AB, para 118.; Decision 33/2017. (XII. 6.) AB, para 76.; Decision 22/2019. (VII. 5.) AB, para 63.

[77] Decision 13/2013. (VI. 17.) AB, paras 117-118. This includes material independence, too: Decicion 12/2017. (VI. 19.) AB (I. 30.) AB, para 51.; Decision 12/2017. (VI. 19.) AB, para 56.

[78] Á. KOVÁCS, ‘Ki védi meg a magyar bíróságok függetlenségét? Személyzeti politika a központi igazgatásban’, MTA Law Working Papers 2019/10.

[81] L. RAVASZ, ‘Bírói függetlenség és a tisztességes eljáráshoz való jog’, Debreceni Jogi Műhely, vol. 12, n. 3-4, pp. 58–85, https://doi.org/10.24169/DJM/2015/3-4/6, p. 61; See also: Decision 34/2013. (XI. 22.) AB, paras 26 and 28.

[82] Á. CZINE, ‘Tükörkép a bírói függetlenségről és pártatlanságról az Alkotmánybíróság gyakorlatában’, Alkotmánybíósági Szemle, n. 2, 2018, p. 5; See also: Decision 34/2013. (XI. 22.) AB, paras 26 and 28.

[85] 32/2013. (XI. 22.) AB határozat, Indokolás [26]; Decision 22/2014. (VII. 15.) AB, para 49.

[88] Decision 7/2013. (III. 1.) AB, para 24.; See also the citations from Decision 12/2017. (VI. 19.) AB above.

[91] According to Section 26 (2) of the ACC: a constitutional complaint procedure may be initiated due to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, rights were violated directly, without a judicial decision, and there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy. For official translation of the ACC, see: https://hunconcourt.hu/act-on-the-cc.

[92] In this decision, the CCoH stressed that guarantees to the organization of the judiciary and to the status of the judges were vital to safeguard judicial independence, and’[the] institutional guarantee of judicial independence and autonomy, which is enshrined in law, is of an unquestionable value as it serves as an important guarantee for human and civil rights and the rule of law.’, see: Decision 3035/2021. (II. 10.) AB, para 29.

[99] Decision 3179/2018. (VI. 8.) AB, para 66; Decision 6/2018. (VI. 27.) AB, para 31; Decision 23/2018. (XII. 28.) AB, para 28; Decision 3088/2019. (IV. 26.) AB, para 26; Decision 16/2019. (V. 14.) AB, para 39; Decision 11/2020. (VI. 3.) AB, para 60; Decision 3328/2020. (VIII. 5.) AB, para 24; Decision 3354/2020. (X. 14.) AB, para 24; Decision 3/2021. (I. 7.) AB, para 58; Decision 12/2021. (IV. 14.) AB, para 23; 29/2021. (XI. 10.) AB, para 27; 5/2022. (IV. 14.) AB, para 64; 3178/2022. (IV. 22.) AB, para 33.

[101] It has to be noted that dissenting opinions attached to this decision reflect these concerns. Nevertheless, the ACC was amended in the end of 2019, making it explicitly possible for state organs to submit constitutional complaints against judicial decisions in which they were parties. This questions one the foundations of constitutionalism, namely: protecting individual libertly against the state. This developement has also been pointed out by the European Commission in its Rule of Law Reports.

[104] E. ORBÁN, ‘A valódi alkotmányjogi panasz tapasztalatai’, Magyar Jog, n. 9, 2016, pp. 584-588; Also see the previusly cited case-law.

[106] Regarding this, see: V.Z. KAZAI, ‘Constitutional Complaint as Orbán’s Tool: Judicial assistance for the reinforcement of the government’s interests’, VerfBlog, 2022/3/01, https://verfassungsblog.de/constitutional-complaint-as-orbans-tool/, DOI: 10.17176/20220302-001101-0.

THE MAIN DIMENSIONS OF CONSTITUTIONAL INTERPRETATION OF JUDICIAL INDEPEDENCE IN HUNGARY

LAS PRINCIPALES DIMENSIONES DE LA INTERPRETACIÓN CONSTITUCIONAL DE LA INDEPENDENCIA JUDICIAL EN HUNGRÍA

László Detre

Academic Advisor, re:constitution
Forum Transregionale Studien

Endre Orbán

Assistant Professor
University of Public Service

SUMARIO

1. Introduction.

2. The legal framework.

3. The European scope.

4. The dimensions of the independence of the judiciary in the case-law of the CCoH.

5. Conclusions.

1. INTRODUCTION.

2. THE LEGAL FRAMEWORK.

3. THE EUROPEAN SCOPE.

4. THE DIMENSIONS OF THE INDEPENDENCE OF THE JUDICIARY IN THE CASE-LAW OF THE CCOH.

5. CONCLUSIONS.

THE MAIN DIMENSIONS OF CONSTITUTIONAL INTERPRETATION OF JUDICIAL INDEPEDENCE IN HUNGARY

LAS PRINCIPALES DIMENSIONES DE LA INTERPRETACIÓN CONSTITUCIONAL DE LA INDEPENDENCIA JUDICIAL EN HUNGRÍA

László Detre

Academic Advisor, re:constitution Forum Transregionale Studien

Endre Orbán

Assistant Professor University of Public Service

SUMARIO

1. Introduction.

2. The legal framework.

3. The European scope.

4. The dimensions of the independence of the judiciary in the case-law of the CCoH.

5. Conclusions.

1. INTRODUCTION.

2. THE LEGAL FRAMEWORK.

3. THE EUROPEAN SCOPE.

4. THE DIMENSIONS OF THE INDEPENDENCE OF THE JUDICIARY IN THE CASE-LAW OF THE CCOH.

5. CONCLUSIONS.

Academic Advisor, re:constitution
Forum Transregionale Studien

Assistant Professor
University of Public Service