On 9 November 2018, on behalf of the Hungarian Government, Minister of Justice László Trócsányi requested the opinion of the Venice Commission regarding the laws on the establishment of the public administration justice system and courts in Hungary. On 4 March 2019, the Venice Commission presented the Minister with its draft opinion, containing several observations and recommendations.
In the spirit of constructive dialogue and in light of the recommendations of the Venice Commission, on 12 March 2019 a draft bill containing amendments supported by the Minister of Justice was put before the Hungarian National Assembly. At their meeting on 15 March 2019, the rapporteurs of the draft opinion welcomed the reactions of the Hungarian Government and modified their opinion, taking account of the clear commitment of the Hungarian Government to respect the essence of the recommendations of the Venice Commission.
In conformity with the observations of the Venice Commission, the draft bill on the amendments outlines further criteria that the Minister shall take into consideration during the appointment procedures of judges and court leaders, introducing a legal remedy allowing candidates to challenge the ministerial decision in front of a disciplinary court. It also reinforces the judicial majority of the Personnel Affairs Council as part of the National Administrative Judicial Council (NAJC) by adding two additional judge members to it. The new bill also prescribes as a requirement for the appointment of the President of the Supreme Administrative Court (SAC President) that the candidate shall have at least five years of judicial experience, and it also clarifies that it is the NAJC that shall decide on any initiative to launch disciplinary action in case a court leader or a member of the NAJC is suspected of a breach of discipline. The amended draft renders optional the invitation of the Minister to the meetings of the NAJC, introduces a legal remedy for administrative courts judges standing before the disciplinary court against the decisions of the SAC President to guarantee an even higher level of judicial independence, and reinforces the judicial majority in the evaluation committee functioning during the transitional period.
The Minister of Justice notes that the opinion of the Venice Commission recognizes that “the principle of creating a new separate legal order within the area of public administration law falls within the sovereign right of the national legislature and is fully in line with European standards and practices”. From the outset, the law guarantees the efficiency and independence of a new public administration justice system in Hungary. With the above-mentioned additions, judicial independence in Hungary has been further reinforced.
Taking into account all these facts and the spirit of cooperation in which the dialogue between the Venice Commission and the Ministry of Justice took place – also emphasized by the opinion of the Venice Commission and characteristic of their 15 March meeting – it is regretful that the content and tone of the press release of the Venice Commission published on the website of the Council of Europe after this meeting did not reflect this spirit of cooperation but suggested – to the contrary – that the Venice Commission fears that “there are no effective checks and balances” in the laws regarding public administration courts.
It is to be welcomed that the Venice Commission later – at least in part – modified its press release by adding that “If the draft amendments were to be adopted, then some of the criticism of the commission would lose their object.” Nonetheless, the tone of the press release still gives grounds for confusion regarding the reality of events. The Minister of Justice contacted Council of Europe Secretary General Thorbjørn Jagland to ask for his support so that public opinion may receive all objective and balanced information regarding the opinion of the Venice Commission.
(MTI)
