Hungary

Since 2023, the limited powers of the National Judicial Council (NJC) and its inability to effectively supervise and counterbalance the powers of the president of the National Office of the Judiciary (NoJ), a political appointee with extensive powers regarding judicial careers, have been a major concern. The goal of May 2023 legislative changes was to establish legal and budgetary autonomy for the National Council of Judiciary, a condition for the unlocking of EU funds. In its 2023 Rule of Law Report, the European Commission concluded, in light of recent reforms, that a strengthened role for the NJC would allow it to counterbalance the powers of the president of the NOJ as regards judicial careers. Civil society organisations have questioned the effectiveness of these changes in terms of securing judicial independence, however, and have highlighted the deficiencies.

The new law allows for the NJC to give a binding opinion on the regulation laying down the point system for the evaluation of applications for judicial posts, as well as on a series of individual decisions of the NoJ president. Such decisions include the annulment of appointment procedures for judicial and court executive positions where there is at least one eligible candidate who has been supported by the judges of the given court; the transfer of judges, including secondments to other courts; and the removal of judges without their consent from the pool of judges that hear special cases, including administrative cases. A binding opinion of the NJC is also introduced as regards the suitability of candidates for the posts of president and vice-president of the NOJ, who can be proposed by the president of the republic and the president of the NOJ, respectively.

The Hungarian Helsinki Committee has pointed out that, while the new legislation allows the NJC to issue a binding opinion on a future draft ministerial decree regulating the points system (for the appointment of judges), it does not set a deadline for the submission of a new draft decree by the minister. This means that the current ministerial decree, adopted in 2017 without meaningful consultation with the judiciary, can remain in force without any amendments indefinitely. This is subject of concern because the mentioned decree radically modified the points system in a way that gives preference to candidates with experience in public administration over candidates with experience in the judiciary. The bottom line is that the change in the powers of the NJC has been rendered meaningless as a result.

The EU has demanded that the NJC be endowed with legal capacity and autonomy in the disbursement of its budget, and that it is provided with adequate resources to carry out its tasks effectively. The Judicial reform established a transitional period of nine months, which will lapse at the end of March 2024, for the establishment of a separate legal and budgetary entity of the NJC. Only then can there be an assessment of whether the reform was successful in establishing the NJC as a fully independent legal and budgetary entity. In the meantime, the NJC is still partly dependent on the NOJ, as it cannot acquire assets on its own.

While there was no incentive to capture an otherwise weak NJC, reinforcement of its position increases the risk of capture. The Hungarian Helsinki Committee has reported external and internal pressures exerted on the process of electing members of the NJC for the next six-year term. Examples include public statements by the minister aimed at discrediting current members of the NJC, and dissuading them from running for the elections. There have also been reports about the violation of the secrecy of the voting process.

In its Recovery and Resilience Plan, Hungary committed to amending the rules on the election of the Kúria (supreme court) president, the rules on the case allocation scheme of the Kúria, and the rules on the functioning of the Kúria, to:

•  Establish stronger powers for the judicial council of the Kúria and the departments of judges (‘kollégium’) concerned.
• Remove the possibility for members of the Constitutional Court to become judges and then be appointed to the Kúria without following the normal application procedure.
• Ensure that the NJC gives a binding opinion on the suitability of candidates for the posts of president and vice-president of the Kúria. The reform also promised to strengthen the powers of the NJC in relation to the Kúria president when acting as appointing authority.

These reforms addressed long-standing concerns regarding the Kúria. However, civil society organisations still have concerns. While the May 2023 reform excluded the re-election of the Kúria president, the legislation kept in effect the rule that allows a one-third parliamentary minority to keep the Kúria president in office without a time limit, by stipulating that the Kúria president remains in office until their successor is elected by the parliament (with a two-thirds majority).

In its Recovery and Resilience Plan, Hungary committed to amend the rules on the case-allocation scheme of the Kúria, minimising human intervention. The reform also envisaged giving the judicial council of the Kúria and the departments of judges (‘kollégium’) concerned the power to give a binding opinion on the case-allocation scheme.

The Hungarian Helsinki Committee warned against the approval of the system without verifying its implementation. Their analysis of the case-allocation scheme of the Kúria shows that not even its updated version establishes a pure, fixed, and automatable allocation order. The abundance of exceptional rules built into the case-allocation scheme narrows the application of the special rules restricting the possibility of deviating from the case-allocation scheme, while leaving wide margins for manipulating the assignment of cases. The Hungarian Helsinki Committee stressed that the non-implementation of new rules of case allocation allow manipulation of the composition of adjudicating chambers at the Kúria. This is especially concerning due to the upcoming European Parliamentary and municipal elections in 2024, with respect to which the Kúria holds exclusive powers to adjudicate.

In its 23 November 2021 judgment C-564/19, the CJEU ruled that that EU law precludes a national supreme court from declaring a request for a preliminary ruling unlawful on the grounds that the questions referred are not relevant and necessary for the resolution of the dispute in the main proceedings. The CJEU also found that EU law precludes disciplinary proceedings from being brought against a national judge on the grounds that the judge has made a preliminary reference.

To receive funds from the EU Recovery and Resilience Facility, Hungary was to remove obstacles to the use of its preliminary reference procedure, in line with the CJEU judgment. A May 2023 analysis by the Hungarian Helsinki Committee, Amnesty International Hungary, and the Eötvös Károly Institute suggests that the proposed change to the Code of Criminal Procedure, precluding the prosecutor from challenging judicial requests for preliminary rulings from the CJEU, while necessary, is not sufficient to execute the CJEU judgment. The proposed amendments are of a strictly procedural nature, and are limited to criminal procedures. They would close the procedural path by which the prosecutor general can challenge lower courts’ requests for preliminary rulings. This formal modification would not, however, affect the legal force of the decision of the Kúria subject to the CJEU judgment C-564/19, as the Kúria’s decision covers all types of proceedings – not just criminal, but also civil and administrative – and creates a material obstacle for judges seeking preliminary rulings from the CJEU. Proper execution of the CJEU ruling requires the negation of the binding legal effect of the mentioned decision.

As reiterated in a more recent assessment by the Hungarian Helsinki Committee, while judicial reform fully abolished the procedural obstacles to making a preliminary reference, it failed to address the effects of the binding precedential decision by the Kúria, the content of which was found contrary to EU law by the CJEU. Even after the CJEU delivered its judgment, the Kúria upheld its position taken in the precedential decision, according to which referring a question to the CJEU is unlawful if the question referred is not relevant to and necessary for the resolution of the dispute concerned. Instead of terminating the precedential effect of the decision, the modification introduced by the judicial reform expressly confirmed the interpretation provided by it, ensuring that its legal force remains. This is bound to have a chilling effect on judges, especially those appointed for a three-year probationary period.

The European Commission has expressed concern that smear campaigns continue to exert undue pressure on judges, affecting their freedom of expression. These campaigns have often been directed at judge members of the NJC, and aimed at undermining its legitimacy. Attacks and accusations continue notwithstanding the findings of the European Court of Human Rights in the Baka case, which remain unimplemented. The Committee of Ministers called on Hungarian authorities to implement the judgment, reiterating the fundamental importance of safeguards against abuse when it comes to restricting judges’ freedom of expression. In the mentioned case, the Court found that the termination of the applicant’s mandate had been prompted by the views and criticisms expressed by the applicant on issues of public interest, particularly planned major reform of the judicial system. The Court found that the measures had a chilling effect, discouraging not only the applicant, but also other judges and court presidents from participating in public debate on issues concerning judicial independence.