9th Dec 2023

Right to fair trial risks being undermined in Hungary

  • Budapest - criticised by both the Council of Europe and the European Commission (Photo: Alex)

Hungary's reform of its judiciary system has been thoroughly criticised by the Council of Europe, with aspects of its damning assessment likely to fuel an ongoing quarrel between the European Commission and Budapest on the same issue.

A report for the continent's human rights watchdog suggests that Hungary's judiciary reforms - part of a series of laws propping up a controversial new constitution that came into force at the beginning of the year - "contradict European standards for the organisation of the judiciary" and could also undermine "the right to a fair trial."

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Its 31 pages point to a gradually waning of the independence of the judiciary through the concentration of power into too few hands, the lack of democratic oversight, and rise of self-interest as people within the corrupting system seek to protect their own jobs.

Most of the problems stem from the "overwhelmingly strong" president of the National Judicial Office. The person, once elected by a two-thirds majority in parliament, holds office for nine years.

The length of the mandate, the report notes, is problematic because of the lack of oversight on the president and the extent of the office's powers - from drawing up rules for courts, to deciding on posts and transfers for judges, and initiating legislation concerning courts.

In all the report - drawn up by a body advising the Council of Europe on constitutional issues - lists 65 competences for the judicial president.

There is little oversight of the judicial president's office. The person is required to report their activities every six months. But there are no criteria on how detailed the account need be while the body to which the president is meant to report to - the National Judicial Council - is in itself beholden to the president.

Meanwhile, it is difficult to remove the person from office before time - requiring two thirds of MPs for any ousting from office - while the nine-year post can simply be extended if the same majority is not found for a different candidate.

The report also notes that due to a moratorium on appointing judges in the second half of last year and forced early retirement of judges, ostensibly to clean up the old system, there will be a "numerous" court president vacancies.

These will be filled by the "new procedure" under which the judiciary president is given "excessive weight" in appointment procedure.

The report also queries how court cases are allocated; the internal independence of the entire judiciary system and how judges are evaluated.

Brussels quarrel

The report is not binding. But it is feeds into the already very political storm about Hungary's constitution and amending laws that go with it.

The European Commission has already initiated legal steps against Budapest over concerns about the independence of the central bank and data protection agency as well as forced early retirement of judges.

The retirement issue is also taken up in the Council of Europe report. It notes that "a whole generation of judges, who were doing their jobs without obvious shortcomings, have to retire" and questions the "effect on judicial independence."

Thomas Markert, a German lawyer and one of the report's authors, will brief commission officials on its contents on Wednesday.

So far, Hungarian Prime Minister Viktor Orban has refused to give into critics. His ministers have sought to justify the laws to Brussels, but the commission has dismissed the explanations as unsatisfactory.

Last week Orban escalated tensions by comparing the European Union to the Soviet Union in a speech to his right-wing supporters.

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