As a result of the government’s steps, the independence and the autonomy of the judiciary are also at risk. Newly adopted laws re-regulated the judicial administration and established the National Judicial Office (NJO) for the administration of law courts. This re-regulation served also as a ground for the early termination of the mandate of the then-President of the Supreme Court. In its decision on this matter issued in May 2014 the European Court of Human Rights found that the premature termination of the President’s mandate had violated the right of access to a tribunal because it could not be challenged.
The President of the NJO now exercises extensive powers over the court system, which used to include the right to distribute caseload and apportion cases to different courts upon its own decision. The Venice Commission found that the transferring of individual cases, as the law failed to exclude that this might be based on arbitrary or politically motivated considerations, was a positive violation of the right to a lawful judgement and thus clearly contradicted the fair trial principle. The Hungarian Constitutional Court also ruled that these legal provisions were unconstitutional. The possibility of transferring cases was abolished in 2013.
The President of the NJO plays also a decisive role in the appointment of judges, even though the consent of the National Judicial Council, a self-governing body of elected judges, is also required to appoint a judge. However, the President of the NJO may cancel the application procedure and call for a new one.
Parallel to the redesigning of the judicial administration, the Fundamental Law lowered the mandatory retirement age of judges from 70 to 62 years. This provision made it possible for the government to replace almost the entire leadership of the judiciary in 2012, as a significant number of senior judges and members of law court’s leadership were dismissed. The Court of Justice of the European Union delivered a judgment on the matter, concluding that Hungary has failed to fulfil its obligations under Council Directive 2000/78/EC.
It should be noted that law courts’ performance has so far not reflected these institutional changes and bottlenecks. According to the World Economic Forum (WEF), a reputed international think tank to assess competitiveness including institutional factors in line with other relevant academic assessments and also TI Hungary’s opinion, law courts have preserved their independence to a significant extent, or, at least, no systemic evidence has been found which would indicate any judicial bias in favour of the governing Fidesz party. Nevertheless, the government’s changes put at risk the independence and the autonomy of the judiciary.
Besides law courts, the impartiality and the autonomy of the prosecution service are also at high risk in Hungary. The prosecution service is not part of the executive branch of the country’s government, but is an autonomous institution, which forms part of the judicial administration. The prosecution service is headed by the Prosecutor General (PG), who is elected for nine years by a two-thirds majority vote of the Parliament. The PG exercises a great deal of influence over the prosecution service and individual prosecutors. The PG may instruct prosecutors, and reserves the right to take over any case from any prosecutor or to reassign cases to other prosecutors at any stage of the procedure without giving any reason. This very wide and unchecked discretion to reassign cases and to instruct subordinate prosecutors puts the right to fair procedure at risk. Moreover, there is no independent forum where a decision by the prosecutor not to bring a case to court can be challenged. This means that decisions regarding appeals against dismissals or the termination of an investigation remain within the prosecution service. The possibility that the PG may unaccountably prevent law courts from adjudicating criminal cases by omitting to bring charges places the right to a fair and public hearing by a competent, independent and impartial tribunal established by law into doubt.
The PG has also the discretion to hire and fire, promote and demote, discipline and transfer any prosecutor in the system. Besides, prosecutors are obliged by law to fully adhere to the line of command headed by the PG. As a result, the PG’s will may easily outweigh any other consideration. Moreover, no one has legal powers to instruct the PG, and, in practice, there are no legal tools to unseat the PG, unless she or he is found guilty of a felony. Should the mandate of the PG expire and the Parliament is unable to elect a replacement, the acting PG exercises his or her powers until the beginning of the mandate of a successor. As a one-third plus one group of members of Parliament can vote to positively block such an election, this provision means in practice that the acting PG can be kept in office indefinitely.
The Venice Commission has expressed concerns about “the high level of independence of the PG, which is reinforced by his or her strong hierarchical control over other prosecutors”, and stated the need to establish a “sufficient system of checks and balances” within the system. The Group of States against corruption (GRECO) of the Council of Europe concluded that the law “increase[s] considerably the political influence in respect of the election” of the PG and therefore recommends inter alia that the “possibility to maintain the PG in office after the expiry of his/her mandate by a minority blocking of the election in Parliament of a successor be reviewed by the Hungarian authorities.” GRECO also asserted that the decisions on the removal of cases “ought to be guided by strict criteria and be justified in writing in order to avoid arbitrary decisions”.