In March 2012 the Venice Commission issued an opinion regarding the new Hungarian cardinal laws on the court system and the judiciary, stating that “the reform as a whole threatens the independence of the judiciary”. The Hungarian Government has initiated an amendment of the two cardinal laws in question, apparently as a result of the Venice Commission’s opinion. However, the proposed amendments do not eliminate the conceptional problems of the new regulation.
Three Hungarian NGOs, the Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Eötvös Károly Institute have analysed the proposed amendments and that as to what extent do they solve the concerns raised by the Council of Europe’s advisory body. In the view of the NGOs, the response of the Hungarian Government is not comforting at all. The Bill submitted by the Government reacts only partially to the detailed criticism as set out by the opinion of the Venice Commission; thus, many suggestions of the Venice Commission remain without any legislative response. For example even though the amendments require the National Judicial Council (NJC) to approve any decision of the President of the National Judicial Office (NJO) to deviate from the ranking of candidates to judicial positions, the President of the NJO could, under the new rules, declare the given call for applications unsuccessful, which renders the NJC’s disapproval moot. Furthermore, under the proposed rules, the President of the NJO will be able to transfer cases or judges to another court without any control also in the future.
The Government handles the opinion of the Venice Commission as if it would only question the adequacy of certain legal provisions. However, the opinion of the Venice Commission points out conceptional problems regarding the new system, which cannot be eliminated by correcting a few obvious failures of the cardinal laws, and disregarding certain parts of the criticism is not a solution either. Mosaic-like changes are not capable of handling systemic problems.
In their analysis, the three NGOs stress that if the Hungarian Government does not fully comply with the requirements set out by the Venice Commission, there may be unpredictable consequences. Any display of force by governments aimed at the judicial branch – even if it does not affect the adjudicating activities of judges directly – creates an environment in which both judges and the parties seeking justice before courts may rightfully assume that judges are under political pressure. This may shake the trust of the general public in the independence of the judiciary and the impartiality of judicial procedures. However, sacrificing the independence of the judiciary and the public’s trust in it may not be justified by any decent political goal.
The detailed analysis of the NGOs is available here.