Parliament passed new laws on the organization of the courts and the public prosecution, as well as the legal status of judges and public prosecutors, on 28 November. The Justice Ministry, which submitted the bills, described the legislative package as a reform, although it is nothing of the sort. That is not solely because a reform should be preceded by broad-based professional debate and thorough preparations (which of course did not happen and in fact it is even rumoured that the public prosecutors themselves wrote the law on the prosecution service). More important is the fact that these laws damage, rather than improve the operation of these institutions. Hungarian constitutional democracy has once again become the victim of overhasty and unsound legislation.
Particular attention and professional preparations would certainly have been called for. The judiciary and the public prosecution are crucial institutions for the healthy functioning of a constitutional democracy, and the way in which they are regulated influences the nature of the public law structure in a fundamental way. The provision and strengthening of institutional guarantees could have ensured their independent, professional and effective working. Instead, with the new cardinal laws, the government administration and the parliamentary majority are continuing to dismantle the constitutional checks and balance: these institutions have also been subordinated to their thirst for power.
With regard to the courts, the self-administration model, although there were good reasons for it at the time of its introduction in 1997, has by now become dysfunctional: the National Council of Justice (OIT) dominated by country judges proved unable to supervise the county courts effectively. The most important innovation of the new law on the courts is also related to the administrative system. However, the new law takes the edge off such criticisms of the self-administration model, when it places the powers of the OIT in the hands of one individual, the president of the National Judicial Office (OBH), authorising him to make all administrative (personnel and financial management) decisions. If we add the fact that the president of the OBH is elected for nine years, which means that he can direct the courts unchecked during his tenure stretching over two parliamentary terms (or for even longer if it does not prove possible to elect a new president), then it becomes clear that the intention of the legislator was not to resolve the administrative anomalies, but rather that of centralisation and the extension of government influence to the courts, which until now could still be regarded as independent.
The earlier rule lowering the retirement age for judges from 70 to 62, as a result of which several hundred experienced judges will be pensioned off during the next year, was already an indication of the tendency to centralise and obtain influence. The Constitution amendment, aimed at relieving the president of the Supreme Court of his position, is of a similar nature: the sanctimonious justification given is that it will ensure continuity of functioning, although the only problem with the current chief judge is that he was too critical of the government.
Less open to public
Returning to the courts, by virtue of the principle of independence, the most effective check on the judiciary is ensuring that its operation is public. From a professional point of view, that means the real public nature of hearings, and from an administrative point of view the transparency of administrative decisions. While in recent years the OIT has taken steps towards making the work of the courts more public, the new law enables the public to know even less about the functioning of the courts and the decisions of their leaders than to date. The new law, rather than increasing the transparency of the judiciary, which has a tendency to be inward-looking, is a step backwards.
Backlogs not addressed
Regrettably the laws debated and passed at breakneck speed do not even remedy the problem of the continual increase in the case backlog at some of the oversized courts. Although experiences to date have shown that increasing the number of judges is not an effective way of treating the problem, the legislator did not take on board the professional proposal voiced by many that the courts with a large staff and extended jurisdiction should be broken down into smaller organisational units that can be managed more effectively. The restructuring of the organisational system consists of no more than the renaming of the various levels of the courts.
Prosecution too powerful
There is even less cause to speak of reform in the case of the prosecution service. Regrettably, in the period that has passed since the change of regime, Hungary has not yet managed to restructure the prosecution organisation, which was built according to the Soviet model. The current laws, instead of remedying the problem and making a radical structure change, worsen the existing troubles. The new law retains the model that the public prosecutor is not only the representative of the prosecution in criminal proceedings, but also has broad powers of legal supervision with respect to organisations exercising executive power, as well as to business organisations and civil organisations. With regard to that dual task, the legislator refers to the seeming independence of the public prosecution from the government administration. 9 years, less accountability However, the new law reduces the institutional control of the public prosecution (the possibilities to challenge prosecution decisions have been limited), and the powers of the public prosecutor general are widened. The chief public prosecutor is elected by Parliament, but cannot be relieved of his position for nine years (or even longer). (That rule was introduced post haste by the parliamentary majority a year ago, ahead of the election of the current public prosecutor general.) He is not politically accountable, while having broad powers of instruction in directing the manifold tasks of the hierarchical prosecution organisation. The organisation, which is strictly under the control of one individual, remains and is now even more vulnerable to the risk that it has to bend to the political bias of its leader. The role played by the prosecution service in some criminal cases was too great even up to this point, since it was in command of bringing and lifting charges almost without limits. From now on, however, the public prosecutor general also has the power to decide in criminal cases of special importance which court should hear the charges. At the same time, the government administration is also making efforts to curtail the rights of defence lawyers.
Unlimited power to pry
Another indication of the concentration of power is the fact that in terms of data handling, data protection safeguards barely limit the public prosecutor. The public prosecutor general may decide by instruction about which personal data may be kept on record, oblige anyone to supply data, and may even look into the court files without limits. The icing on the cake is that the prosecutor general may rewrite the rules on jurisdiction, likewise by instruction, and many even establish a new prosecution body. To perform its task of protecting the public interest and legality supervision, the legislator virtually gives the prosecution service free rein to inspect any organisation, including in the interests of its own legal functioning. The public prosecutor general may freely curtail the powers of other state bodies, while in respect of the exercise of rights to bring private law actions, the criteria for the decision have not been precisely established. Although the Constitutional Court established in 1994 that the public prosecutor's general right to bring actions is contrary to the private autonomy of the parties, the new law authorises the public prosecutor to bring actions in a much wider sphere of cases than would be justifiable, although not with general character.
With regard to the rule of law, the legislative package does more damage than it does good. The government evidently wishes to continue using the prosecution service as its own political weapon. It wishes to influence the autonomy of the courts in the same way as that of the public prosecution: by placing its own people in the positions of control. The legislator has destroyed, rather than reformed.
The author is the Head of Political Freedoms Program Hungarian Civil Liberties Union (TASZ)
The original article was published in The Budapest Times, vol. 9., no. 50., page 4.