EAJ Working Group on the Situation of Member Associations


Progress Report (April to September 2019)

At the Copenhagen meeting on May 9th 2019 the Working Group drafted a resolution text on Poland. Moreover, the Working Group was mandated with a fact-finding mission and an assessment - procedure on the situation of the judiciary in Hungary.

2 The EAJ Resolution of 10th May 2019 on Poland

The EAJ WG drafted the following text: “The European Association of Judges considered the provisions of the Act passed by the legislature of the Republic of Poland on 26 April 2019 amending the Act on the National Council of the Judiciary and the Act on the System of Administrative Courts.

The EAJ noted with concern that the Act of 26 April 2019 removes the right to bring proceedings challenging the appointment of a person to judicial office in the case of appointments to the Supreme Court. This removal from scrutiny of the appointment of persons as members of the Supreme Court constitutes an exception to the legal provisions governing the appointment of judges in Poland.

It facilitates the appointment to the Supreme Court on political or other irrelevant grounds of persons lacking the qualifications and attributes which would be required for appointment on merit alone. It thereby threatens the independence of the Supreme Court and in turn the independence of the lower courts. It thus undermines the rule of law.

The EAJ followed the many recent steps to change the legislation regarding the judiciary in Poland with great concern, including:

• The reduction of the retirement age for sitting judges.
• The change in the way in which judicial members of the National Council of the

Judiciary are elected.
• The creation of two new chambers of the Supreme Court, with a decisive influence of

the executive power on the appointment of its members.• The regulation of disciplinary powers and their misuse.• The newly created power to reopen decided cases.

The EAJ observed further that the Act of 26 April 2019 was adopted when the conformity with European Union law of earlier alterations to the legal provisions governing the Supreme Court, the National Council of the Judiciary, and the judiciary in the lower courts is being considered by the Court of Justice of the European Union in proceedings pending before it.


The EAJ considers that, far from bringing the provisions on the organisation of the judiciary in Poland into line with the requirements of European Union law, the Act of 26 April 2019 constitutes a further departure from those standards.

Moreover, in addition to abolishing any right to seek judicial review of appointments to the Supreme Court, the Act of 26 April 2019 also terminates with immediate effect all cases in which that right of challenge by judicial review is currently being exercised. Such interference by the legislature in ongoing judicial proceedings constitutes a serious interference with the independence of the judiciary and is inconsistent with any proper regard for the rule of law.

The EAJ calls upon the executive and legislative authorities of the Republic of Poland to recognise the incompatibility of those provisions with international and European Union standards and take all appropriate measures to remove that incompatibility.

The EAJ goes on in observing the very serious situation in both Hungary and Poland.”

The draft of the WG was adopted as a resolution on Poland by the general assembly of the EAJ in Copenhagen on May 10th 2019.

3 Fact-finding Mission to Hungary

On request of the Association of Hungarian Judges (Magyar Bírói Egyesület – MABIE) and of the National Judicial Council of the Hungarian Judiciary (Országos Bírósági Tanacs -OBT)1the EAJ Working Group on the Situation of Member Associations was commissioned by theEAJ Assembly in Marrakech in 2018, to carry out a “fact finding mission” with the HungarianJudiciary in Budapest. A committee was appointed. The EAJ- committee consisted of

  • the President of the EAJ-Working Group On the Situation of Member Associations, Judge Stephan Gass,
  • the Member of the EAJ-WG and Honorary President of the IAJ, Judge Gerhard Reissner,
  • the Honorary President of the IAJ, Judge Günter Woratsch,
  • and Judge Etelka Halász, judge at the Budapest Court of Appeal and Hungarian delegateto the EAJ.
    The mission to Budapest was accomplished from April 24th to 26th 2019.3.1 Mandate of the MissionThe Association of Hungarian Judges asked the EAJ to conduct an investigation into the following points:
  1. The ineffectiveness and consequences of the interim election of missing members of the National Judicial Council (NJC), lack in collaboration between the National Office for the Judiciary (NOJ) and the National Judicial Council (NJC).
  2. The practice of appointing judges and court leaders under the authority of the President of the National Judicial Office.

1 See the letters of the President of the National Judicial Council of the Hungarian Judiciary (NJC/OBT), Sándor Szabó, of 12-11-2018, and of the Association of Hungarian Judges (Magyar Bírói Egyesület – MABIE), Ms JuditZso’fia Oltai, of 9-2-2019 (Appendix I.)

3. Observance and safeguarding of rights of participation in regard to groups of representatives, the Association of Hungarian Judges (MABIE) in particular.2

The delegation met with representatives of The National Judicial Council (NJC), the National Office for the Judiciary (NOJ)3, the Curia (Supreme Court of Hungary, the Ministry of Justice, the Hungarian Bar Association, the Association of Hungarian Judges (MABIE), various judges of different regions of the country. The committee drafted a report which was adopted by the general assembly of the EAJ in Copenhagen.4

3.2 The main actual Problems examined in the Hungarian judiciary
a) The National Judicial Council (NJC) and the National Judicial Office (NJO)

Hungary’s political situation has significantly changed in 2010 due to the Alliance of YoungDemocrats (Fidesz) winning two thirds of the seats in Parliament. Not only did they reshape to their own benefit the Constitution, the election law and basically all legislations adoptable by a two-thirds majority, which used to guarantee the existence of checks and balances, but they even appointed such persons to head the three branches of power, not least the prosecution, who are unconditional supporters of Fidesz and the Prime Minister. This clearly harmed democracy in Hungary, as it was established by the relevant report of the Council of Europe’s Venice Commission. The only area where Fidesz has been unable to fully exert its influence is the judiciary. But this is going to be changed more and more. 5

Section 65 of Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary provides that the President of the National Judicial Office (NJO) shall fulfil the central duties of court administration and shall supervise the administrative activities of the presidents of regional courts of appeal and tribunals. Adoptable with a two-thirds parliamentary majority, this legislation has granted unprecedented power to the NJO President, who is supervised by the elected National Judicial Council (NJC), as laid down in Paragraph (1) of Section 103 of the aforementioned law.

The NJC established that the NJO President’s practice conducted in the years of 2016 and 2017regarding the evaluation of applications for leadership positions was unlawful, which allowsfor the statement that the only body entitled to supervise the NJO President’s practice ofappointment into positions established it to be arbitrary and in violation of the law.

The NJC requested an explanation of the established discrepancies and called upon the NJO President to observe the legal order in the future. In response, the president made the NJC members under her influence resign, thus attempting to make the body criticizing her dysfunctional. The president of the NJO claimed that due to the resignations, the composition of the NJC no longer complied with the legal requirements, therefore it lost its legitimacy. In a

2 National Office for the Judiciary (NOJ), in Hungarian: Országos Bírósági Hivatal Elnöke (OBH); National Judicial Council (NJC); in Hungarian: Országos Bírói Tanács (OBT). In 2012 a new self-government system was established which divided the powers formerly belonging to NCJ between two newly established judicial organs: the NOJ and the (new) NJC (see appendix II).

3 See invitation letter of the president of the Hungarian National Office for the Judiciary (OBH), Ms Tünde Handó, of April 2019.
4 See appendix.
5 See The EAJ Working Group on the Situation in Member Associations; Sub-Committee “Mission to Hungary”Basel, Wien, Budapest, May 3rd2019, Stephan Gass, Gerhard Reissner, Günter Woratsch ( cf. annex I).

broadcast of the Hungarian public television, the NJO President went as far as to call traitors the judges who had turned to an international organization to point out her unlawful practice.

Since May 2018 the Hungarian Judiciary is facing a more and more grievous situation whichin some aspects comes close to a “constitutional crisis” due to the activity of the President ofthe NJO who denies any collaboration with the National Judicial Council. Thus, the two bodies of judicial self-government, the National Office of the Judiciary (NJO) and the National Judicial Council (NJC) cannot work together any longer which leads to a blockade, and thus to the impossibility of the NJC to perceive its supervisory tasks.

The competences of the NJO, which are vested in one person,6 the president, are much too large, almost comprehensive (as already the GRECO – Report of 2015 has ascertained). On the other hand, the jurisdiction of the NJC is too restricted almost non-existent and can easily be neutralised.

It is inadmissible that the organ which should be controlled (the NOJ) can declare thecontrolling organ (the NJC) “illegitimate” and refuses the collaboration, provided by law, withthis organ. Thus, neutralising the controlling body. It is furthermore problematic when the procedure for bye-elections to the controlling body (the NJC) can only be tackled by the body to be supervised.

The jurisdiction of the NJO relating the appointment and promotion of judges and the secondment of judges from one court to another is particularly problematic under the aspect of judicial independence. If the composition of the NCJ indeed needs additional members a bye- election must be organized as quickly as possible and the procedure should be initiated by either the NOJ or the NJC.

Relating to the appointment and promotion of judges, The GRECO – Report of 2015 (Group of States against Corruption/Councils of Europe Anti-Corruption Body) recommended anamendment of the NOJ’s President widespread powers in order to establish more competences of the NJC on this field (p. 28 of that report). The EAJ supports this proposal.

b) The new administrative court system

In June 2018 the Hungarian Constitution was amended and a separate administrative courts system was introduced. Administrative jurisdiction so far was integrated in the system of ordinary courts with the Supreme Court (Curia) as highest instance. The constitutional amendments established a Supreme Administrative Court, with a president appointed by the Parliament with 2/3 majority for a period of nine years. The Minister of Justices is entrusted with all the tasks, which in the system of civil and criminal courts are within the jurisdiction of the President of the National Judicial Office. The jurisdiction of the two branches of jurisdiction is very vaguely formulated and leaves some space of interpretation for legislation. The new system is scheduled start to operate on January 1st2020.

Following these constitutional amendments of December 12th 2018, the parliament adopted a Law on Administrative Courts which establishes a two-level court system composed of the Supreme Administrative Court and first instance Administrative Courts in the regions, and a

6The Government’s Fidesz Party used their two-thirds majority to appoint the wife of a leading Fidesz politician as the President of the NJO. In the meantime, they forced the elder generation of judges into retirement, presumably to allow them to be replaced by such leaders through whom they will be able to exert influence on the active judges as well

law, which contains transitional provisions among others regarding the selection and appointment of the first judges of the new courts. Judges who already work in the field of administrative law will be transferred, if they apply for it, others would have to have the same requirements of experiences as all future judges. The law also establishes a National Administrative Judicial Council which has a purely advisory role.

The few possibilities, in which in the ordinary courts system the National Judicial Council has the right to veto the decision of the President of the NOJ or in which the latter needs the consent of the NJC do not apply on the relation between the minister and the National Administrative Council. This is especially relevant in appointment procedures, when the minister deviates from the ranking of candidates. The legal regulations, when the minster can declare an appointment procedure as unsuccessful are even more un-precise than the corresponding regulations which apply for the President of the NJO.

The Venice Commission was asked by the Minister of Justice to deliver an opinion on the draft law, nevertheless the law passed the parliament before the Venice Commission forwarded its opinion. The Opinion criticized several points of the meanwhile adopted laws.

Central points, which were stressed by the EAJ mission report, are the powers of the minister of Justice as to the appointment but also as to the transfer of judges and court presidents without effective counterbalance of control or remedy. Few days before the Venice Commissions Opinion was published on basis of its draft the Hungarian Parliament passed Law 5241, which introduced some amendments, e.g. regarding the composition of the National Administrative Judicial Council. But core points of the problems especially as regards the regulations of appointment, transfer and the selection criteria for the President of the Supreme Administrative Court remained unchanged.

It is a long-lasting idea fostered by academics and many judges to separate the administrative court system from the civil and criminal court system. There should be clear regulations, on the constitutional level which cases should belong to which branch, otherwise there is the danger of arbitrary shift of tasks.

The EAJ report recommended that administration of courts should be in the hand of the minister of Justice only when there is a long and strong tradition and when nevertheless the balance of powers of the state as essential element of the rule of law is guaranteed (Venice Commission et al.). Without evaluating if this is the case in Hungary it is in any case obvious, that to guarantee the functioning of the balance of powers, additional amendments of the law regarding the appointment of judges and presidents, criteria for the President of the Supreme Administrative Court, and enlargement of the powers of the National Administrative Judicial Council are necessary.

4 Requests

There are no requests by member organizations up to now.

5 Draft ECHR-Protocol on Judicial Independence / Convention on Judicial Independence

As explained at the last meetings in Marrakech and Copenhagen there is hardly any chance to get the Council of Europe adopt a protocol to the ECHR (see the last report of the EAJ-WG-Chair and the EAJ minutes of Berlin). However, it still seems to be possible to go ahead with a European Convention based on recommendation 12/2010. The EAJ could choose the way the Council of Bars and Law Societies of Europe had taken. For this it is important to get the support of the Parliamentary Assembly of the Council of Europe (PACE). The chairman of the WG exhorted the EAJ- delegates having relationships with a Parliamentarian to get involved in the project (cf. the last report of EAJ-WG-Chair). He also made the following proposal to the assembly:

1. Identify and find one or more members of the PACE who will table a motion for a recommendation: national PACE member, with preference one who is a member of the 87-member Committee on Legal Affairs and Human Rights of PACE, see: http://www.assembly.coe.int/nw/xml/AssemblyList/AL- XML2HTML-en.asp?XmlID=Committee-Jur&lang=en&pPage=0&pagesize=15

2. File a draft for the motion (no more than 300 w)7
3. The text would be handed over to the PACE “motioners”
4. The Committee on Legal Affairs and Human Rights appointed will then appoint a rapporteur whowill present his/her report to the PACE...
5. If PACE will adopt the motion it will pronounce a corresponding recommendation to the Committee of Ministers examine the case (internal rapporteur etc.) and, hopefully, work out a Convention.

Up to now, the WG has still got no feedback or information from member associations. Therefore, the WG will re- launch the procedure at the Nur-Sultan meeting.

Basel/Liestal (Switzerland), 02nd October 2019 Stephan Gass,

Chair, EAJ- Working Group On the Situation of member associations

Appendix: Partial Report of the EAJ mission to Hungary in April 2019 Report on the fact-finding mission of the EAJ to Hungary
1. Request, Constitution of the Task Force, Performance

On request of the Association of Hungarian Judges (Magyar Bírói Egyesület – MABIE) and of the National Judicial Council of the Hungarian Judiciary (Országos Bírósági Tanacs -OBT)8 the EAJ Working Group on the Situation of Member Associations was commissioned by the EAJ Assembly in Marrakech in 2018, to carry out a“fact finding mission” with the Hungarian Judiciary in Budapest. A committee was appointed. The EAJ- committee(hereinafter referred to as “the Committee”) consisted of

• the President of the EAJ-Working Group On the Situation of Member Associations, Judge Stephan Gass,

7 This motion underlines the essential contribution of judges to ensuring respect for the rule of law by defending individual freedoms, notably under Article 6 of the European Convention on Human Rights, which protects the right to a fair trial.
The motion should note that certain international standards on rights relating to the exercise of the profession of a judge already exist, including the Council of Europe Committee of Ministers’ detailed Recommendation (R 2010) and the 1985 United Nations Basic Principles on JI. These standards are set out in non-binding instruments, however; whilst Article 6.3.of the Convention establishes the right of an individual to an independent / neutral judge there are no binding international standards regulating the profession of a judge, and domestic regulationvaries between States....

8 See the letters of the President of the National Judicial Council of the Hungarian Judiciary (NJC/OBT), Sándor Szabó, of 12-11-2018, and of the Association of Hungarian Judges (Magyar Bírói Egyesület – MABIE), Ms JuditZso’fia Oltai, of 9-2-2019 (Appendix I.)

  • the Member of the EAJ-WG and Honorary President of the IAJ, Judge Gerhard Reissner
  • and the Honorary President of the IAJ, Judge Günter Woratsch.The mission to Budapest was accomplished from April 24th to 26th 2019.2. Mandate of the MissionThe Association of Hungarian Judges asked the EAJ to conduct an investigation into the following points:
  1. The ineffectiveness and consequences of the interim election of missing members of the National Judicial Council (NJC), lacks in collaboration between the National Office for the Judiciary (NOJ)and the National Judicial Council (NJC).
  2. The practice of appointing judges and court leaders under the authority of the President of the National Judicial Office.
  3. Observance and safeguarding of rights of participation in regard to groups of representatives, theAssociation of Hungarian Judges (MABIE) in particular.9

...

8 Overall Conclusions

  • Since May 2018 the Hungarian Judiciary is facing a very grievous situation which in some aspects comesclose to a “constitutional crisis” due to the activity of the President of the NOJ who denies any collaboration with the National Judicial Council. Thus, the two bodies of judicial self-government, the National Office of the Judiciary (NOJ) and the National Judicial Council (NJC) cannot work together any longer which leads to a blockade, and thus to the impossibility of the NJC to perceive its supervisory tasks.
  • The competences of the NOJ, which are vested in one person, the president, are much too large, almost comprehensive (as already the GRECO – Report of 2015 has ascertained. On the other hand, the jurisdiction of the NJC is too restricted almost non-existent and can easily be neutralised – as in casu!
  • It is inadmissible that the organ which should be controlled (the NOJ) can declare the controlling organ(the NJC) “illegitimate” and refuses the collaboration, provided by law, with this organ. Thus, neutralising the controlling body.
  • It is furthermore problematic when the procedure for bye-elections to the controlling body (the NJC) can only be tackled by the body to be supervised.
  • The jurisdiction of the NOJ relating the appointment and promotion of judges and the secondment of judges from one court to another is particularly problematic under the aspect of judicial independence. If the composition of the NCJ indeed needs additional members a bye-election must be organized as quickly as possible and the procedure should be initiated by either the NOJ or the NJC.
  • Relating to the appointment and promotion of judges, The GRECO – Report of 2015 (Group of States against Corruption/Councils of Europe Anti-Corruption Body) recommended an amendment of the NOJ’sPresident widespread powers in order to establish more competences of the NJC on this field (p. 28 of that report). The Committee supports this proposal.
  • Judges have the right to form associations (see Recommendation 2010/12 of the Committee of Ministers of the Council of Europe, para 25, UN Basic Principles on the Independence of the Judiciary, point 9). It is highly recommended to involve judges in all projects etc., with regard to their status or their work, be it in legislature or on the executive level.
  • The members of the delegation noticed that MABIE obviously regained its strength and willingness to fight for the rule of law in Hungary, that they take important steps in the interest of the judiciary and their9 National Office for the Judiciary (NOJ), in HungarianOrszágos Bírósági Hivatal Elnöke (OBH); National Judicial Council (NJC); in Hungarian: Országos Bírói Tanács (OBT). In 2012 a new self-government systemwas established which divided the powers formerly belonging to NCJ between two newly established judicial organs: the NOJ and the (new) NJC (see appendix II).

colleagues and that this positive development is seen also from representatives of other institutions. They regret that this view is not adopted by the National Office for the Judiciary (NOJ).

  • It is a long-lasting idea fostered by academics and many judges to separate the administrative court system from the civil and criminal court system. There should be clear regulations, on the constitutional levelwhich cases should belong to which branch, otherwise there is the danger of arbitrary shift of tasks.
  • It is recommended that administration of courts should be in the hands of ministers of Justice only when there is a long and strong tradition and when nevertheless the balance of powers of the state as essentialelement of the rule of law is guaranteed (Venice Commission et al.),
  • Without evaluating if this is the case in Hungary it is in any case obvious, that to guarantee functioningof the balance of powers, additional amendments of the law regarding the appointment of judges and presidents, criteria for the President of the Supreme Administrative Court, and enlargement of the powers of the National Administrative Judicial Council are necessary.9 RecommendationsThe Committee recommends to the EAJ at its meeting in Copenhagen
  1. a)  To take not of the report of this mission.
  2. b)  To forward the report to the Association of Hungarian Judges (MABIE) at their disposal, and to theHungarian National Judicial Council, the National Judicial Office, the Ministry of Justice, the HungarianBar Association, the Curia (Supreme Court of Hungary), the Parliament.
  3. c)  To express full support to MABIE and asking for their update on the situation before the next meeting inNurajev (Astana) in September 2019.

The EAJ Working Group on the Situation in Member Associations

Sub-Committee “Mission to Hungary”Basel, Wien, Budapest, May 3rd2019

Stephan Gass, Gerhard Reissner, Günter Woratsch