In a report published today – Courting Controversy: the Impact of the Recent Reforms on the Independence of the Judiciary and the Rule of Law in Hungary– the International Bar Association’s Human Rights Institute (IBAHRI) calls on the Government of Hungary to respect the decision of the country’s Constitutional Court and to repeal the new legislative provisions that lowered the mandatory age of retirement for judges to 62 years, forcing the immediate retirement of more than 270 justices.
Further, the IBAHRI recommends that the Government of Hungary promptly set out the procedure for providing compensation to the judges for their forced retirement as well as swift reinstatement to either their previously-held post or a comparable position. Similarly, the status of the judges who have been appointed in their place should be clarified.
Sternford Moyo, Co-Chair of the IBAHRI, commented: ‘Aside from violating EU non-discrimination law, the retroactive effect of the law clearly undermines judicial security of tenure, and deprives the Hungarian judiciary of the accumulated experience of its most senior judges. The International Bar Association’s Human Rights Institute calls on the Hungarian Government to repeal the offending legislative provisions and to provide effective remedies for those judges who have been forced to retire.’
However, a statement by the Prime Minister, Viktor Orbán, during a press conference, is of concern to the IBAHRI. Immediately following the judgment of the Hungarian Constitutional Court of 16 July 2012, that found the lowering of the retirement age for judges unconstitutional and a contravention of the independence of the judiciary, Mr Orbán declared: ‘the regime is here to stay’.
The 57-page report that contains the above findings and recommendations resulted from a visit by an IBAHRI fact-finding delegation to Hungary to examine the impact of a series of controversial legislative reforms, including a new Constitution, which came into force at the beginning of 2012. At the end of its visit, in March 2012, thedelegation concluded that although the rationale behind the reforms as presented by the Hungarian Government – to make the operation of the judicial system faster and more efficient – is to be welcomed, several of the specific legislative solutions as they then stood, seriously threatened the institutional guarantees of judicial independence.
Subsequent to the delegation’s visit, the Hungarian Parliament passed legislation, in July 2012, addressing some of the main concerns regarding the independence of the judiciary, particularly in relation to the sweeping powers of the President of the newly-created National Judicial Office.
While, generally, the legislative amendments introduced are considered improvements to some of the worst aspects of the reforms, the IBAHRI stresses that significant areas of concern remain, including: the curbing of the Constitutional Court’s role in reviewing legislation and the ability of citizens to have their constitutional rights adjudicated by it, as well as the Executive’s attitude toward other branches of state in relation to recent legal reforms – particularly the tendency not to respect the decisions of the Constitutional Court or to engage in proper legislative consultation.
The IBAHRI further recommends that:
The Government of Hungary consider establishing a panel to review the new Constitution to assess how it is operating in practice and to suggest amendments. Such a panel should include membership from across the political spectrum;
The Government of Hungary cease the practice of overturning Constitutional Court judgments with which it disagrees. A constitutional review panel should consider the issue of restrictions on the jurisdiction of the Constitutional Court. Furthermore, the Government should provide for the possibility of legal aid for admissible constitutional challenges and review the constitutional amendments that restrict locus standi and the ability of individuals to vindicate their constitutional rights in court; and
The Government of Hungary refrain from using non-standard parliamentary procedures in order to legislate in areas affecting fundamental aspects of public life and, in general, should seek to engage with opposition groups and civil society on a more frequent and systematic basis.
Click here to download the IBAHRI report, Courting Controversy: the Impact of the Recent Reforms on the Independence of the Judiciary and the Rule of Law in Hungary.
The IBAHRI delegation visited Budapest between 19 – 23 March 2012.
The delegation comprised:
Professor Jerzy Makarczyk Former Judge of the European Court of Human Rights and the European Court of Justice, Former Secretary of State for Foreign Affairs of Poland;
Professor Cathi Albertyn Professor of Law at the University of the Witwatersrand, Johannesburg, South Africa, former Commissioner of the South African Law Reform Commission (2007–2011);
Dr Ronan McCrea (Mission Rapporteur)Faculty of Laws at University College London; visiting Lecturer at the Central European University in Budapest, Ireland; and
Mr Alex Wilks IBAHRI Senior Programme Lawyer.
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