Hungarian judicial reform worth €13 billion voted through, hidden in amendment

The Hungarian Parliament has voted in favour of a bill that was originally intended to amend the asset declaration system, but was completely rewritten at the last minute in the legislative committee and given a new title. NGOs say the judicial reform was pushed through Parliament in a manner that violates the rules of the House. They say that while the amendment includes positive elements, it fails to address the rule of law problems identified by the EU on several points.

The Hungarian National Assembly adopted the significantly rewritten proposal on Wednesday with 151 votes in favour and 23 abstentions.

One of the cornerstones of the months-long negotiations between the Hungarian government and the European Commission is the judicial reform, a draft of which was posted on the government's website in January. A government representative then informed the members of the National Judicial Council (Országos Bírói Tanács, OBT), which is affected by the reform, in early March that the proposal would be submitted to Parliament on 3 March. On that day, Judit Varga, the Minister of Justice, indeed submitted a bill, but it was on asset declarations and had nothing to do with the amendments affecting the courts, either in title or in content.

NGOs say the government's actions breached House rules

However, according to a joint statement by Amnesty International Hungary, the Eötvös Károly Institute and the Hungarian Helsinki Committee, the bill included four paragraphs that proposed amendments to provisions of the laws which were completely unnecessary in the context of the judicial reform (for example, the conjunction "and" would have been replaced by "as well as").

Then, a few days before the final vote on the proposal, Deputy Prime Minister Zsolt Semjén unexpectedly initiated the procedure of the legislative committee (TAB).

Still on the same day, with lighting speed, the governing-party members of the TAB submitted the legislative package as an amendment proposal, but considerably revised compared to the January version.

According to the NGOs, the completely unnecessary amendments originally included in the proposal were intended to provide a basis for this particular procedure. The amendment was passed by the legislative committee the following day, and the new version was put to the vote in Parliament.

"What has happened then was that the government has completely replaced the original bill on asset declarations, which had passed the committee and parliamentary debates, with a package of EU requirements for the courts at the last minute before the final vote, thus preventing judges, NGOs and opposition MPs from providing any meaningful input on the proposed amendments," the NGOs said in a statement.

"The conduct of the government and government representatives is not only a gross mockery of the rule of law, but also contrary to the rules governing the functioning and the conduct of proceedings in Parliament, i.e. the provisions of the House Rules".

Indeed, the rules of the House stipulate that no amendment "which seeks to delete the whole of the bill" may be debated, and in this case, according to the NGOs, the original proposal amending the system of asset declarations has been filled with entirely new content.

The powers of the Judicial Council have been strengthened

According to the communiqué, the proposal has changed on several points compared to the previous draft submitted for public consultation at the end of January. The reform gives more effective control powers to the self-governing body of judges, the National Judicial Council (OBT) which will be able to give its opinion on all draft laws affecting the judiciary as of 1 June.

In addition, the OBT will have greater powers of appeal and the President of the National Office for the Judiciary will be obliged to give reasons for decisions where the OBT has the right to give its consent. In the future, the Judicial Council will be able to examine the candidates for the presidencies of the National Office for the Judiciary and the Curia in person, and will have the authority to disqualify any candidate whose independence, impartiality, integrity or propriety it considers inadequate.

Under the amendment, the OBT will have access to all information relating to the administration of the judiciary, so that, according to the NGOs, "in future, the President of the National Office of the Judiciary will no longer be able to conceal decisions on, for example, bonuses".

"The EU expectation that the authorities no longer be able to appeal to the Constitutional Court against final court decisions on the grounds that their fundamental rights have been infringed" also seems to have been met.

However, NGOs say there is still a serious problem with the possibility of Hungarian judges appealing to the EU Court of Justice (CJEU). The proposal only amends procedural rules, so judges may still fear that if they ask the CJEU a question on a sensitive issue, their procedure will be considered unlawful and they may suffer further disadvantages.

According to the NGOs, the case of Constitutional Court members who were previously appointed as judges has only been partially resolved. While the January draft would have continued to allow the current Constitutional Justices to be automatically appointed to the Curia without a call for applications, the latest draft would allow them to "only" be appointed to the Regional Court of their choice. And those who were judges before they became members of the Constitutional Court would be able to return to their previous jobs after they ceased to be Constitutional Justices.

The NGOs claim that the possibility of the President of the Curia also being elected President of the OBT has not been ruled out in the judicial reform, and neither has the possibility of judicial leaders appointed by the President of the National Office of the Judiciary being elected to the Municipal Council of Judges, thus controlling their own employer. "It is also not an acceptable solution that a judge could be appointed to the position of council president by the president of the National Office of the Judiciary without a contest once his or her appointment to an administrative body has ended, thus continuing to make obtaining senior positions possible by the circumvention of the contest system," they write.

The EU hasn't given its final approval yet

As a "horizontal conditionality", judicial deficiencies alone are almost completely blocking €22 billion in cohesion funding from Hungary. Although the budget cannot receive part of this amount for other reasons, an agreement on this condition could free up around €13 billion (roughly 4,900 billion forints).

The justice conditionality is also part of the 27 "milestones" that block the disbursement of the €5.8 billion (about 2,200 billion forints) of the non-reimbursable part of the recovery fund which are over and above the EU budget.

The EU conditions are:

• strengthening the role and powers of the National Judicial Council (Országos Bírói Tanács-OBT), which holds independent judicial oversight powers over the judiciary;
• the independence of Curia judges – formerly the Supreme Court – to protect them from political interference.
• the possibility for the authorities to challenge final judgments in the Constitutional Court to be abolished, and
• obstacles to be removed for Hungarian judges referring cases to the ECJ if they consider that Hungarian and EU law are not in line – the EU Court of Justice having previously ruled that the existence of such obstacles was a violation of EU law.

The government had submitted its first reform proposal for public consultation in January, but neither the OBT and – according to leaked information – nor the European Commission were satisfied with it. On 24 April, Judit Varga announced that a "technical agreement" had been reached with the European Commission on a version of the proposal that was intended to be final, but the Commission was more cautious and pointed out that the proposal still had to be approved by a "college" of all commissioners and the Commission president.

Moreover, EU Justice Commissioner Didier Reynders, told Radio Free Europe's Brussels correspondent on Tuesday that the Hungarian government will still have some work to do once the law is adopted. Until then, the case cannot even be submitted to the Commission for political approval. They will not only wait for the law to enter into force, but also want to see the implementation of several measures related to its content. These include the practice of allocating cases to the Curia, as well as the provision of the necessary budget for the functioning of the OBT. The commissioner said that the outstanding issues could be settled by the end of June or by early July, and that the college would discuss the Hungarian judicial package only after that at the earliest.