Transparency International alarmed by government plans to reorganize courts

October 1, 2016

“If Hungary were a well-functioning rule-of-law state, then one could agree with this plan in its entirety.  (However), when it was revealed what they were doing, they began their typical maneuvering and obfuscation.

“It is not an unusual rule-of-law solution in Europe for a government to create special courts to deal with particular legal disputes or to mediate lawsuits requiring special knowledge. At the same time, it is absolutely not right that the government planned this in secret. That this reorganization is happening en masse and involves the upper courts instead of the lower courts gives cause for suspicion.

“We must ask ourselves who stands to benefit, why is it good and important that a well-functioning, established litigation procedure be completely modified and put under the supervision and direction of such a court where 50 percent of the judges are employees of the government.”

-Legal director of Transparency International Miklós Ligeti, speaking on the planned government administration court in an interview with the Budapest Beacon.

According to the cabinet’s plans, a government administration court would be created to determine the legality of decisions made by numerous state institutions. Legal disputes related to, among others, election issues, public procurements and media authority would end up there.

The government has dismissed serious objections raised by the National Judicial Office (OBH), although it would be difficult to accuse its head, Tünde Handó, wife of Fidesz MEP József Szájer, of anti-government bias.

Among the objections raised by the OBH in its 32-page analysis is that “primarily economic cases, but often cases with political factors, will go before the higher court, the transfer of judicial power to a large number of professionals coming from the executive branch form the basis of criticism regarding the violation of the court’s organizational independence and rule-of-law constitutional regulations.”

However, no substantial changes are expected, because the political decisions supporting the plan have already been made, the minister having convinced Prime Minister Viktor Orbán on creating a separate second-level court to try cases involving official decisions issued by government bodies, writes daily print Népszabadság.

Perhaps the only encouraging development is that cases involving requests for public information will not fall within the jurisdiction of the special court — at least according to a statement by the author of the proposal, Krisztina Rozsnai, the ministerial commissioner of the Ministry of Justice (IM), in a debate conducted at the Hungarian Academy of Sciences (MTA) in September. In that debate, Eötvös Loránd Science University (ELTE) department head and professor Zoltán Fleck said that taking significant cases away from the courts is characteristic of the manner in which authoritarian systems ensure judicial independence.

Recently Budapest Beacon correspondent Benjamin Novák spoke to the legal director of Transparency International Hungary, Miklós Ligeti.

According to him, the issue can be explored in a number of ways. “One could say that in this regard it is a totally legal, correct and wise thing for the government to create special courts for specific disputes and for lawsuits which require special expertise.” This legal solution is not unusual in Europe. For example, in France, which Hungarian the government has been constantly referencing of late, it has been a tradition for many decades that administrative disputes and judicial review of state and government administrative decisions is handled by a special judicial body.

“If Hungary were a well-functioning rule-of-law state, then one could agree with this plan in its entirety,” said Ligeti, who believes it was wrong of the government to prepare these plans in secret.  “When it was revealed what they were doing, they began their typical maneuvering and obfuscation.”

Ligeti dismisses Rozsnai’s claim that the government had listened to people’s opinions and would alter the most critical points of the contents of the laws.

“It isn’t listening to the opinions of the people when they try to erase the most offensive parts of the law in the midst of trouble and scandal triggered by the leak of the plan, regardless of the government’s intentions,” Ligeti emphasized.

He says government administrative jurisdiction means that the state gives rights to the citizen to debate in court different state administrative decisions, for example, in the case of building permits, or driving licenses, or perhaps a financial authority decision.

“This is good, this is needed, it is one of the achievements of the system change in Hungary. When the country emerged from communism, one of the guarantees was that state and government decisions could be debated in court.” Ligeti says it is a proper rule-of-law solution that citizens have the opportunity to appeal state and government decisions in court, and they still have this opportunity since administrative courts are still operating in the country.  He observes that the government failed to substantiate why these courts should be thrown out and new courts should be organized in their place.

Why is this needed? It is well known that the administrative courts would handle the most sensitive cases for the government, especially ones involving Hungarian National Bank (MNB) and National Election Commission (NVB) decisions.

According to a leaked draft of the proposal, the government plans to give the new court jurisdiction over access to public information and basic civil and human rights, a decision Ligeti calls “outrageous”.

“This means that if a state institution or state enterprise dealing with public money doesn’t give over requested data, the public disclosure of which is actually required, and a journalist, citizen or civil society organization wants to oppose this in court, then they must go not to a normal court but to a new government administration court,” says Ligeti.  Although the latest draft reportedly does not include this, the government could easily slip it in before the vote.

Ligeti says Hungarian judges have been good about ensuring access to public information and freedom of information, and that this is, in part, due to Transparency International consistently winning lawsuits against state companies and governmental institutions in court.

“The way the government imagines this new administrative court is that at the top of the new institution will be the upper court, to which it wants to appoint not only judges taught and trained in the courts, but government officials reared in government institutions,” Ligeti said.

“It is not an unusual rule-of-law solution in Europe for a government to create special courts to deal with particular legal disputes or to mediate lawsuits requiring special knowledge. At the same time, it is absolutely not right that the government planned this in secret. That this reorganization is happening en masse and involves the upper courts instead of the lower courts gives cause for suspicion,” says the jurist, adding that “we should always be suspicious when such a reorganization takes place en masse and in an unusual way, and happens in the higher courts and not in the lower.”

Ligeti finds it suspicious that the government wants to give the new court jurisdiction in virtually all cases in which the government is the defendant.  He says government claims that the proposed court will bring different perspectives and greater expertise should be treated with a healthy degree of skepticism, pointing out that the government in the last few years has raised a generation of government officials loyal to it rather than the truth. “They are going to know that they will have to make all kinds of decisions as judges in the administrative upper court, and will be able to assert the interests of the government,” warns Ligeti.

“We must ask ourselves who stands to benefit, why is it good and important that a well-functioning, established litigation procedure be completely modified and put under the supervision and direction of such a court where 50 percent of the judges are employees of the government.”

Ligeti says the government has yet to release an official version of the final bill.  He says the fact that none of the leaked copies have been submitted to Parliament means they were not intended for use in a parliamentary hearing, but were ministerial drafts prepared for the government.

Ligeti finds it a strange coincidence that the ministry commissioner who drafted this bill was one of three candidates whose names were submitted by the Hungarian government to the European Commission of Human Rights from which to select the next Hungarian judge to sit on the European Court of Human Rights.

“So it turns out that Hungary would like to appoint this lawyer, a professional in the area of government administration, as its human rights judge in the Strasbourg court for nine years, despite seemingly fundamental conflicts of interest in the actions of this lawyer which affect a multitude of important and basic rights which is not at all compatible with the Strasbourg human rights convention.”

Ligeti asks how a government that nominates a government procedural lawyer to the Strasbourg court can be expected to comply with the spirit and requirements of the convention on human rights.