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Oct 03, 2018 - Zoltán Kovács

Q&A on Hungary’s plan to establish independent, administrative courts

The government of Hungary is planning to establish independent, administrative courts that would have the authority to adjudicate disputes in matters of public administration. While independent administrative courts are common to many EU countries, the move to create these courts in Hungary has raised some of the usual questions about judicial reform and independence. This brief Q&A offers some answers.

The government of Hungary is planning to establish independent, administrative courts that would have the authority to adjudicate disputes in matters of public administration. The Ministry of Justice will put forth a legislative proposal by the end of October. Plans call for the public administrative courts to have headquarters in Esztergom and courts in eight cities around the country. If approved, they would be ready to start work by January 1, 2020. While independent administrative courts are common to many EU countries, the move to create these courts in Hungary has raised some of the usual questions about judicial reform and independence. This brief Q&A offers some answers.

What are these courts and what do they do?

Citizens have the constitutional right to appeal decisions of public administration bodies, and these administrative courts would settle those disputes. In administrative courts, rulings would be made by judges who are more experienced, better equipped and more knowledgeable about the unique body of law that regulates public administration.

A fundamental pillar of the rule of law says the state must exercise judicial control over the actions of public administration bodies, and one of the common solutions to exercising judicial control is to give that power to an independent, administrative judicial organ.

Why would these courts stand independent from the rest of the judiciary?

The new judicial body must enjoy organizational independence because in administrative disputes, unlike in civil cases where the parties are equal, there is a hierarchical inequality in favor of public administration. Judges at administrative courts would protect both the public interest (referred to as objective legal protection) and individual liberties (referred to as subjective legal protection).

Like any other court, public administration courts will be filled with independent judges solely governed by the word of the law. Upon request, judges already working in the field of public administration law will be transferred to the new institutions.

From January 1, 2020, administrative courts will have jurisdiction over public administration matters and ensure uniform, high-quality adjudication. This would lead to more rapid rulings, which benefits citizens and also eases the present workload of the Kúria, Hungary’s supreme court.

Why set up these courts now?

Hungarian citizens now have access to more legal remedies in public administration matters, and the government of Hungary expects a significant increase in legal proceedings. The government and, specifically, the Ministry of Justice want to make these proceedings more efficient by establishing an independent judicial body where the professional knowledge and experience of judges will make administrative judicial procedures run more efficiently.

But there’s more to it than that. These courts have a long history in Hungary.

Administrative courts were established in Act No. 26 of 1896 and originally referred to as the Hungarian Royal Administrative Court. The court was disbanded by Hungarian communists in 1949 as part of their effort to undermine the rule of law.

After the regime change in 1990, Act No. 26 of 1991, attempted to revive the courts by extending legal regulations on the judiciary, administrative procedures and civil procedures “towards the full establishment of courts.” It was withdrawn by a previous Socialist government without justification.

Furthermore, the current process has been underway for some time. Professional talks on bringing back the courts were already underway two years ago. The entry into force of the new Administrative Procedural Code on January 1st, 2018, started the process of repositioning and regionalizing administrative procedures.

According to Article 25 of Hungary’s Fundamental Law, specific courts shall be established to deal with specific matters. Currently, the administrative and labor courts serve this function in the first degree, but once appealed, the cases are forwarded to second-degree courts with general jurisdiction. An independent, supreme administrative court would effectively fill this void.

Are independent, administrative courts common in Europe? Do other EU countries have such courts?

Yes. Independent administrative courts exist in many other European countries, for example in Austria, the Czech Republic, Germany and Poland. In addition, the constitutions of 16 member states of the European Union include clauses calling for – to a varying degree - the establishment of administrative courts. There’s nothing novel in this initiative.

As part of the effort to solicit professional opinions, the Ministry of Justice has set up a committee comprising university professors, judges and the state secretary for Judicial Relations to weigh in on the specific questions surrounding the debate about the new courts.