The development is expected to play an important role for the decision of the European Commission, which is currently considering a treaty violation procedure against Hungary in relation to the independence of its judiciary (see background).
On 20-21 February 2012, two separate delegations of the Venice Commission, the Council of Europe body on constitutional matters, visited Budapest. One of them examined the new legislation relating to the legal status and remuneration of judges and to the organisation and administration of courts, and the second one a newly adopted Hungarian law (Act) on religious freedoms.
The adoption of the Fundamental Law and even more so the adoption of the Act on the Legal Status and Remuneration of Judges (ALSRJ) and the Act on the Organisation and Administration of Courts of Hungary (AOAC) as well as the Transitional provisions of the Fundamental Law have brought about a radical change of the judicial system, the experts concluded.
"Even if it might be possible to justify some of the [newly introduced] elements in the framework of the Hungarian tradition, the reform as a whole threatens the independence of the judiciary. It introduces a unique system of judicial administration, which exists in no other European country," the Venice Commission stated.
The Strasbourg-based institution enumerated a long list of concerns: The election of the President of the National Judicial Office (NJO) for a nine year period (which can be indefinitely extended by a blocking majority of one third of members of Parliament), the very extensive list of competences of the NJO President, his strong influence on the appointment of court presidents and other senior judges, the possibilities to transfer judges against their will and the harsh consequences of a refusal, the regulation on early retirement of judges, etc.
"The Commission concludes that the essential elements of the reform – if they remained unchanged – not only contradict European standards for the organisation of the judiciary, especially its independence, but are also problematic as concerns the right to a fair trial under Article 6 of the European Convention on Human Rights.
More importantly, the Venice Commission takes the view that the new Hungarian Constitution should be amended "where necessary".
Up to now, the Hungarian authorities have shown some degree of flexibility as to amending some laws, but not the newly adopted Fundamental law.
"The Commission remains of the opinion that basic tenets of the independence of the judiciary including strong checks and balances should be regulated in the Constitution itself and that the Fundamental Law should be amended accordingly," the Venice Commission stated.