THE ACT ON ADMINISTRATIVE COURTS IS IN LINE WITH THE FUNDAMENTAL LAW21 June 2019
One quarter of the Members of Parliament initiated at the Constitutional Court the annulment of the Act on Administrative Courts. The petitioners alleged, on the one hand, the violation of the rules on the preparatory period, on the separation of powers on the other hand, and thirdly the violation of the requirement of the impartiality and the unbiased decision making of the adjudicating judges.
According to their position, the principle of judicial independence is injured when, in the case of becoming an administrative judge, the minister of justice is entitled to decide about who could be a judge; the minister shall select the winner from among the applicants to a judicial position and the minister shall appoint the court leaders, and he or she shall decide in budgetary questions.
After the submission of the petition, with the Act on Further Guarantees Securing the Independence of Administrative Courts, the National Assembly modified and amended the Act on Administrative Courts as well as the Act on entering into force of the above. In the course of examining the modified and amended Acts, the Constitutional Court based its review on the fact that although judicial independence is an achievement of our historical constitution, it is not identical with the complete administrative independence of the court system providing the framework for the judicial activity. There are several models of court administration (the ministerial model, administration through judicial councils, the mixed model and various versions of the foregoing). Therefore, an emphasis should be put on guaranteeing that the administration only affects the structural operation of the courts (for example, in which settlements is it justified to have a court, or the number of the staff) without influencing the merits of their professional operation, namely the adjudicating activity, together with the related independence of the judges and of the court system. The differentiation made in principle between the adjudicating activity and the external administration of the courts as organisations is an achievement of our historical constitution. However, administration is an activity of a specifically executive character. The administration of courts is a duty of public administration entrusted on the executive power. Administration by the minister, in itself, shall violate neither the principle of the separation of powers, nor the judicial independence. As long as the administrative activity of the minister does not exercise a direct influence on the professional operation – namely on the adjudicating activity –, no conflict with the Fundamental Law may be established.
By examining in details the objections made in the petition, the Constitutional Court established that the Act provides, in the form of participation by the judicial bodies, due counterweight to balance the one-sided political role of the minster of justice. The Personnel Council of the National Administrative Judicial Council (NAJC) shall enjoy appropriate powers in the process of becoming a judge as well as with regard to appointing and dismissing court leaders. The budgetary powers of the minister responsible for the administration of administrative courts are based directly on the Fundamental Law, the contribution by the judicial bodies and by the leaders shall form an adequate counterweight to guarantee judicial independence. The rules on posting and transferring judges as well as on posting judges to another venue of service, and the rules on awarding titles contain adequate guarantees to protect the principle of the independence of the adjudicating activity.
Justices Egon Dienes-Oehm, Ildikó Hörcherné Marosi and Imre Juhász attached concurring reasonings and Justices István Balsai, Béla Poko and István Stumpf attached dissenting opinions to the decision.