Die Venedig-Kommission, das beratende Gremium des Europarates für Verfassungsfragen, hat sich mit der in Ungarn vollzogenen bzw. geplanten Justizreform befasst. Das europaweit in die Kritik geratene Gesetzeswerk sieht u.a. die Neuordnung der Justiz einschließlich der Einführung eines Justizrates (der u.a. für Personalentscheidungen zuständig sein soll) und die zwangseise Absenkung des Richterpensionsalters von 70 auf 62 Jahre vor. Die Kommission bedenkt die Regelungen mit deutlicher Kritik und empfiehlt Änderungen.
Der vollständige Bericht ist hier abrufbar: http://www.venice.coe.int/docs/2012/CDL-AD%282012%29001-e.pdf
Die Schlussfolgerungen des Expertengremiums:
„116. The adoption of the Fundamental Law and, even more so, the adoption of the Act on the Legal Status and Remuneration of Judges and the Act on the Organisation and Administration of Courts of Hungary as well as the Transitional provisions of the Fundamental Law have brought about a radical change of the judicial system.
117. The Commission accepts that there was a need to improve the efficiency of the previous system. While the Commission identified a number of positive provisions in the AOAC and the ALSRJ, it also found numerous elements which are problematic. Even if it might be possible to justify some of these 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.
118. The main problem is the concentration of powers in the hands of one person, i.e. the President of the NJO. Although States enjoy a large margin of appreciation in designing a system for the administration of justice, in no other member state of the Council of Europe are such important powers, including the power to select judges and senior office holders, vested in one single person. Neither the way in which the President of the NJO is designated, nor the way in which the exercise of his or her functions is controlled, can reassure the Venice Commission. The President is indeed the crucial decision-maker of practically every aspect of the organisation of the judicial system and he or she has wide discretionary powers that are mostly not subject to judicial control. The President is elected without consultation of the members of the judiciary and not accountable in a meaningful way to anybody except in cases of violation of the law. The very long term of office (nine years) adds to these concerns.
119. The major points which need revision include:
- the regulation of a number of organisational issues on the level of cardinal laws,
- the election of the President of the 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 President of the NJO, which are not subject to a veto by the NJC or subject to judicial control,
- the attribution of the powers of the President of the NJO to an individual person, without providing for sufficient accountability,
- the absence of an obligation for the President of the NJO to motivate all decisions,
- the composition of the NJC exclusive of judges, without the membership of other actors (advocates, civil society),
- the restriction of the NJC on mere recommendations / opinions in most of its powers,
- the lack of a veto by the NJC against the appointment of court presidents by the President of the NJO,
- the system of supervision of judges by the court presidents who have to report to the superior courts, up to the Curia, about judgments, which deviate from earlier case-law (uniformisation procedure),
- the strong influence of the President of the NJO on the appointment of court presidents and other senior judges,
- the possibility of the President of the NJO to initiate the uniformisation procedure, which contradicts his or her administrative role,
- long probationary periods for judges, and in particular the fact that they can be repetitive,
- the possibilities of transfer of judges against their will and the harsh consequences of a refusal (‘exemption’ and automatic dismissal),
- the absence of sufficient fair trial guarantees in evaluation and disciplinary proceedings,
- the transfer of cases by the President of the NJO to another court as such, but especially the absence of objective criteria for the selection of cases to be transferred and the court to which the cases are to be transferred,
- the regulation on early retirement of judges.
120. These issues taken together and looked at also in the light of other problems addressed in this Opinion, 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 ECHR. This Opinion seeks to indicate how these issues might be overcome through amendments of the newly enacted norms.
121. In its Opinion on the new Constitution, the Venice Commission had expressed its hope that its recommendations be taken into account “by amending the Constitution where necessary”.54 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.
122. The Venice Commission was informed that – as a reaction to the draft Opinion – the Government intends to introduce amendments to the judiciary acts in Parliament, which is to be welcomed (www.Venice.CoE.int/docs/2012/CDL(2012)104-e.pdf). The Commission had no possibility to examine these proposals, but remains at the disposal of the Hungarian authorities to examine them.„