Measures taken by the Parliament and the Curia to strengthen the independence of the judiciary

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Date: 
21 February 2022

In Autumn 2021, the Venice Commission examined the December 2020 amendments to the Act on the Organisation and Administration of the Courts (Courts Act) and the Act on the Status and Remuneration of Judges (Judgeship Act). The opinion no. CDL-AD(2021)036 adopted at the Venice Commission’s 128th session, held from 15 to 16 October 2021, welcomed the uniformity complaint procedure that may be initiated by the parties to the case and did not object to a limited system of precedents, finding them to be in line with the rule of law. At the same time, the Venice Commission made a number of suggestions concerning the Curia, which were considered and acted upon by the Parliament and the Curia. The President of the Curia has informed the President of the Venice Commission of the aforementioned measures in writing.

Some of the recommendations concerned the Curia’s case allocation system and the number of judges sitting in the panel for certain types of cases. Under the Curia’s current case allocation order, cases are, in principle, allocated to the various judicial panels in a fully automated manner. The case allocation order of the Curia – which is to be opinionated, voted and approved by the Curia’s chambers and elected Judicial Council – and a detailed explanatory note thereto are publicly available on the Curia’s website, thus it may be consulted by anyone. As of 1 January 2022, the case allocation order determines the composition of the panels even more clearly. As of 1 March 2022, due to a legislative amendment to the Code of Administrative Litigation, the Administrative Chamber of the Curia will act, as a general rule, in the form of a panel composed of five professional judges instead of three of them. The head of panel may, however, exceptionally refer the case to a panel composed of only three professional judges. After the elections in April, the Curia intends to propose an amendment to the Code of Civil Procedures and the Code of Criminal Procedures with similar content.

The Venice Commission has proposed the elimination of the “old” type of uniformity procedures, which deal with questions of principle and exclude the involvement of the parties to the case. As of 1 January 2022, the Courts Act has been modified in the light of the above findings of the Venice Commission. The amended legislation integrates the uniformity procedure into the uniformity complaint procedure, as the latter one was found to be in compliance with the Venice Commission’s requirements. Based on the model of the preliminary ruling procedure of the Court of Justice of the European Union, this kind of cases will also be dealt with by the uniformity complaint panel in the future. Such procedure may be initiated only for the uniform application of laws, the former decisional procedure “on questions of principle with the aim to further develop the interpretation of law” criticised by the Venice Commission is fully abolished. In the course of the uniformity procedure, the rules for the adjudication of uniformity complaints in connection with the decision to be passed on a motion for the launch of a preliminary ruling procedure shall be applied. The parties affected are involved in the procedure.

As a result of the amendment to the uniformity procedure, it is no longer possible for the President of the Curia to determine which field-of-law based uniformity panel each judge may sit on. The Curia has established two permanent uniformity complaint panels as of 1 January 2022, which have – as it was recommended by the Venice Commission – a large number of members, with more than the statutory minimum of 9 members, they include 21 members, and are composed of the Curia’s heads of panels and senior court leaders. The heads of panels are assigned to uniformity complaint panels no. I and II in the alphabetical order of their surnames within the panels. Each judicial panel referred to in the Curia’s case allocation and organisational order provides one head of panel to be involved in the uniformity complaint procedure. The allocation of cases is automatic, the two uniformity complaint panels take it in turns to receive their cases. Both uniformity complaint panels are chaired by the President of the Curia. The Vice‑President of the Curia in charge of ensuring uniform jurisprudence is a member of both uniformity complaint panels. The decision on the admissibility of a complaint is to be taken by the full board of the panel in the case of both uniformity complaint panels.

The temporary heads of panels are appointed strictly on the recommendation of the heads of chambers, and their place in the case allocation order is decided by a vote of the chambers. This method rules out any arbitrariness.

As a result of the measures based on the Venice Commission’s recommendations, the Curia is certainly operating the strictest case allocation regime in Europe, even in comparison with that of the Court of Justice of the European Union and of the European Court of Human Rights. Thus, there can be no reasonable doubt as to the independence and impartiality of the adjudicative activity of the Curia.

Budapest, 21 February 2022

The Communications Department of the Curia of Hungary