14 January 2019
According to analyses published earlier this month by the website Verfassungsblog, the Bulgarian and Hungarian governments are undermining the rule of law and the independence of the judiciary whilst obtaining nominal approval for their actions from institutions such as the European Commission, the European Court of Human Rights and the Council of Europe's Venice Commission (formally known as the European Commission for Democracy through Law).
According to an article by Radosveta Vassileva (Verfassungsblog, link) of University College London, "Bulgaria’s executive is now headed into the homestretch of capturing the entire justice system."
The current phase involves proceedings against the President of the Supreme Court of Cassation, Lozan Panov, in which he is accused of threatening judicial independence by launching an inquiry into potential administrative malpractice by the Specialised Criminal Court of Appeal.
According to Vassileva: "Many fear that these proceedings are the beginning of the latest large-scale attempt to remove Panov from office," following longstanding harrassment.
In 2014, "Panov was hit by a car in mysterious circumstances," in 2017 he was confronted by masked men when entering the Supreme Judicial Council building, and in the same year the "bolts of his official state car were found to be loosened."
Vassileva argues that the institution Panov heads, the Supreme Court of Cassation, "is the only institution, which needs to be conquered before [the government completes] the capture of Bulgaria’s justice system."
This follows a series of other dubious judicial reforms in recent years that have been approved by the European Commission in its reports on Bulgaria's progress under the 'Cooperation and Verification Mechanism' (CVM), which was established in 2007 to ensure that Bulgaria and Romania meet EU standards on judicial reform, corruption and organised crime.
"Bulgaria’s executive is on the verge of completing its capture of the justice system. Meanwhile, the European Commission considers the judiciary independent in spite of the fact that Bulgarian high-ranking judges publicly complain from unacceptable pressure, and reputable organizations and civil society members raise concern that the situation is critical.
...Bulgaria may be a fully consolidated autocracy by the time the next European Commission is appointed [after the May 2019 European Parliament elections]."
Full article: Capturing Bulgaria’s Justice System: The Homestretch (Verfassungsblog, link) by Radosveta Vassileva.
Regarding Hungary, Renáta Uitz of the Central European University (which was recently forced by the Fidesz government to move from Budapest to Vienna) examines a new law (Verfassungsblog, link) introducing "a self-standing branch of administrative courts, nominally within the Hungarian judiciary, yet, placed under the direction of a separate, newly established Supreme Administrative Court (Közigazgatási Felsobíróság) alongside the existing Supreme Court (Kúria)."
This puts into practice an amendment to the Hungarian Constitution passed by the Fidesz government in June 2018, shortly after it returned to power with a two-thirds majority, and the new system "enables the packing of the Hungarian judiciary to the degree that the 2011 constitutional overhaul could not achieve."
The Minister of Justice will hold significant power over the composition of the courts, although it "is moderate compared to his powers over finances and case management."
This ministerial oversight "is not a hidden quality of the new regime, it is a stated feature of the institutional design chosen after careful comparative analysis," says Uitz.
She argues that:
"The design and establishment of the new Hungarian administrative judiciary provides insight into a new style of engineering illiberal constitutional democracy through dialogue with European constitutional actors. It is not simply the case that Hungary is undertaking judicial reform while the Article 7 TEU process is on its way. Rather, a new phase of judicial reform is passed under European supervision despite the clear threat it presents for the rule of law."
As an example, Uitz points to the December 2018 European Court of Human Rights (ECtHR) case J.B. and others v. Hungary (HUDOC, link), in which the applicants - a group of Hungarian judges and prosecutors - contended that rules requiring their early retirement were “a serious attack against the independence of the Hungarian judiciary as a whole.”
In the J.B. and others case, according to Uitz, the ECtHR "found the complaints of such judges and prosecutors inadmissible, because the applicants failed to establish with proper precision the severity of the impact this legislative measure had on their private life protected under Article 8."
The court thus sought "to ascertain the individualized impact of a large-scale judicial reform on the professional lives of judges," rather than dealing with the applicants' arguments concerning the Hungarian judicial system as a whole.
Uitz highlights that the ECtHR "repeated several times that the current regulation of judicial and prosecutorial retirement was shaped in the course of a dialogue with the Constitutional Court, the Venice Commission, the CJEU and the European Commission."
While previously the European Commission, Venice Commission, ECtHR and the Court of Justice of the EU have succesfully intervened to limit the damage wrought by the Hungarian government's judicial reforms, Uitz argues that by 2018 it was "part of the playbook to request the opinion of the Venice Commission on judicial reform, except that the law was passed before the Venice Commission could have a say on the bill."
Now, "to the extent the reform is carried out in dialogue with European constitutional actors, it appears to be shielded from criticism by a strong presumption of compatibility with the rule of law and human rights."
Indeed, a Commission "non-paper" from November 2018 (14022/18, pdf) containing "factual information on the values-related infringement proceedings in relation to Hungary" makes no mention of the seventh amendment to the Hungarian constitution that foresaw the new administrative court system.
It does however note that with regard to the lowering of the retirement age, the Commission brought a case to the CJEU and a judgment against the Hungarian government followed, leading to changes in national law and the Commission closing infringement proceedings in November 2013.
Full article: An Advanced Course in Court Packing: Hungary’s New Law on Administrative Courts (Verfassungsblog, link) by Renáta Uitz.
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