In this chapter of Beyond Adjudication, I explore the relationship between Hungary’s supreme court — the Kuria — and the executive power, revealing a system where the formal principle of separation of powers is increasingly undermined in practice. The chapter opens with a brief history of administrative adjudication in Hungary to understand the position of the Kuria, that serves simultaneously as the country’s highest civil, criminal, and administrative court, with a specific College of Administrative Law uniting all judges handling administrative cases. The structure of the chapter follows the comparative framework established by the editors of the book, examining first how the Kuria influences the executive, and then how the executive influences the Kuria.
Kuria’s influence on the executive
On the one hand, the Kuria exercises meaningful control over the executive. It reviews the legality of administrative acts both directly — as a court of first and last instance in areas close to constitutional law, such as local government norm control and electoral disputes — and indirectly, as an appellate and a revision court. Since the entry into force of the Code of Administrative Court Procedure (CACP) in 2018, the Kuria also has a stronger toolkit for enforcing its judgments against non-compliant public authorities. The CACP now allows for substantial fines, the substitution of another authority to carry out an obligation, and even personal fines against the heads of administrative bodies in cases of repeated failure. The Torubarov ruling of the CJEU was also significant here, clarifying that due to the principle of effective judicial protection Hungarian courts have to be empowered to vary decisions issued in repeated procedures where the administration does not follow judicial instructions — a powerful sanctioning tool that was not available under the old rules (but has also been curtailed since then).
Beyond judicial review in individual cases, the Kuria also influences the executive through its competence to unify case law. It can issue uniformity decisions binding on all courts, conduct case law analyses and propose legislative action where judicial interpretation alone cannot resolve systemic problems, and — through its president — initiate abstract norm control proceedings before the Constitutional Court. The Kuria’s panels can also refer cases to the Constitutional Court and can refer preliminary rulings to the CJEU. The latter is a tool that is often used as an expression of judicial independence in itself, since it may be the only avenue for setting aside national legislation or case law contrary to EU law (see eg. the case C-525/23 [Oti]).
The executive’s influence on the Kuria
On the other hand, the executive exerts significant influence back over the Kuria, mostly through judicial administration. Hungary has gone through three models since 1990 which are shortly presented: the executive model, the judicial council model and the actual agency model in which the Kuria has an exceptional position as its president is exercising most powers of the president of the National Office of the Judiciary in the case of the administration of the Kuria.
Since 2011, the third model is centred on the National Office for the Judiciary (NOJ), which manages court administration centrally, with its president being elected by the National Assembly with a two-thirds majority — effectively placing this powerful position in the hands of whichever party commands a supermajority in parliament. The same applies for the president of the Kuria, who is entrusted with the administration of the Kuria. The supervisory body meant to control both presidents in their administrative functions, the Hungarian Judicial Council (HJC), has from the beginning been very weak, though its competences were strengthened somewhat in connection with the EU’s conditionality procedure. Even with these changes the HJC does not have sufficient powers to counterbalance the NOJ and the President of the Kuria.
The appointment process for judges raises further concerns. While a points-based system was introduced to address the excessive nepotism of the 1990s, the scoring criteria are still set by a decree of the Minister of Justice — who is no longer formally responsible for the administration of justice. The psychological aptitude test for judicial candidates is also administered by a commission appointed by the Minister of Justice. Taken together, these features carry significant reminiscences of the era when the Minister of Justice was directly responsible for administering courts.
In 2019, the so-called “limited precedent system” and the uniformity complaint procedure were introduced. They were presented as tools for legal certainty and the reduction of arbitrary judicial decisions. This marks an important shift in the relationship of the executive and the judiciary. These mechanisms — combined with a constitutional obligation under Art. 28 of the Fundamental Law for courts to interpret legislation primarily in accordance with its purpose — effectively pressure judges toward deference to the political majority rather than independent legal reasoning. Explanatory memoranda joined to the drafts of laws explaining the purpose of the single pieces of legislation are often mere political declarations of the ruling majority, turning the rule of law into rule by law. The concern is deepened by the composition of the uniformity complaint senate, led by the president of the Kuria, a structure that was reformed upon the criticism by the Venice Commission, but remains not optimal.
The incumbent Kuria president has systematically used his position to eliminate judicial autonomy in different ways. His very appointment was made possible only through special legislation, since he had not previously served as a judge, but was a constitutional justice — a political elect. This appointment accompanied by the protest of the HJC itself is a telling sign of executive overreach.
Although the separation of powers is formally enshrined in Hungary’s Fundamental Law, the system of checks and balances currently does not produce a healthy equilibrium. There is too much informal influence from the government over the Kuria through its president, and the Kuria does not sufficiently use the competences available to it to push back.
Posted by Prof. Krisztina Rozsnyai,
University ELTE, Budapest (Hungary)