e. Denial of Fair Public Trial

The constitution and law provide for an independent judiciary. Courts often functioned independently, but attempts to exert political influence over the judiciary occurred. NGOs and international organizations continued to assert that laws on the judicial system adopted in 2011-13 contributed to weakened checks and balances by restricting the competence of the Constitutional Court, altering rules for electing Constitutional Court justices, and vesting the president of the National Office for the Judiciary (NOJ) with significant decision-making power. Government officials occasionally publicly criticized nonfinal court rulings.

By law, the Constitutional Court does not have competence to review potentially unconstitutional legislation with budgetary impact if the legislation is adopted when the state debt exceeds 50 percent of GDP. This limitation remains in effect for previously adopted laws, even if the state debt were to fall below 50 percent. The law provides that a committee consisting of members of party factions proportionate to their representation in parliament has the right to nominate, with a two-thirds majority, a Constitutional Court justice. A two-thirds majority in parliament must endorse a nominee in order to be elected as a Constitutional Court justice, whose term is 12 years. Prior to the governing coalition’s loss of its two-thirds majority in parliament in March 2015, the law allowed the governing parties the necessary two-thirds majority in both the nominating committee and the assembly. During this period, the Fidesz-KDNP majority elected 12 Constitutional Court justices. As of April 21, four of the 15 seats were vacant (including that of the court president) following the end of the terms of sitting justices. On November 22, parliament elected four new justices and a new court president to the Constitutional Court upon the joint nomination of the governing parties and the opposition Politics Can Be Different party.

On June 23, the ECHR confirmed in a final ruling that the dismissal of Andras Baka in 2011 from the posts of president of the former Supreme Court and president of the National Council of Justice violated his rights of access to a court and freedom of expression. The ECHR stated that the premature termination of the applicant’s mandate as president of the Supreme Court was not reviewed, nor was it open to review, by an ordinary tribunal or other body exercising judicial powers. According to the ECHR, this lack of judicial review was the result of legislation whose compatibility with the requirements of the rule of law was doubtful. The ECHR also concluded that the premature termination of his mandate was prompted by views and criticisms that he had publicly expressed in his professional capacity concerning the acts passed after 2010 that affected the judicial system. The ECHR noted that it was not only his right but also his duty as president of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary.

In December 2015 the International Bar Association’s Human Rights Institute (IBAHRI) released a report that concluded the independence of the judiciary and the rule of law were under threat. The IBAHRI report sharply criticized the nomination procedure for Constitutional Court justices and the reduced authority of the Constitutional Court. IBAHRI also concluded that the functions of the National Judicial Council were insufficient to oversee the activities of the president of the NOJ. IBAHRI expressed concern that the council was too weak to function as an independent body for judicial self-regulation as intended and that the Constitutional Court’s ability to protect the rights guaranteed by the constitution was restricted. IBAHRI also found the ombudsman interpreted the office’s mandate too narrowly when seeking to bring cases before the Constitutional Court. The Ministry of Justice rejected IBAHRI’s criticisms and asserted that the legal framework provided sufficient protections against potential direct or indirect governmental interference in the operation of the judiciary. On October 5, the Human Rights Council of the United Nations General Assembly formally adopted the Universal Periodic Review of Hungary, which included a recommendation that the government should implement reforms on judicial independence and rule of law recommended by the IBAHRI in 2015.

Government officials at times gave statements in their official capacities that were widely seen as attempts to influence judicial decisions and challenge the concept of judicial independence. In one example, on January 28, Bence Tuzson, state secretary for government communication of the prime minister’s cabinet office, publicly criticized a ruling of the Veszprem Tribunal, stating “the cabinet finds it outrageous that no one is held responsible for a case of such weight as the toxic sludge disaster, which claimed 10 human lives” in 2010. Tuzson stated that the cabinet “strongly urges” authorities to appeal the verdict because “the truth shall be revealed.” On January 31, vice president and deputy faction leader of Fidesz, Szilard Nemeth, announced that Fidesz was initiating a debate in the Justice Committee of parliament in connection with the toxic red sludge case and a high-profile misappropriation case involving the former Socialist deputy mayor of Budapest. Nemeth asserted that ordinary people were “justifiably outraged” by both verdicts and called the independence of judges a “liberal requirement.” No such meeting had taken place at the Judiciary Committee as of the end of November. On February 1, Peter Darak, president of the Curia, stated that “judicial judgement free from all external influence is under absolute constitutional protection, therefore statements suggesting contrary expectations undermine the foundation of a state governed by the rule of law.” He added that it was particularly important that the other branches of government refrain from such statements. On February 2, Tunde Hando, president of NOJ, also urged representatives of the other branches of power to respect the independence of judges.

During the year Transparency International Hungary (TI-H) repeated concerns expressed by the European Commission for Democracy through Law (Venice Commission) in 2012 in connection with “the high level of independence of the prosecutor general, which is reinforced by his or her strong hierarchical control over all other prosecutors.” TI-H criticized the right of the prosecutor general to give instructions to subordinate prosecutors in individual cases, to take over any case from any prosecutor, and to reassign cases to different prosecutors at any stage of the procedure without providing any reasoning. In addition, TI-H criticized the lack of an independent forum where decisions by prosecutors not to bring cases to court may be challenged. In July 2015 the Group of States against Corruption (GRECO) of the Council of Europe released a report expressing concern that the prosecutor general may remain in office indefinitely after the expiration of his or her nine-year term until parliament elects a successor by a two-thirds majority vote. According to GRECO, this procedure considerably increased the influence of politics in the selection of a prosecutor general (see section 4).

TRIAL PROCEDURES

The constitution and law provide for the right to a fair public trial, and an independent judiciary generally enforced this right.

Defendants are presumed innocent until proven guilty. Suspects have the right to be informed promptly of the nature of charges against them and of the applicable legal regulations, with free interpretation as necessary. Trial proceedings are public, although a judge may minimize public attendance and may order closed hearings under certain conditions. Trials generally occurred without undue delay. Defendants have the right to be present at their trial. Immediately after defendants are informed of the charges against them, they must be advised of their right to choose a defense counsel or to request the appointment of one. If the participation of the defense counsel is mandatory in the procedure, defendants must be informed that, unless they retain defense counsel within 72 hours, the prosecutor or the investigating authority will appoint counsel for them at public expense. If a defendant declares that he or she does not wish to retain counsel, the prosecutor or the investigating authority appoints counsel immediately.

The law stipulates that the investigating authority shall schedule the time of the interrogation in a way that enables defendants to exercise their right to a defense. In the trial phase, a summons for the court hearing must be delivered at least five days prior to the hearing. Defendants have the right to free interpretation as necessary from the moment charged through all appeals. During trial, defendants and their legal counsel have complete access to evidence held by the prosecution that is relevant to their cases. Defendants may challenge or question witnesses and present witnesses and evidence on their own behalf. The law states that no one may be compelled to provide self-incriminating testimony or produce self-incriminating evidence. Defendants have the right of appeal. These rights were extended to all citizens.

Human rights NGOs continued to criticize the legal measures available to authorities to prosecute and incarcerate juveniles under certain circumstances. The criminal code sets 12 as the minimum age at which authorities may prosecute juveniles for homicide, voluntary manslaughter, grievous assault, robbery, or plundering, but only if at the time of committing the criminal offense they had the capacity to understand its consequences. Under the rules, courts may not impose prison sentences on juveniles that were between the ages of 12 and 14 when allegedly committing the criminal offense, but they may order special measures, such as placement in a juvenile correctional institute. Pretrial detention for juveniles between the ages of 12 and 14 may not last more than one year and it is to take place in a juvenile correctional institute. For juveniles over the age of 14, the maximum length of detention is two years, and they may be placed in a juvenile correctional institute or penitentiary upon court decision. The law on petty offenses permits courts to incarcerate juveniles for up to 45 days; unpaid fines may also result in confinement. Rules on community service apply only to juveniles over the age of 16.

POLITICAL PRISONERS AND DETAINEES

There were no reports of political prisoners or detainees.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

By law, individuals or organizations may seek civil remedies for human rights violations through domestic courts. Individuals or organizations who have exhausted domestic legal remedies regarding violations of the European Convention on Human Rights allegedly committed by the state may appeal to the ECHR for redress.

e. Denial of Fair Public Trial

While the constitution provides for an independent judiciary and the government generally respected judicial independence, an increasing backlog of cases made the judiciary less efficient.

The court system remained cumbersome, poorly administered, and inadequately staffed. The consensus among local human rights NGOs was that the judicial system was improperly structured and inefficient, with a poor division of labor among different courts. Difficult hiring procedures created many vacancies among judges and support staff, and slowed the justice system. Judges were forced to do administrative work that staff would normally perform. Judges reported receiving an increasing number of cases, while the number of judges remained the same. A continuing backlog of cases and the high cost of legal action deterred many citizens from using the justice system.

On June 15, Nils Muiznieks, the Council of Europe’s commissioner for human rights, in a report of his visit to the country from February 9 to 12, expressed concern that a new law granting extensive powers to the minister of justice without the establishment of corresponding sufficient safeguards to avoid abuse of powers, poses “a considerable threat to human rights in the context of criminal law procedures, including the right to a fair trial, the presumption of innocence and the right to defense.” Another matter of concern to Muiznieks was the creation of a new department within the Prosecution Office responsible for prosecuting the most serious crimes committed by judges and prosecutors. He feared this reform’s “potential chilling effect of this on judges and prosecutors and the ensuing negative repercussions on the independence of the justice system.”

The country employs an “e-court” to adjudicate simple cases, which typically involve unpaid utility bills. A party may file a civil claim for monetary damages on the e‑court’s website, and a judge may issue a writ of payment based on the electronic submission. Defendants who dispute the judgment have recourse to a regular court for trial.

TRIAL PROCEDURES

The constitution provides for the right to a fair public trial, and an independent judiciary generally enforced this right. Defendants enjoy a presumption of innocence and the right to prompt and detailed notification of the charges against them, with free interpretation for defendants who do not speak Polish from the moment charged through all appeals. They have the right to a fair and public trial without undue delay and the right to be present at their trial. Trials are usually public, although the courts reserve the right to close a trial in some circumstances, including divorce proceedings, cases involving state secrets, and cases whose content may offend public morality. Defendants have the right to legal representation, and indigent defendants may consult an attorney provided without cost. The government must provide defendants and their attorneys adequate time and facilities to prepare a defense. They may have access to government-held evidence, confront and question witnesses, and present witnesses and evidence on their own behalf. Prosecutors may grant witnesses anonymity if they express fear of retribution from defendants. The prosecutor general may release to the media information concerning any investigation, except if such information is classified, with due consideration to important public interests. Defendants may not be compelled to testify or confess guilt.

After a court issues a verdict, a defendant has seven days to request a written statement of the judgment; courts must provide a response within 14 days. A defendant has the right to appeal a verdict within 14 days of the response. A two-level appeal process is available in most civil and criminal matters.

The law extends the above rights to all defendants.

POLITICAL PRISONERS AND DETAINEES

There were no reports of political prisoners or detainees.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

Individuals or organizations may seek civil remedies for human rights violations. The government’s implementation of court orders, particularly for payment of damages, remained slow, cumbersome, and ineffective.

After they exhaust remedies available in the domestic courts, persons have the right to appeal court decisions involving alleged government violations of the European Convention on Human Rights to the European Court for Human Rights.

The dispute regarding judicial appointments to the Constitutional Court continued throughout the year. In March the court struck down in its entirety the December 2015 law regulating its operations. The government boycotted the court’s proceedings and refused to publish the ruling as required by the constitution. The European Commission and the Council of Europe separately criticized the government’s actions. The Council of Europe’s European Commission for Democracy through Law (the Venice Commission) criticized the government’s refusal to publish the court’s ruling.

In July the government passed legislation regulating the court’s operations that addressed some of the Venice Commission’s concerns. In August the court struck down some provisions of the legislation in a ruling the government again refused to publish. In October parliament introduced additional legislation regulating the conduct, immunities, and discipline of court judges. Opposition parties, academic and legal experts, the Helsinki Human Rights Foundation, and other NGOs stated aspects of the legislation of December 2015 and July 2016 impeded the court’s operations and violated the constitutional principles of judicial independence, separation of powers, and checks and balances among the branches of government. The government argued it was working to resolve the situation and published all court rulings issued during the year up to July 20, except for the March ruling on the court legislation. In July the European Commission issued a rule of law recommendation for Poland criticizing certain aspects of the government’s July legislation, and the Venice Commission issued a new opinion in October along similar lines. On November 7, the Constitutional Court ruled constitutional the article from the July legislation altering the selection process of the chief justice. Three judges refused to participate in the hearing, and the ruling was issued by a five-judge panel despite the July legislation requirement of a full court panel hear all cases governing the operation of the court. The government had not published the ruling by year’s end. On December 19, the president signed a new law regulating the conduct, immunities, and discipline of court judges, and establishing new procedures for court leadership. On December 21, he swore in a new chief judge selected under the law’s new procedures. Also on December 21, the European Commission issued a complementary rule of law recommendation stating the new law addressed some issues raised in the July recommendation but that some rule of law concerns remained, and that the new law also raised new rule-of-law concerns regarding the effective functioning of the Constitutional Court and constitutional review of legislative acts.

PROPERTY RESTITUTION

The law provides for restitution of communal property seized during the Communist and Nazi eras, but the process proceeded very slowly during the year. By the end of September, the property commissions resolved 6,854 of slightly more than 10,500 communal property claims.

No comprehensive law addresses the return of or compensation for private property, but individuals may seek the return of confiscated private property through administrative proceedings and the courts. On August 17, the president signed into law legislation protecting Warsaw public properties from being returned to their precommunist era owners and extinguishing long-dormant claims after a six-month notice period if no claimant steps forward to pursue a restitution case. The legislation was intended to end abusive practices in the trading of former property owners’ claims but raised serious concerns that it fell short of providing just compensation for former owners who lost property as a result of nationalization of properties by the communist-era government. The Constitutional Court upheld the legislation, and the law entered into force on September 17.