Strasbourg, 8 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: Reply submitted by the delegation of Hungary
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
Can each individual judge choose his own style of drafting his decision?
The Code of Civil Procedure determines the essential obligatory elements of the decision (the identification of the court and the case, the name and address of the parties to proceedings, the decisive part of the judgment, the reasoning, the instruction on possible legal remedies etc.), but there are no specific mandatory models.
With respect to the above mentioned rules, the judge may develop his own style concerning the drafting of the judicial decision.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
The principle of majority rules the decision-making due to the composition of the court: either a single judge, or a judicial panel consisting of three members can administer justice. Therefore, none of the judges has priority or casting vote.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
All points within the scope of the claim or counter-claim must be dealt with.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
How in general terms is an appeal or Supreme Court decision drafted? Is the appeal in your country by way of rehearing the case or not?
The first instance decision is drafted generally in the following logical order: the first part contains the decisive resolutions (the judgment itself), the second part consists of the reasoning (description of claims, factual situation based on the evaluation of evidences, application and interpretation of the relevant substantive and procedural rules).
The appeal (cassation) court decision is drafted generally in the following way: the first part contains the decisive resolutions regarding the claims formulated in the appeal or in the petition for final review, while in the second part the court gives its explanations in the reasoning (description of the points of the appeal or the petition for final review, reconsideration of the contested part of the decision in the light of the evidences, arguments submitted by the parties).
In principle, the appeal courts have competence for full revision and rehearing with respect to the limitations prescribed by the Code of Civil Procedure concerning the modification of the claim or submitting new evidences.
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
No, the structure of judicial decisions in civil, criminal and administrative cases is basically the same.
Could you describe precisely how the decision is transmitted to the parties?
Is the judicial decision binding only on specific litigants or does if affect the public in general?
Does your country acknowledge a difference in judicial decisions in personam and in rem?
The decision is announced publicly at the end of the trial and it is put into written form within a certain time limit. The written decision is transmitted to the parties via postal service.
The final and non-appealable judicial decision establishes res judicata and it has an erga omnes general binding force.
The Hungarian judicial system does not acknowledge any difference regarding in personam and in rem judicial decisions.
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
The enforcement of judicial decisions is exercised - at the request of the litigant - by the first instance court with the assistance of the bailiff.
The Hungarian legal system does not know any contempt proceedings in the matter.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded – if so on what grounds?
The judicial decisions are always announced in open court, even if the public has been previously excluded from the hearing of the case. The procedural rules strictly determine the cases when the public or the journalists can be excluded from the trial by the order of the court, e.g. in criminal cases on grounds of the protection of the State’s or the victims’ interests, or in civil cases on grounds of the protection of business secrets or privacy. Moreover, the judge may consider to exclude the public in order to protect the dignity of the court, or to apply the exclusion as a sanction against persons disturbing the proper functioning of the court.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ name, other personal details etc)?
The protection of personal data is ensured and regulated by the Act LXIII of 1992 on the Protection of Personal Data and the Disclosure of Information of Public Interest. The courts fully respect the provisions of the Act, therefore the published court decisions do not include any personal data.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
The judicial decisions are available to other persons or authorities upon their requests in cases when the president of the court concerned grants his/her permission and such requests are reasoned by private or public interest.
Are judicial decisions published/available on the Internet? If so, are all decisions available or only appeal or supreme court cases?
In accordance with the Act XC of 2005 on the Electronic Freedom of Information, the judicial decisions of the high appeal courts and of the Supreme Court, thus the so called anonymous decisions are available to the public without references to personal data on the Internet from the 1st of July 2007.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
According to Chapter III of the Act LXVII of 1997 on the Legal Status and Remuneration of Judges, the performance of judges shall be evaluated at the intervals, under the conditions and for the reasons specified in this Act.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
Yes, the evaluation is mainly based on the examination of the quality of judicial decisions.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter: legal basis, identification of the agencies that are responsible for the process, parameters that are evaluated, methods by which each parameter is evaluated?
The rules and criteria of the evaluation process are laid down in the Act on the Legal Status and Remuneration of Judges, as well as in a directive adopted by the National Council of Justice.
Please find hereunder Chapter III of the above mentioned Act which contains the necessary procedural provisions regarding the evaluation of a judge’s performance:
(1) The performance of judges shall be evaluated at the intervals, under the conditions and for the reasons specified in this Act.
(2) The sentencing practices of a court executive shall be evaluated in accordance with this Act when ordered by his superior.
(1) Evaluations shall include an inspection of the material, procedural and administrative aspects of the activities of a judge.
(2) The inspection shall concern cases concluded definitively.
(1) An evaluation shall be ordered by the president judge of the county court when it concerns a judge of the local court or county court, by the president judge of the high court of appeal when it concerns a judge of the high court of appeal, or by the Chief Justice of the Supreme Court (hereinafter referred to collectively in this Chapter as "president judge") if it concerns a Justice of the Supreme Court.
(2) The judge affected shall be notified in writing when the evaluation is ordered.
(3) The inspection shall be conducted by the president judge or by a judge he has appointed.
(1) The performance of a judge appointed for an indeterminate term shall be evaluated on two occasions following his appointment at six-year intervals. If the appointment was made in accordance with Subsection (2) of Section 11, the judge's performance shall be evaluated within three years following his appointment and on two more occasions after that at six-year intervals.
(2) Apart from what is contained in Subsection (1), the performance of a judge shall be evaluated if
a) a motion has been lodged to declare the judge unsuitable [Paragraph a) of Subsection (2) of Section 54],
b) requested by the judge himself.
(1) The inspection and the evaluation must be completed within sixty days from the date when ordered.
(2) The person conducting the evaluation of a local judge shall hear the opinion of the president judge of the local court in question.
(3) The president judge shall evaluate the performance of a judge for all aspects. Where a judge of a local court is concerned, the opinion of the president judge of the local court shall also be taken into consideration.
(4) The NJC shall stipulate the rules for selecting the cases to be used as the basis for the evaluation as well as the detailed conditions of the inspection.
The judge affected shall be given a copy of the written evaluation at least fifteen days before the results of the evaluation are presented. The presentation shall be attended by the president judge who ordered the evaluation or his deputy, the judge inspected, the judge conducting the inspection, the head of the competent division, and the president judge of the court in which the judge works. The inspected judge may present his views verbally or in writing before the evaluation is presented.
(1) All of the findings of the evaluation must be supported by sufficient evidence.
(2) As a result of the evaluation, a judge may be rated
b) suitable, or
(3) If the inspected judge disagrees with the rating determined under Paragraph b) of Subsection (2), the entity ordering the evaluation shall, at the judge's request, obtain the opinion of the division.
(4) If a judge is rated unsuitable, he may seek remedy at the court unless it is overruled by the competent president judge within fifteen days from the date when the evaluation was presented.
(1) If there is any reason to indicate that a judge is unable to function as a judge for an extended period of time, the president judge of the court shall make a written request for the judge to resign from office within thirty days. The notice shall specify the reasons that serve as the basis for the judge's unsuitability.
(2) If, upon receipt of the notice referred to in Subsection (1), the judge refuses to resign,
a) in the case of technical reasons, a special evaluation shall be conducted,
b) in the case of health reasons, the judge shall be required to take a medical examination (Section 5), and further steps shall be taken accordingly.
(1) If a judge is compelled pursuant to Section 54 to resign for health reasons or if the judge is relieved from office for medical reasons, he shall be paid nine months' salary if he has served as a judge for less than ten years or thirteen months' salary if he has served as a judge for more than ten years.
(2) The payment referred to in Subsection (1) payable to a judge relieved from office for medical reasons shall not be provided if the judge is eligible for pension benefits in his own right.
(1) The performance of judges assigned to the Supreme Court shall be evaluated by the Chief Justice of the Supreme Court.
(2) The performance of judges assigned to the NJC Bureau shall be evaluated by the director of the Bureau.
(3) The performance of judges assigned to the ministry shall be evaluated by the minister in charge of the judicial system on the basis of the rules governing public officials.
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
The current evaluation system concerning the performance of Hungarian judges was introduced in 1998. Since then, neither the National Council of Justice, nor any other judicial organization has performed the overall evaluation of the experiences as regards the evaluation system. Therefore, no data is available in the matter to measure the advantages and the drawbacks of the system.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
The reduction of the heavy workload in first and second instance courts, the delegation of non-judicial and mainly administrative tasks to other court employees, as well as the introduction of a more effective initial and continuous training provided for the judiciary may contribute to improve the quality of judicial decisions.
Is a system of evaluation of quality of each of the following in force in your State: professional performance of police, professional performance of public prosecution services, professional performance of lawyers, enforcement of judgments, efficiency of ministry of justice services in general, quality of legislation?
Integrated evaluation systems in the field of legal professions are only applied in regard of judges and prosecutors, meanwhile there is no specific evaluation process elaborated for any other legal practitioners. The performance of public prosecutors is evaluated in a similar manner to that of judges.