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The Rule of Law and Administrative Justice in Hungary Abstract POLLAK Kitti National University of Public Service [email protected] The Rule of Law and Administrative Justice in Hungary Abstract The rule of law is a well-established state of public administration. Article B of the Fundamental Law of Hungary states that Hungary shall be an independent, democratic rule-of-law State. Administrative justice is part of the concept of modern definition of rule of law. The objective of this paper includes a general presentation of the current regulation of administrative procedure law and administrative justice in Hungary with a special focus on the realisation of individual rights in administrative procedures. As part of the Public Administration Reform in Hungary in 2016 a new Code of General Administrative Procedure and the first time in history a Code of Administrative Court Procedure were accepted. These codes entered into force on the 1st January 2018. In view these facts the first part of the paper is devoted to present the most important rules regarding administrative procedures in the new Code of General Administrative Procedure. Secondly, the paper presents the current legal remedy system of Hungary. These news codes includes fundamental changes in the regard of the legal remedy system too, in which not the appeal procedures, but the judicial review procedures over the adminsitration decisions became the mostly used legal remedy tool regarding the protection of individual rights in administrative cases. Moreover the paper aims to examine the realisation of administrative justice in Hungary in three aspects: first, the organisation of administrative justice in Hungary. Hungary is still facing big changes in this aspect. The Hungarian Fundamental Law already mentions: ”Courts are the ordinary and the administrative courts. Ordinary courts shall decide on criminal matters, civil disputes and other matters specified in an Act. The supreme organ in the ordinary court system shall be the Curia; the Curia shall ensure the uniformity of the application of law by ordinary courts, and shall make uniformity decisions which shall be binding on the ordinary courts Administrative courts shall decide on administrative disputes and other matters specified in an Act. The supreme organ in the administrative court system shall be the Administrative High Court; the Administrative High Court shall ensure the uniformity of the application of law by administrative courts, and shall make uniformity decisions which shall be binding on the administrative courts.” The Hungarian administrative courts system (the Administrative High Court and the administrative courts) is currently under realisation. Secondly the paper mentions the general rules of the judicial review procedures over the adminsitration decisions and we present a newly codified institution of the Code of Administrative Court Procedure, the Model Action. We believe that the legal regulation of the administrative procedures in terms of the rule of law is only relevant if the respect of the procedural rules is placed under the control of the administrative courts. With this in mind, the realisation of an independent administrative court system is indispensable in a modern, XXI. century rule- of- law state. Points for Practitioners The papers explains the main rules of the administrative procedures and judicial review procedures over administrative procedures in Hungary as the new codes: the Code of General Administrative Procedure and the Code of Administrative Court Procedure entered into force on 1st January 2018 and have fundamental changes. It also contains the latest Hungarian legal practice in the regard of the realisation of the protection of individual rights in administrative procedures. Keywords administrative justice, administrative courts, administrative decision, right to legal remedy INTRODUCTION1 The rule of law is a well-established state of public administration.2 Article B of the Fundamental Law of Hungary declares that Hungary shall be an independent, democratic rule-of-law State. Administrative justice is part of the concept of modern definition of rule of law. The objective of this paper includes a general presentation of the current regulation of administrative procedure law and administrative justice in Hungary. We should note that as part of the Public Administration Reform in Hungary in 2016 a new Code of General Administrative Procedure (Act CL. of 2016., the Hungarian abbreviation for this act is Ákr.) and the first time in history the Code of Administrative Court Procedure (Act I. of 2017., the Hungarian abbreviation for this act is Kp.) were accepted. These codes entered into force on the 1st January 2018. The paper firstly presents the regulation of administrative procedures with a special focus on the realisation of the individual rights such as the right to legal remedy. The paper explains the current legal remedy system of administrative decisions in Hungary. From the 1st January 2018, in the new Code of General Administrative Procedure - not the appeal procedures, but - the judicial review procedures over adminsitration decisions became the mostly used legal remedy tool regarding the protection of individual rights in administrative cases. Therefor the second part of the paper is devoted to the actual questions related administrative justice in Hungary. After a brief overview of the history and the constitutional basis of administrative justice in Hungary, we examine mostly current dilemmas related to the realisation of an independent administrative court system. I. REGULATION OF THE NEW HUNGARIAN GENERAL ADMINISTRATIVE PROCEDURE ACT First of all, we should emphasize that the first general administrative procedure act has been adopted relatively late in Hungary. From the beginning of the XXth century, several acts3 were adopted trying to codify the administrative procedure rules and create the Hungarian code of general administrative procedure rules. However the first GAPA was only adopted in 1957.4 In the ‘70s one significant amendment changed this Act: from 1972, the judicial review procedure was regulated in Chapter XX. of the Act III. of 1952 on the Code of Civil Procedure. In 1981, the Act IV. of 1957 was modified comprehensively by the Act I. of 1981. After ’89, according to the Decision of the Constitutional Court in 1990,5 the Parliament adopted the Act XXVI. of 1991 on the extensions of judicial review of the administrative decisions. This Act has established a system of two levels of review of the administrative decisions in official court proceedings regulated still in the Code of Civil Procedure.6 At the beginning of the new millennium, due to the socio-political changes in 1989, the importance of the new and improved international and European Union relations, the government of Hungary has set the objective of a complex overview of the general administrative procedures rules. After a long period of discussion, the Act CXL. of 2004 on the General Rules of Administrative Proceedings and Services (the Hungarian abbreviation for this Act is the Ket.) came into force on 1st of November 2005. In 2008, 2010, 2015 the Parliament substantially modified this Act to simplify the administrative procedures. Finally this Act was repealed with effect from 1st January 2018. From 1st January 2018 the new Code of General Administrative Procedure entered into force.7 This Code includes all general regulations regarding administrative procedures. The new regulation on the general rules of the 1 See: POLLÁK Kitti: Quo Vadis: Codification of Administrative Procedure Rules in Hungary and in France in: Juraj Nemec: 25th NISPAcee Annual Conference: Innovation Governance in the Public Sector. Konferencia helye, ideje: Kazan, Oroszország, 2017.05.18-2017.05.20. Bratislava: NISPAcee, 2017. 1-8. (ISBN:978-80-89013-96-8), POLLÁK Kitti: Judicial review of administrative decisions in Hungary in: Stanislav Kadečka – Jiří Venclíček – Jiří Valdhans (szerk.): ACTA UNIVERSITATIS BRUNENSIS:IURIDICA vol. 525., Brno: Masarykova Univerzita, 2015. 157-172., POLLÁK Kitti: The evolution of the possibilities for legal remedy in Hungarian administrative procedures in: Ladislav Vojaček, Pavel Salák, Jiří Valdhans (szerk.): Dny práva 2013 = Days of Law 2013: VII. International Conference „Days of Law”, Masarykova Univerzita, Právnická fakulta, Brno, 2014. 205-223. 2 See: MAYER, Otto: Deutsches Verwaltungsrecht, München und Leipzig, 1924. 28. 3 See for example Act XX. of 1901. on simplifying administrative procedures 4 This is the Act IV. of 1957 on the General Rules of State Administration Proceedings, which came into force on 1st October 1957 5 Decision of the Constitutional Court 32/1990.(XII.21.) 6 Several publications can be found in this topic, for example: TRÓCSÁNYI László: Milyen közigazgatási bíráskodást? Közgazdasági és Jogi Könyvkiadó, Budapest, 1992., PATYI András: Közigazgatási bíráskodásunk modelljei, Logod Bt., Budapest, 2002. 7 The new Act is Act CL. of 2016 on the General Administrative Procedure Rules (Ákr) administrative procedures can be divided into three parts: the first part regards the proceedings of first instance in front of the administrative authorities; the second part is the legal remedies and review procedures of the administrative decisions and the third part is dealing with the enforcement procedures. The new Code of General Administrative Procedure recodifies the most important general rules of administrative proceedings. Chapter I. of the code defines the fundamental principles – such as the principle of
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