Access to law and Legal aid

3.1. Legal aid

In communist times law might not have played the central role in people’s lives that it does now, but legal consultation was provided for everybody.

Representation by a lawyer in civil court was not required, and requests for public defense in serious criminal cases were granted.

Nowadays, all parties in court have to be represented by a lawyer. Except for labour or family cases, the claiming party has to pay a court fee in advance.

Legal aid for lawyer and court fees are granted to the very poor after passing an income test, even though many more people would need to consult lawyers for the many problems related to new regulations, housing problems and unemployment .The court has to apply a merits test to determine whether legal aid can be granted. In the end, all court and lawyer costs have to be covered by the losing side. In criminal cases, the court will nominate a public defender (kirendelt védd), with the state covering the costs.

Except for the activities of some NGOs, there is no legal aid for out-of- court consultation.

Table 3.1.: Expenditures for legal aid Source: Office of the National Council of the Judiciary.

3.2. Non governmental organizations (NGOs)

Hungary has about five NGOs active in monitoring the rule of law. All of them are seated in Budapest including the Hungarian Helsinki Committee (HHC), the Hungarian Civil Liberties Union (HCLU), the Legal Defence Bureau for National and Ethnic Minorities (LDBNEM), and Roma Rights Foundation (RRF). For financial reasons and to operate more effectively they divided their target issues. The HHC is involved with refugee cases, the HCLU is involved with the rights of (psychiatric) patients and the LDBNEM and RRF are involved with the rights of ethnic minorities [Fridii, 1997].

Another field of activities has been access to public information.

Information is only given by the state when lawyers explicitly refer in their claim to the Act on the Right to access to public information of the year 1992.

But even then, authorities like to use tricks to get rid of lawyers, like maintaining that ‘the archive is closed’ or ‘the notes are not ready yet’. In concrete cases this is a matter for the courts to decide. The fact that ‘access to public information’

had to be explained to the authorities illustrates the problems of effectively implementing the many new laws [Int. Tari and Muhi].

Next to these NGOs there are some national watchdog organizations sponsored by the State. An organization for medical patients, HCLU, deals with the costs of hospitals, treatments and medicine. They are represented in hospitals and enjoy an advisory status with the government, advising on draft laws, and presenting comments before Parliament.

NGOs operating in the field of legal consultation are not more than small working groups of five to ten persons, mostly young trainees, recently graduated from the university. Most of them work voluntarily or are affiliated part-time with these NGOs. They collaborate with a network of legal aid lawyers and represent cases in court, because according to the law only lawyers may defend a case in court. In cases of police arrest, the police authorities appoint a lawyer.

NGOs, however, may not officially be appointed, because the Hungarian Bar Association is monitoring its monopoly and will give a disciplinary punishment to lawyers who work under the name of organizations.

Nevertheless, the cooperative networks of NGOs are growing. MPs have the right to hear NGOs when legislation is being prepared. The Ministries involved regularly organize a hearing to which the relevant NGOs are invited. In cases of national and ethnic minorities NGOs collaborate with the representative of the so-called minority self-government. The LDBNEM has supported the Ombudsman for the Rights of National and Ethnic Minorities in his efforts to improve the poor infrastructure of the hamlet Istvánmajor in the council of Emöd inhabited by citizens of Polish origin. The HCLU has collaborated with the Ombudsman for the Protection of Data and Freedom of Information in order to prevent the police from consulting the files of drug users and psychiatric patients without legal grounds. The HCLU has also addressed the Constitutional Court, sent in law initiatives and organized press campaigns.

In addition to providing a wide range of citizens basic information on where to go for legal services, NGOs felt a special need for activities in closed institutions such as hospitals, mental institutions and prisons. By providing medical patients information about their rights, propagating free abortion and rights to euthanasia, and demanding free speech and free information for inmates, the HCLU could exert some pressure on official policy. In May 1997, the Hungarian parliament passed Law No. XLII/1997 on the processing and protection of medical and related personal data. On the other side, the law grants patients access to their own medical data and the right to request a second opinion. Another result of their activities has been that drug users who consent to treatment of at least six months may not be prosecuted [Int. Helsinki Fed.,

1999].

The success of NGOs is largely determined by their financial means, political contacts and interest of the media. International contacts are often crucial, as the sensitivity of the authorities to campaigns by Human Rights Watch and the Hungarian Helsinki Committee has repeatedly demonstrated.

IV. Courts

National Judiciary Council [Országos Igazságügyi Tanács]

Since October 1, 1997 the National Judiciary Council, an independent organ, supervises the organization of the judicial system, the administration of the courts and the budget of the judiciary. Because of the NJC, the independence of judges is strongly institutionalized. Hence the Ministry of Justice will basically only be involved in legislation, like amendments concerning the entire civil law code, and the judicial preparation of Hungary’s accession to the EU.

The NJC consists of 15 members. Its president will be the president of the Supreme Court who is elected on the recommendation of the President of the Republic by a two-thirds majority vote of all members of parliament, for a period of six years. Nine members will be elected by the courts through

delegates: the Minister of Justice, the Chief Public Prosecutor, the President of the National Bar Association, and two members of Parliament (appointed by the Constitutional and Juridical Committee, as well as by the Budget and Financial Committee) are ex-officio members of the Council.

The principal functions of the NJC are:

- t o prepare and submit to the Government its proposals concerning the next annual budget with respect to the courts. Should the bill on the budget, prepared and submitted to Parliament, differ from the proposals of the NJC, the Government shall indicate in detail the original proposals of the Council, stating the reasons for not accepting them;

- t o appoint and dismiss the presidents of the high courts of justice and the regional courts, as well as the vice-presidents, the heads of the colleges, and the heads of its own Office;

- to orient and control the administrative activity of the court presidents;

- to determine the principles of the organizational and functional regulations of the courts and to approve the organizational and functional regulations of the high courts of justice and of the regional courts;

- t o create regulations binding to courts, to make recommendations and to supervise their implementation;

- th e President of the NJC submits a report to Parliament every year on the overall situation of the courts and the activities of the Council.

Court system

Before the Second World War Hungary had a four-tier court system. From bottom to top: local [járás], county [megye], higher court of justice [ítélőtábla]

and supreme court [kúria]. During the communist period the Higher Court of Justice was abolished . At present, there is a three-tier court system. At the local level there are 111 local or city courts dealing with civil and criminal matters [helyi bíróság] and 20 labour courts. The second level is a network of 20 regional courts [megyei bíróság], including the Metropolitan Court of Budapest.

Primarily they hear appeals lodged against the decisions of the local courts, but in cases specified by the laws of procedure, they act as courts of first instance.

The Supreme Court (a legfelsőbb bíróság) reviews court petitions on their legal merit [Council of Europe, Nat. Report, Hungary, 213-219]. It also carries out the task of conceptually guiding lower courts.

The workload of the courts has increased substantially during the past decade. At the local and regional court level (i.e. civil courts, labour courts, social insurance courts, fiscal courts, adminstrative courts, criminal justice) the number of incoming cases rose from 296,812 in 1990 to 344,990 in 1995 [Office of the National Council of the Judiciary],

Table 4.1.:Civil courts: number of incoming cases, decisions and appeals

ségi óvás) (1980, 1990) which were dependent on the discretionary power of the Supreme Public Prosecutor. Since 1995 they are requests for revision (felülvizsgálati kérelem). See Act No. LXVIII of 1992.

Table 4.2.: Labour law cases: number o f incoming cases, decisions and appeals

1980 1990 1995

Source: Office of the National Council of the Judiciary

1. Cases of protest of legality (1980, 1990), resp. request for revision(1995).

Table 4.3.: Social insurance cases: number o f incoming cases, decisions and

Source: Office of the National Council of the Judiciary

Although budgets allocated to the administration of justice have increased somewhat over the last few years, there is still a widespread shortage of both

staff and material [Council of Europe, Nat. report, Hungary, 171]. With the working conditions at courts still lacking efficiency, judges who were often at a loss with complicated new subject matters, and parties using appeals more often (two levels of appeal and revision were offered by the system since 1990), complaints about the slowness of judicial procedures abounded.

In order to reduce the workload of the courts and to establish clear lines of authority, the Horn government (1994-1998) planned to introduce an additional level between the county courts and the Supreme Court. The former government decided to establish a level including four High Courts of Justice ( ) in order to take over the appelate functions of the Supreme Court and allow it to concentrate on issues of legal principle. So far, however, qualified judges for such High Courts were not available. The present Orbán government considered it better to postpone the issue [Népszabadság, 1999, 28 May; 1999, 1 June].