The Independence and Responsibility of Judicial Officers in Hungary

Abstract

In his work The Spirit of the Laws (De l'esprit des lois), published in 1748, Montesquieu formulated his doctrine of the separation of powers, which has remained influential to this day. He distinguished between the legislative power, the executive power in matters of international law, and the executive power in civil law matters, the latter essentially referring to the judiciary (Montesquieu, 1899, p. 151). “According to Montesquieu, the English monarchy functioned because several powers were set against each other, and the legislative and judicial powers were particularly safeguarded against the executive power, which embodies the greatest danger of power concentration (Csűrös, 2007).” Contrary to popular belief, however, it was not Montesquieu who laid the foundation for the three classical branches of power; Aristotle had already mentioned the council deliberating on public affairs, the magistrates, and the judiciary, which correspond to the trichotomy of legislation, execution, and adjudication. Aristotle considered politeia–a mixture of democracy and oligarchy–to be the proper form of governance (Cservák, 2022).

From the classical separation of powers, it follows that each branch inherently carries its own independence, while it must also be noted that “the three branches of power exercise their authority through multiple state bodies, and overlaps can be observed with regard to their competences (Cservák, 2015).

This leads to the legitimate question of whether judicial enforcement–particularly the judicial officer–is independent, and to which branch of power this activity belongs. This is further supported by the fact that “the judicial officer, during the enforcement of the law, is a public official or civil servant who does not act on behalf of the creditor but on behalf of the state, in the name of the public (Sőréné, 2023).”

This paper aims to analyze the key aspects of the institution of judicial enforcement, specifically the independence and responsibility of judicial officers within the Hungarian legal system. In my view, the enforcement system, which ensures the execution of enforceable court or notarial decisions, is indispensable for the functioning of the rule of law; however, the public authority powers vested in judicial officers require strict accountability.

The purpose of this study is to explore the theoretical foundations of independence and responsibility, and in this context, to examine the legal status of judicial officers and enforcement offices as defined by Act LIII of 1994 on Judicial Enforcement, taking their system of accountability as a reference point. The paper also investigates the relationship between the appointment and remuneration system of judicial officers, highlighting the potential impacts of performance-based compensation on independence. Furthermore, it analyzes the types and mechanisms of civil, criminal, and disciplinary liability of judicial officers, with particular regard to mandatory liability insurance, crimes of abuse of office and corruption, as well as the role of disciplinary courts.