Hungarian civil procedure law’s response to the Covid challenge

The Covid-19 pandemic, in the first quarter of 2020, posed unexpected challenges to public services worldwide, including the judiciary system. It took days to consider how to ensure the right of access to justice in changed circumstances, while respecting the principles of justice and, at the same time, limiting them as necessary. There was no time for great theoretical debates and comparative legal research; solutions had to be found quickly and effectively. The Hungarian judiciary was no exception to this, but two peculiarities could be observed there. When specific legislation was adopted by the government, the Supreme Court (Kúria) helped the lower courts interpret it in order to develop the correct jurisprudence. In addition, as a result of the Digital Courts Programme launched in 2018,

András Osztovits, ‚The future of judging in the digital world’ in Péter Darák (ed.), 150th Anniversary of the creation of Article IV of the Judiciary Act of 1869 (HVG-ORAC 2019) 141–146.

Every crisis is also an opportunity. Under the circumstances, digital solutions could and had to be tried out, many of which had been previously rejected by lawyers. This time, it was possible to see in practice what really helps the work of those involved in the administration of justice, and what cannot replace, for example, a personal presence in the courtroom. Even before the pandemic, the literature had already confirmed the view that the judicial and procedural systems of modern democracies were too rigid, outdated and inadequate to the changing socio-economic challenges of the twenty-first century.

The most complete summary of this idea is provided by Richard Susskind, Online Courts and the Future of Justice (OUP 2019)

In our study, we present, in chronological order, changes in Hungarian civil procedural law that occurred during the first three waves of the pandemic. In particular, we discuss the experience of e-trial, changes concerning injunctions in cases of violence between relatives, and changes in enforcement, bankruptcy and liquidation proceedings. In the conclusion, we take stock of developments that could help and enhance the right to justice for litigants in the aftermath of an epidemic.

Restraining orders in cases of violence between family members are one of the most sensitive civil law institutions, given that they treat domestic violence, an act usually considered to be a private matter, as public

Orsolya Szeibert, ‚From private to public: a decisive approach to domestic violence in Europe’ Családi Jog/Family Law [2015/2] 2; Declaration proclaimed by UN General Assembly Resolution 48/104

Thus, the aims of health protection against disease, and restraint of abusers against vulnerable persons, have competed amid the restrictions introduced during COVID. States have consistently identified the latter as their primary aim.

Krans B., Nylund A, et.al., ‚Civil Justice and Covid-19’ Septentrio Reports [2020] 445

The special nature of the procedure was already reflected in the rules of the extraordinary recess; per the decision of the President of the NOJ,

point V of OBHE Decision No 37.SZ/2020 (III. 17) on the performance of duties in litigation and extrajudicial cases during the extraordinary recess

There was no specific procedural provision on restraint cases; the “general procedural rules for exceptional measures”

Veir. Title 11 provision

The PK opinion also addresses the material requirements for both procedures that were mentioned above. It states that, as a consequence of the requirement of the right to a fair hearing, both written statements and hearings by electronic means can only be conducted if the parties can guarantee that they have the necessary material conditions and technology. Failing this, a personal hearing may need to take place.

It should be noted that restraint is also a measure restricting personal liberty, in relation to which, in the absence of any other means, procedural acts have to be carried out, even in a place subject to epidemiological measures.

Art. 22 (3) Veir.

Taking into account epidemiological restrictions is an additional task for both the police and the court, in that the epidemiological relevance of the parties has to be assessed during the procedure, and any change of residence for the person affected by the epidemiological restriction and its follow-up had to be verified.

Exemption Act §§ 221–222

It can be seen from the above rules that the epidemiological restrictions did not constitute an obstacle to the conduct and imposition of the injunction. The effect of the restrictions was felt by persons subject to the epidemiological restraint to the extent that the court and the police had to facilitate the implementation of the epidemiological restraints by providing appropriate information.

With legislative changes adopted prior to the Covid-19 epidemic, which were effective as of 1st March 2020, the legislator fundamentally overhauled the procedures for contact resolution and its implementation. In order to ensure enhanced and more efficient procedural guarantees, the enforcement of contact orders has been removed from the competence of the guardianship authority and transformed into a civil non-contested procedure under the jurisdiction of the courts.

Erika Harmat, Balázs Völcsey, ‘New non-contested proceedings in the jurisdiction of the courts: proceedings for the enforcement of a contact maintenance order’ (2020) 56 Családi Jog/Family Law.

An examination of fundamental rights affected by the Coronavirus Warrant restrictions, and the public perception of this issue, is presented in the Constitutional Court’s decision 3067/2021 (II. 24.) AB (hereinafter: AB), which concerns the annulment of a court decision on the enforcement of a contact order based on a constitutional complaint. In this decision, the AB weighed and examined the relationship between the right of access and the right to education; the right to protection and care of a child; and the right to health. The decision states that the most basic rule of epidemiological protection,

World Health Organization Advice for the public: Coronavirus disease (COVID-19) information (World Health Organization, updated 18 March 2023) < https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public> accessed 20 January 2023.

The requirement of equitable balancing based on the principle of proportionality in weighing these fundamental rights demands nuanced analysis. Among the aspects of the test, the AB has emphasised that the more specific the health risk, the greater its significance. Conversely, the more general, remote and abstract the risk is – based on subjective fears and assumptions – the less weight it can be given

Explanatory Memorandum to AB Decision 3067/2021 (24.II.), paragraph 37

It is worth making a summary of the issues discussed in relation to restraint and enforcement of contact in cases of family-member violence:

In restraint proceedings for intimate partner violence cases, the personal liberty of the abuser and the dignity of the abused, their right to life, their sexual self-determination, and their physical and mental health, are all assessed, and no account may be taken of restrictive measures. In the implementation of contact rulings, competing fundamental rights are substantially affected by the health risk, as set out above. The difference between the two examples is not only a matter of fundamental right; the different assessments are also justified by the manifestly different objectives of the two legal instruments. While in the case of restraint, the aim is the separation of persons, in the case of contact enforcement, the aim is to ensure personal contact between the child and the parent.

On the procedural side of the two legal instruments, the situation is less clear. The right to access to justice is paramount in the context of conducting non-contested proceedings for restraint of liberty. In a place subject to an epidemic measure during a public health emergency, procedural acts relating to measures restricting personal liberty must be carried out if there is no other way.

Art. 22 (3) Veir.

In many ways, the exceptional circumstances resulting from the virus situation have highlighted the strengths and weaknesses of the Hungarian civil justice system. The inflexible rules of civil procedure, the strong central administration, and the constantly changing legislation affecting the courts have been both a disadvantage and an advantage in adapting to the changed situation. Because the legislation in force did not allow courts to take the necessary measures at local level, even in individual cases, the need for legislative and central administrative action to respond to specific situations played a major role in the development of the often-contradictory rules discussed above. In a rapidly evolving emergency situation, it is natural that inconsistencies arise in the development of the rules. This leads us to the conclusion that, in the future, in order to prepare for any unforeseen crisis, it is advisable to leave flexibility in both procedural and administrative rules to facilitate the adaptation of the judicial system to unforeseen situations – for example, by including the necessary transition to e-trial in the transitional rules, or by allowing the declaration of a bar in individual cases in the Veir.

On the other hand, the centralised nature of civil justice was an advantage in emergency situations, because the same solutions were mostly adopted at national level, thus avoiding the situation of legal uncertainty that was observed in several European states that are organised under a federal system. Another advantage was that the courts were uniform in terms of technical equipment, IT systems and working hours. This meant that clients were not adversely affected by the court before which their case was pending. The conclusion can therefore be drawn from this emergency that the judiciary’s uniform technical structure and human resource management is an explicit advantage.

From a strictly legal point of view, despite the wealth of experience, the full consequences of the virus situation are still unforeseeable. From a substantive legal point of view, the civil justice system is predicted to be burdened by disputes arising from the emergency, such as disputes arising from business, tenancy, insurance or even family law.

The legislative measures taken to mitigate the economic and social impact of the crisis will also affect civil justice. From a procedural law perspective, electronic means have been given a prominent role. Scholars have pointed out that the dangers of advancing modern technology in civil justice are both unstoppable and necessary. The development of procedural rules, and IT solutions to provide adequate procedural guarantees, has become an urgent issue that cannot be avoided in the near future.

Perhaps even more important than this, the viral situation is a testimony to the need for civil justice to keep pace with the evolution of the world. The rules of civil law, and hence civil adjudication, must be an area of law that responds and adapts effectively to real-life economic and social changes. The coronavirus situation has fundamentally shaken up the concept of the case-law on which civil justice was based. We can hope that this was a one-off, exceptional event that will never happen again in our lifetime, or we can take it as a warning that calls for a change of approach in the civil justice system. Even the most carefully developed procedural background and the most sophisticated technical equipment cannot compensate if those involved in civil justice, including not only the judiciary but also lawyers, legal advisers, notaries, bailiffs and forensic experts, refuse to follow the path set by a changing world.

The virus has created a situation where it is as if we have leapt years forward in time in a matter of days. Our work has been done in front of screens from home, personal contacts have been made over the internet, the courtroom has moved into the digital space. We must use this insight not to try to block progress as effectively as possible, but to see how we can adapt our approach to the impact of what we have seen, so that we can put this progress at the service of effective justice.