Whether the legislator prefers a one- or two-level administrative procedure, or whether the legal remedies available upon request are internal (appeal) or external (judicial review/administrative lawsuit), is always determined by the general needs of society and the views of the political elite in power. Generally speaking, where there are two levels of administrative procedure, i.e. where there is a single level of appeal, recourse to the courts is generally guaranteed once these levels have been exhausted. In Hungarian administrative law, from 1957 until the 2010s, there was a one-tier system of appeal, i.e. appeals were considered ordinary legal remedies and judicial review was available after the exhaustion of the appeal, if the law so allowed, i.e. judicial review was considered an extraordinary legal remedy.
Key words: Legal remedies, appeals, judicial review, administrative proceedings
Introduction
All the Hungarian procedural codes preceding Act CL of 2016 on the General Administrative Procedure (hereinafter: Ákr.) regulated appeals as an ordinary remedy, i.e. client could appeal against administrative decisions in order to redress their alleged or real rights or interests, unless the law provided for an exception. The formal and substantive requirements for appeals hardly changed between 1957 and 2010. After 2010, however, a significant reform of administrative law and organisation began, as a result of which – still under the Act CXL of 2004 on the General Rules of Administrative Procedure and Services (hereinafter: Ket.) – the possibility of appeals was gradually narrowed down, until finally the Ákr. classified it as an extraordinary legal remedy. The content and scope of the judicial review against the appeal has continuously changed and expanded over time, a process which has led to the Ákr. now regulating administrative lawsuits as ordinary remedies.
1. Regulation of legal remedies upon request in previous procedural codes
1.1. Act IV of 1957 on the General Rules of State Administrative Procedure (hereinafter „Et.“)
The first domestic code covering all the general rules of all administrative procedures was the Et., which entered into force on 1 October 1957. The Et. contained detailed rules of general administrative procedure, including legal remedies. The procedures for appeals were regulated in several chapters, with appeals being regulated in a separate chapter.[1] The Et. distinguished between remedies available on application and those available ex officio. It regulated appeals, complaints and court actions as remedies available upon request.[2]
The Et. was intended to introduce a two-tier system of state administrative procedure in the matters covered by it, but by regulating the complaint it essentially implemented a three-tier system of legal remedies. As a general rule, the Et. provided for the possibility of appeal against all first-instance administrative decisions on the merits. In the system of legal remedies under the Et., appeals were therefore the ordinary means of redress. The Et. allowed appeals to the courts only in a limited category of cases. An appeal could only be brought if expressly permitted by law, decree-law or Council of Ministers‘ order. In addition, an action could only be brought if the right of appeal in the case had already been exhausted. The court action was therefore an extraordinary legal remedy.[3]
Appeals and complaints could be lodged on grounds of both infringement of rights and infringement of interests, whereas actions could only be brought on grounds of infringement of the law. An appeal was possible against a decision of the first instance on the substance of the case which was not a final decision of a formal nature. However, there was no right of appeal against the substantive decision of the second instance. Appeals could also be lodged against decisions which were not decisions on the merits and could be appealed independently, known as ‚interlocutory decisions‘. While an appeal against a decision on the merits had suspensory effect on the enforcement of the decision, an appeal against an interlocutory decision had no suspensory effect on enforcement. By way of exception, the law could also allow immediate enforcement to be ordered in the case of an appeal against the decision on the merits. [4]
The Et. also contained rules excluding appeals, under which an appeal was excluded if it was excluded by law, decree-law or decree of the Council of Ministers, and if the Council of Ministers or a member of it acted in the first instance.[5]