Hungarian Courts at crossroads: Freedom or loyalty?
Orbán's struggle for complete takeover of Hungarian Courts continues
Just across from the Hungarian Parliament, another grandiose building is being renovated. For decades it was home for the Hungarian Museum of Ethnography. Hungarian GDP slumped, the inflation is soaring, but no money is spared from the renovation. The reason? The Kúria, our country’s supreme court, comes home. The Palace was purpose-built to house the Supreme Court of an Empire. Statutes are now being lifted off and taken to renovation. Iustitia on her six-horse battlewagon is set to return to the top of the building sometime next summer. The Kúria will move in maybe the year after. For me, a Hungarian lawyer practicing a block away from this building, this is just another symbol of political meddling with the courts in my beloved Hungary.
Hungary has some serious problems with rule of law. So serious indeed, that the EU (“the evil Brussels” in Hungarian government parlance) took formal legal action against the country. Billions of EU fundings are withheld until Hungary fulfills the EU’s “milestone” criteria.
An important milestone is the independence of the country’s judiciary. What led here? What are the problems? Are they solved? Who are the key personnel in this struggle?
Hungarian courts: Lingering shadows of the socialist bureaucracy
In a socialist country every single institution exists to uphold Socialism. Policemen don’t just catch thieves. They are there to guard the property of the People, and taking property by thievery is against the law and against Good Socialist Morals. As we were above and beyond capitalism (no capitals here) the courts did not have to deal with business and commercial law. They were one of the many institutions of the very intricate socialist bureaucracy.
Suing the state? What? The Government of the People? Come on comrade, you come with us now. Your wife will be notified. If you confess.
Those days are now over but a memory lingers. The Hungarian courts are still reluctant to decide in large business or commercial law cases. Most importantly they are still reluctant to deliver a large kick in the stomach when the government transgresses the rule of law.
Hungarian courts are still learning to be completely independent.
They also like hierarchy. The Hungarian judiciary is a neatly organized pyramid. On every level they like neat and cleancut judgments. They like to report success. Their leaders still report success as a true commie apparatchik: “We proudly report that 84% of the cases are closed within 6 months”. We proudly report that in 56,34% of the cases there is no appeal because of the level of our expertise and the wisdom of our judgments.
This is why I, a practicing lawyer, always have mixed feelings when I read about the struggles of Hungarian judges. But still. No shortcomings can justify attacks on their independence.
Attacks for a decade
The attacks started when with the freshly won ⅔ majority, Mr. Orbán’s ruling Fidesz party introduced a new system to govern courts. This included a troika.
1) The National Office for the Judiciary (Országos Bírósági Hivatal, OBH) is the administrative body of the Judiciary. Its president (a judge) decides on appointment and promotion of judges.
2) The Kúria (the Supreme Court) has the final word in legal matters just like any other supreme court.
3) The National Judicial Council (Országos Bírói Tanács, OBT) is an elected body from the judiciary. They act (should act) as a balance against OBH’s powers.
Mr. Orbán is not a fan of slow and subtle changes. His creed is all on attack. They changed the name of the Supreme Court to Kúria, so they could have a new president of the “new” court. Tünde Handó, the first president of the freshly minted OBH gave out decrees that could have made Dolores Umbridge vince. Rapid changes in court leadership were made. OBT did very little to stop this. But then OBT’s mandate expired and the new council got very active.
They started to voice harsh criticism against Ms. Handó and she was removed. She got selected to the Constitutional Court but that was just a coverup for her failure as president of the OBH. More importantly OBT began to lobby relentlessly against the political takeover…and they succeeded.
The EU starts to pay attention
With Poland’s judiciary having similar problems, groups in the EU Parliament and certain commissioners started to focus on judicial independence. This met with raving criticism of pro-Orbán judges. Andras Zs. Varga, the president of the Kúria issues regular rants on “certain judges” and appeals to “decent judges” to stop OBT. He refused to comment on the “decency” of judges later. His critics (me included) usually point out that Mr. Varga’s first appointment as a judge was the president of the Kúria. Formerly he was the deputy of Mr. Péter Polt, Chief Prosecutor and loyal supporter of Mr. Orbán. Ms. Handó and Mr. Varga are the symbols of the government’s intrusion to judicial independence.
A step in the right direction: the rise of the OBT
Rants and statements did not stop the EU from making the independence of the judiciary a milestone on the way to unlock EU funds that were frozen because of the rule of law concerns. And we are talking about a lot of money here, billions of euros.
The USA also gave sume subtle but stern warnings. Ambassador David Pressman toured all the important institutions and people after arriving to Hungary. But from the whole judiciary, he only received members of the OBT at the Embassy. This led to another furious rant from Mr. Varga Zs. and the government-controlled media, but the government started to realized that they have gone too far.
Without the EU funds Hungary’s economy fell into recession and inflation soared. So the government relented. OBT finally got proper powers and an independent budget. It can now veto appointments and promotions. But their mandate is about to expire again.
A crucial election
The election of the new OBT is crucial. A similarly active OBT can now serve as a check and balance. A passive one gives Mr. Orbán total control. The stakes are high.
Earlier this week Judge Péter Tatár-Kis, the president of the Budapest-Capital Regional Court sent a letter to his fellow judges. This court is the largest one in Hungary. Hundreds of judges work there.
According to the letter, although the voting is secret, judges are now supposed to have meetings in each department and announce their intention to be elected as deputies to the electoral board. The leaders of the departments shall preside in these meetings. These leaders were mostly appointed by Ms. Handó. Like Mr. Tatár-Kis, who also happens to be the brother-in-law of Zoltán Kovács, a government spokesperson and host of a pro-Orban podcast.
They play for the lingering memory of the Socialist regime. Contrary to the popular belief there were elections in Eastern Bloc countries back then. Only you had to publicly tell your boss how you wanted to vote. Chilling effect is the name of the game. One can just hope that it won’t be too chilly for most judges.
Two years from now, the Hungarian judiciary’s crown jewel, the old Kúria building will shine. Whether judicial indepence will shine as brightly as Iustitia’s sword on the new building will be decided this September. As a true Hungarian, I am not very optimistic about this…
Statues...statutes...ypos
Thanks for the resemblance between Hando and Umbridge (: