The next victim: the judiciary system

For about a week there have been rumors that "there might be changes in the composition of the judiciary." First there was talk about the chief justice of the supreme court, András Baka. Commentators considered the renaming of the supreme court to "kúria" an opportunity to get rid of Baka, a László Sólyom nominee. Then came news about a possibly much more sweeping change. Magyar Hírlap reported that in the new constitution there might be a provision by which any judge who served as a judge before 1989 would be dismissed. In another version of the rumor all current judges would have to reapply for their jobs and in each case a decision would be made about his or her acceptability. Surely, on political grounds.

As it turned out, the rumors were not quite accurate. The lawmakers are contemplating a paragraph to be included in the constitution that would lower the compulsory retirement age of judges from 70 to 62. That would mean that 6-8% of all judges would have to retire.

It is possible that the earlier reports on recalling all judges who served in the old regime were actually accurate but that the "careful and wise" lawmakers subsequently realized that 72% of all current judges were appointed to their posts before 1990 and getting rid of 72% of all the judges would be too drastic even for the Orbán government.

Then came the latest move to reduce the retirement age. While everywhere in the developed world the retirement age is being raised due to demographic changes and while, for example, the retirement age for Hungarian prosecutors remains 70, the judges with the most experience must retire at a ridiculously early age. All that because Viktor Orbán finds the courts and the judges still far too independent. The prosecutors have been willing accomplices of Fidesz in the last ten years or so; now Orbán wants to have "fresh Fidesz blood" injected into the judicial system.

The news hit the judges hard. As András Baka said today, "there is great unease and indignation among judges" as a result of the latest suggested addition to the text of the new constitution. Baka added that "they all worry about the independent judiciary, which is the basis of democracy." And, practically speaking, as a result of this new law about 300 judges who are handling thousands of cases at the moment would be fired. These cases would have to be passed on to someone else. The whole procedure would further slow down court procedures that are sluggish enough as it is.

Baka pointed out that in 1990 90% of the judges were under the age of 55, which precluded their active participation in the illegal activities after 1956. In 1990 parliament decided that the judges even in the second half of the Kádár regime did a creditable job given the circumstances. If that was the case in 1990, why it is necessary now, twenty years later, to review the Hungarian judiciary "on political grounds?"

Yesterday in committee István Balsai (Fidesz) announced that the original suggestion to lower the retirement age to 62 might not be entirely satisfactory. According to him "a new element" of the question surfaced and therefore the amendment must be reworked. Most people suspect that the "new element" is Viktor Orbán's insistence on getting rid of Chief Justice András Baka under any circumstances, and Baka is only 59 years old.

Apparently the leading judges of the Supreme Court are inclined toward compromise: to work out the problem with the government. I personally think that if Viktor Orbán decides that he wants to get rid of someone then there is no compromise. He will not move an inch. The other possibility is to bring the dirty linen to an international forum, the European Network of Councils for the Judiciary.

About András Baka. I wrote about Baka a lot in the past. Not so much about his career and judicial philosophy but about László Sólyom and his obstinate way of appointing officials. Sólyom refused to inquire from the parliamentary parties whether his nominees were acceptable to them. As a result he often fell on his face. His original nominee for the post of the chief justice was András Baka, who wasn't even recommended by the fourteen-member National Jurisdictional Committee because of his lack of experience in Hungarian jurisprudence. He had spent seventeen years as one of the judges of the European Court of Human Rights. The rejection of the Council didn't deter Sólyom, who went ahead with the nomination. Needless to say, Baka was rejected by parliament.

After trying another candidate twice, Sólyom came back with Baka a year later; with the reluctant support of MSZP he was elected to be chief justice. That was in the summer of 2009. Now it seems that András Baka will most likely not serve out his term that ends in 2013. If he is too young, I'm sure Viktor Orbán will find some other way of getting rid of him.

For the time being Baka and his fellow judges seem to be in a fighting mood as are some others who are under attack without any justification. One of the accused in the Sukoró land deal is quite openly talking about the political pressure put on him to testify falsely against former prime minister Ferenc Gyurcsány. More and more people compare the present situation not to the Kádár regime but to the horrific days of Mátyás Rákosi. Fortunately some of them are standing up and refusing to play the government's game. I can only applaud this civil courage.

 

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Kirsten
Guest

“For the time being Baka and his fellow judges seem to be in a fighting mood as are some others who are under attack without any justification.”
I suppose it is the parliament that has the right to reduce their retirement age, the enforcement is supposedly the task of the police but any dispute would have to be handled in a court which needs judges. Mutt suggested that there are sufficient people around that would step in, so there could be enough Fidesz-supporting judges to do the job. In this case I am not sure whether the judges can succeed in stopping OV as there is no further instance to turn to. And the reduction in the retirement age does not go against fundamental rights of people, so sending this to the European Court of Justice may not help either. But I hope nevertheless that their resistance will mean trouble for OV. In the worst case the opposition would attract new people…

Ron
Guest

I found another interesting article about the ethical conduct of judges in Hungary, compared to the USA and Germany. It is all based upon the 1997 Statute and the constitution. Is this still applicable?
http://www.euractiv.com/en/enlargement/does-hungary-need-a-code-judicial-ethics-analysis-199891

Eva S. Balogh
Guest

Kirsten: “And the reduction in the retirement age does not go against fundamental rights of people, so sending this to the European Court of Justice may not help either.”
Orbán is a clever bastard.

Member

“Kirsten: “And the reduction in the retirement age does not go against fundamental rights of people, so sending this to the European Court of Justice may not help either.”
Orbán is a clever bastard.”
I am not so sure about that. If it only applies to a certain group of people under frivolous specs, it is a human right issue. Of course you do not want older people to drive public transportation vehicles, but that concern is based on a totally different set criteria. If older people are competent to mend countries and participate in politics, I do not see a reason that judges should be declared incompetent based on their ages. If it has to do with their mental capability that criteria needs to be set and determined by qualified individuals (medical professionals, etc.) I remember when a certain party The membership had an upper age limit of 35 years (this requirement was abolished at the 1993, when the party leader stepped into his 30th year, and thought that time moves faster even for him than he anticipated. THat is not a human right issues as it is a party membership based on certain criterias.

GW
Guest

Forcing early retirement on these judges may well be more difficult than the government thinks. Age discrimination has become recognized in the EU and can only be tolerated when broader employment concerns are operative; in this case, since it’s such a small number of people that would be affected so that such a broad employment goal cannot be used to justify any layoffs based on age. Further, the judges presently employed have employment conditions that are likely to be grandfathered, that is, the terms of their employment with regard to tenure should not be able to be retroactively altered. If, however, the government succeeds in altering the terms retroactively, then (a) those affected will have to be compensated in terms consistent with their original employment contract (for example: full pay and benefits until the original end of there employment) and (b) it will establish a useful precedent for future governments saddled with the lengthy terms the present government has handed out to so many “independent” agencies.

Ron
Guest

Orbán is a clever bastard.
He and you believe he is clever, but actually his incompetence, because he did not do a decent job in his life, is catching up.
If he force the retirement age for judges to 62, he needs to do this also for Supervisory Board members and management of companies.
Normally, companies appoint to these positions, people who have run companies for years, and therefore, have a lot of experience.
You cannot say to the judges please leave at 62 and left the Supervisory Board members at 70. That is age discrimination in a similar type of profession, and the EU never allows that.
If Orban also reduce this age limit, how many family companies (normally the motor of the economy) will stay in family hands?
How many foreign companies will come to Hungary if they cannot appoint Supervisory Board members who they trust.
Anyhow I expect that when the EU takes over the pension age goes up to 70. But by than Orban has nothing to say.

Kirsten
Guest
When I wrote that, I was thinking that judges are public employees (even if hopefully acting independently) and the parliament should be the main place to determine the rules for state employees. I cannot see why they could not decide on a specific retirement age for state employees because this affects public money. If it could be said that an retirement age of 62 for just one group of employees is considered discrimination, certainly then legal proceedings should be aimed at. But, Ron, I thought that most people in the EU affected by the opposite (increase in the retirement age) see an early retirement age as preferable. And the pension reforms currently undertaken cetrainly will apply also to people who are already working. This is not the same as “retroactively” changing rules of taxation. I still think that this is a “clever” move of OV because he needs to get the judiciary under control and this specific move will be difficult to object to. I could have written the last sentence a bit more to the point: seeing that I do not know what people are waiting for to start to protest in a more targeted manner. But that requires… Read more »
Ron
Guest

Kirsten: I do not know if a lot of people want to retire early, I do know that a lot of people want to work differently, less but continue to work. i found an article about the aforemention posts, but I need to see what the EU Court had to say about this.
http://business.timesonline.co.uk/tol/business/law/article5839926.ece
It has all to do with about compulsory pensioned and not about voluntary pensioned.

Ron
Guest

Kirsten, I found regarding the aforementioned case a ruling by the EU courts.
http://www.cardi.ie/news/europeanjudgesorderministerstojustifyretirementageof65
This is about the UK’s Default Retirement Age, which was 65. This year the government amended the law in this respect that people can get an extention although it is maximum 2 years extra.
In this article somewhere halfway, there was a remark by the judges:
“However, they added that the rules would apply to European law only if ministers could prove that they were “objectively and reasonably justified by legitimate aims, such as those related to employment policy, the labour market or vocational training”.
I think in the Hungarian case this would be difficult to prove.

GDF
Guest

The American system is not a bad one. Federal judges are appointed by the President (and confirmed by the Senate) for life, unless impeached, and most of them have the good sense to retire in time (with their pension matching their last salary, with cost of living increases).

Ron
Guest

Please find the link for the letter, which various judges wrote to the EU and to the public.
http://www.transparency.hu/en/news_events?nid=556&PHPSESSID=f25eb51388217f86d486639f98b22ec9
The letter is Hungarian, but there is also an unofficial translation.

muska supra
Guest

Liked you on Facebook, too. =)

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