Tag Archives: judiciary

Plans for a system of Fidesz party courts?

The tightening political stranglehold of the Fidesz government on Hungarian institutions and society in general leads many people to the conclusion that this regime cannot be defeated in a democratic election. Even if the opposition were united, the whole system has been so devilishly designed that one cannot escape its deadly embrace. But occasionally there are rays of hope. Here and there the Hungarian judicial system hands down decisions that allow opposition politicians and independent journalists to at least uncover some illegal financial transactions, shady business practices, or obvious corruption cases. These revelations rarely gain traction because Fidesz’s very own prosecution office makes sure that there will be no consequences. Still, the publicity surrounding these cases greatly annoys the powers that be. And so they decided to do something to remedy the situation.

One of the first acts of the Orbán government was a total reorganization of the judiciary system, about which I wrote extensively in 2011 and after. In April 2011 the government lowered the retirement age of judges from 70 to 62, a decision that affected about 10% of all judges. These vacant positions could then be filled with judges who would presumably be grateful to the government that assisted in their promotion. Then, by renaming the Supreme Court Kúria, they managed to get rid of the chief justice and replace him with one of their own. Finally, they set up an entirely new body called Országos Bírósági Hivatal (OBH) whose head, appointed for nine years, is Tünde Handó, a good friend of the Orbáns and the wife of József Szájer, Fidesz EP MP and one of the original founders of Fidesz. She alone decides on appointments and also on the venues of “delicate” cases against former politicians or government officials.

Yet it seems that Orbán didn’t do a thorough enough job. The remaining judges are not all puppets, and occasionally they rule against the government. For example, when the Hungarian National Bank had to hand over all the information about the expenditures of the five or six “foundations” György Matolcsy established. Or, when the court ruled against the government for not allowing Lajos Simicska’s Közgép to bid on government projects. Such interference in the affairs of the government is something Orbán cannot tolerate.

So, here is a new idea: to set up an entirely separate judicial system that would deal exclusively with matters pertaining to the various branches of the administration. Not that there were no judges who specialized in such cases. In fact, in 2013 special courts were set up to handle labor disputes and cases brought against the government or one of its related institutions. But these courts were part of the traditional court system.

What makes this new “reform” especially suspect is that, according to current plans, half of the “judges” would be “instant judges” who have at least ten years of experience in public service. Most real judges, after working for years in the judicial system, have been socialized as independent arbiters responsible only to their own consciences. On the other hand, a civil servant is by definition an obedient employee who is anything but an independent actor. The two mindsets can hardly be reconciled.

As you can imagine, the reaction was one of outrage. When the question of political motive was raised at János Lázár’s regular Thursday press conference, he naturally denied it and added that Tünde Handó’s OBH supports the idea. Not so. A day later 444.hu summarized a 32-page letter written by Handó in which she severely criticized the idea of setting up a separate court system for administrative cases.

As 444.hu pointed out, Handó cannot be accused of being overly critical of the Orbán government, which she has faithfully served for the last six years. Yet she seems to have sensed the political intent behind the move when she noted that “especially important economic and political cases” will end up in these courts. She announced that “there is no need to set up a separate administrative judicial system” with its own high court. She considers “the large number of professionals coming from the executive branch” to be a threat to the independence of the judiciary. In fact, Handó sees constitutional problems with the proposed legislation. Bertalan Tóth, leader of the MSZP parliamentary delegation, expressed the same objection, though a bit more forcefully. He compared these new administrative courts to a case in which “the accused could pick the members of the jury from among his family members.” I think this is an apt description of the situation.

László Trócsányi, minister of justice since 2014, is leading the government’s fight for a separate administrative court system. In an interview with Népszabadság, he insisted that setting up such a system has been in the works ever since 2014 when he became minister. He and his ministry have been working on this system for the last two years, a claim that, if true, would undermine the position that the government decided to act as a result of the embarrassing setbacks it suffered at the hands of regular judges. Considering that the administration wants to introduce the new system only in the spring of 2018, I suspect that Trócsányi is not telling the truth. If he and his ministry had been working on the project for the last two years, it’s unlikely that the government would need another year and a half to launch it. He also tried to lull suspicions that most of the 100 judges who work on cases involving the administration would be fired by saying that they would remain. Eighty people will be added to their ranks. Since the government wants half of the judges to come from the civil service, I assume all 80 will be “instant judges” whose job will be to save the government from further embarrassments.

Trocsanyi2

Trócsányi’s interview with Népszabadság took place on September 2, and by now I see a slight change in his attitude. He is no longer as combative as he was four days ago. Today, talking to Inforádió, a conservative radio station specializing in politics, he kept repeating that it is not important to set up these courts as soon as possible. What is important is that “thinking begins about administrative procedure.” There can be discussions about the details, like structural solutions, but “as long as he is the minister he will not allow any backtracking on the control over the administration,” a statement that sounds ominous even if it’s not very clear.

To change the law Fidesz needs the support of two-thirds of the members of parliament. The government indicated that it would like to talk matters over with the leaders of the five parliamentary parties: Fidesz, KDNP (Christian Democrats), Jobbik, MSZP, and LMP. MSZP already indicated that they will not attend the meeting. Jobbik and LMP will be there, but they refuse to support the bill in its present form. Let’s hope they remain steadfast through all the bill’s eventual iterations. Otherwise they will endorse a Fidesz judiciary system designed to cover up the government’s criminal activities.

September 6, 2016

Viktor Orbán punishes his adversaries

It is dangerous to cross Viktor Orbán. Sooner or later he will get you, if necessary with the help of crooked judges. Here I will tell the story of three people whom Viktor Orbán has been hard at work trying to ruin. One of his foes was acquired only a few months ago when his old friend, Lajos Simicska, turned against him. The other two are Ferenc Gyurcsány and Ibolya Dávid, who have been on Orbán’s black list since at least 2005. These two did something that in Orbán’s book was unforgivable: they were responsible for his failure to win the 2006 national election.

Ibolya Dávid, leader of the Magyar Demokrata Fórum, became an enemy because of her refusal to run on the same ticket as Fidesz in 2006. She thus deprived Viktor Orbán of those extra votes that were necessary to form a Fidesz government under his premiership.

Gyurcsány’s “crime” was even greater. Orbán noticed early on that Gyurcsány was a talented politician who might be his political opponent one day. And indeed, in 2004 Gyurcsány became prime minister, which was bad enough. But when in the 2006 television debate Gyurcsány decisively beat him, Orbán’s dislike of the man turned into hatred. Orbán was humiliated, and never again was he willing to debate anyone at any time. I’m convinced that from this point on he began assiduously planning the ruination of Gyurcsány, which he has partially managed to achieve by his unrelenting character assassination of the former prime minister, from which he hasn’t been able to recover.

Orbán’s original plan most likely included sending Gyurcsány to jail, and it must have been a great source of frustration that he failed, at least thus far. But if he couldn’t incarcerate Gyurcsány, he could settle for second-best: jailing two officials of the government office that handled the sale of state properties, among them the one that involved a group of foreign businessmen who planned to build a huge casino and wellness complex at Lake Velence, the so-called Sukoro project. Today, in the culmination of a trial that resembled the show trials of the Stalinist period, the two officials were handed very stiff sentences. Miklós Tátrai, the CEO of the company, received four years, and Zsolt Császy, one of the department heads, received three and a half years. They will appeal the verdict.

Tonight, in an interview with ATV, Tátrai revealed that his lawyer had received an informal offer from one of the prosecutors: if Tátrai implicates Ferenc Gyurcsány, he will be acquitted. Since Gyurcsány in no way tried to influence their decision, he naturally refused even to contemplate the offer.

This was obviously a very important case for the Orbán government, and it was one of the first cases sent to a court outside of Budapest, in Szolnok. And the Budapest Appellate Court won’t rule on the case. The next round will be in Szeged. The case may end up in Strasbourg.

Ibolya Dávid, chairman of the right-of-center Magyar Demokrata Fórum (MDF), agreed to a coalition with Fidesz in 1998 and thus received the post of minister of justice in the first Orbán government. I might add that Fidesz, a macho party, makes no effort whatsoever to put women in leading positions either in the party or in the government. Dávid’s experience with Viktor Orbán and the Fidesz leadership between 1998 and 2006 must have been so negative that in 2006 MDF decided to brave the election on its own, despite the considerable pressure on them to support Viktor Orbán. To the great surprise of political commentators, Dávid’s moderate conservative party received  5.04% of the votes and could form a caucus with 11 members. If the MDF leadership had agreed to a joint ticket, Orbán could have formed a government with 107 members. The socialists (MSZP) and liberals (SZDSZ) won 103 seats.

From that point on, Orbán was out to get Ibolya Dávid and MDF. By 2010 he succeeded. MDF managed to get only 2.67% of the votes, and by now MDF is gone. The party was undermined from the inside. Fidesz offered all sorts of enticements, including financial rewards, to people in the MDF leadership who were ready to be secret agents of Fidesz and turn against Dávid. Unfortunately for Fidesz, as a side issue of another piece of Fidesz “dirty business,” which involved spying on the National Security Office, it came to light that Fidesz wanted to pay off a young MDF politician to run against Ibolya Dávid and thus split the party. This was in 2008. The court case has been dragging on ever since. Although Ibolya Dávid and Károly Herényi, the leader of the MDF caucus, were the victims, during the course of the trial they became the culprits. I wrote several articles on UD Zrt., the company Fidesz used to spy on the government, and how Fidesz turned the tables on the MDF leaders. After innumerable court appearances, today the judge decided to “reprimand” Dávid and Herényi, whatever that means. Surely, not even this kangaroo court could find them guilty. So they came up with something called “megróvás” (admonition/reprimand). Both the prosecution and the defense will appeal.

They are supposed to be removed altogether

They are supposed to be removed altogether

And finally, we have the case of Lajos Simicska. In the last few months we have been witnessing Viktor Orbán’s efforts to ruin Simicska financially. Again, I wrote several posts on the subject. The latest is that István Tarlós, the mayor of Budapest, decided to break a long-term contract with one of Simicska’s firms–Mahir Cityposter. In 2006 Simicska’s firm acquired the right to provide the city with 761 large, cylindrical advertising surfaces. The contract was good for 25 years. According to the terms of the contract, Mahir was supposed to pay the city 15% of its profits or at least 45 million forints per year. Now, nine years later, the city fathers came to the conclusion that the deal was tilted in Cityposter’s favor and that if the city itself took over these advertising surfaces it would make between 73 and 125 million forints. Surely, this sudden discovery was inspired by Viktor Orbán’s anti-Simicska campaign.

I should point out that Simicska acquired these large cylinders back in 1994. Simicska, who at that point handled Fidesz’s finances, saw the importance of owning advertising surfaces in cities all over the country to give Fidesz advertisement opportunities at a lower price than that offered to the opposition parties. But that was a long time ago. The situation after the Simicska-Orbán falling out is entirely different.

In brief, don’t cross Viktor Orbán. He is a vindictive man who can now use even the Hungarian judicial system to ruin his adversaries. It is a sad day for Hungarian jurisprudence.

Political interference with the Hungarian judiciary

Fidesz politicians have a penchant for creating situations that call attention time and again to the fact that something is very wrong with democracy in Hungary. We have discussed on numerous occasions the many unconstitutional laws enacted by the Hungarian government that have been criticized by both foreign and domestic legal bodies. I don’t think we have to repeat what Kim Lane Scheppele has so eloquently told us over the years about these issues. Instead I would like to talk about a much less complicated case, one understandable even by those who have no knowledge of constitutional law or the intricacies of the legal systems of Hungary and the European Union. I’m talking about the Rezešová case.

Eva Rezešová is a very rich woman of Hungarian extraction from Slovakia. Driving while intoxicated, she had a very serious car accident in Hungary on August 23, 2012. Her BMW ran into another car carrying four people. All were killed. The public outcry was immediate and widespread.

I must say that I didn’t follow the Rezešová trial because I didn’t think that it could possibly have political ramifications. After all, it was an ordinary, if tragic, car accident. But Fidesz politicians manage to muddy (or, better, taint) the legal waters even in seemingly straightforward cases.

Rezešová was brought to trial, found guilty, sentenced to six years, and placed under house arrest until the appeals court re-hears her case. The prosecutor filed the appeal since he believed the verdict was too lenient.

Public outrage followed the announcement of the house arrest. The Internet was full of condemnations of the decision. After all, this woman who caused four deaths while driving under the influence didn’t deserve to live in a comfortable apartment in Budapest. News spread that her two children, who are currently in Slovakia, will join her and will attend school in Budapest while she is awaiting her second trial.

Antal Rogán decided to join the outcry. He took along a cameraman and delivered a short message in front of Rezešová’s residence, which he placed on his Facebook page. He expressed his disgust and, in the name of the Fidesz parliamentary caucus, called on the parliamentary committee dealing with legal matters and on the minister of justice to investigate the outrageous decision that Rezešová could spend her time between the two trials in the comfort of her home. That happened around 10 a.m. on December 4. A few hours later the announcement came from the court, which had originally ordered the house arrest, that they had changed their minds. Rezešová must return to jail because there is a danger of her escape. Observers were certain that there was a direct connection between Rogán’s demand for an investigation and the court’s change of heart.

Antal Rogán in front of Eva Rezešová's apartment house / mandiner.hu

Antal Rogán in front of Eva Rezešová’s apartment house / mandiner.hu

This may not be the case. The prosecutor appealed the case and also asked the court to reverse its decision on the issue of the house arrest. So, it is entirely possible that Rogán’s instructions to the parliament and the ministry just happened to coincide with the court’s announcement. Whatever the case, it doesn’t look good. It looks as if in Hungary politicians give instructions to the judiciary and these instructions are promptly obeyed.

Why did Rogán try to influence the court’s decision? Is he that ignorant of the notion of the separation of powers in a democracy? It’s hard to imagine. People consider Rogán one of the brighter politicians around Viktor Orbán. Perhaps as the national election approaches the Orbán government is ready to ignore the “fine points” of democracy as long as a gesture like Rogán’s is appreciated by the majority of the people. And, believe me, it is appreciated. On Facebook one can read hundreds and hundreds of comments thanking Rogán for “doing the right thing.” After all, if the judges don’t know what decency is, here is a man who does and who instructs them to make the right and just decision.

The Association of  Judges reacted immediately and pointed out that Rogán’s statement may give the impression of undue influence on the judiciary. The Association felt it necessary to defend the judges against any such interference. It announced that the Association cannot tolerate “expectations expressed by politicians in cases still pending.” The president of the Hungarian Bar Association found it “unacceptable that a politician expresses his opinion on a case before the final verdict.” He called Rogán’s action “without precedent.” And today even the chief justice of the Kúria (Supreme Court) alluded to the case without mentioning Rogán’s name or the Rezešová case. The issue came up in a speech by Chief Justice Péter Darák welcoming the new clerks and judges. He warned them never to fall prey to outside influences.

It is possible that Rogán’s ill-considered move  may have serious practical consequences. For example, what if Rezešová’s lawyer eventually decides to turn to the European Court of Justice claiming political influence in the verdict of the appellate court? It will be very difficult to prove that the two events occurring on the same day had nothing whatsoever to do with each other.

And there are other clouds looming over the Hungarian government with regard to its constant interference with the judiciary. Two days ago the Constitutional Court found the practice the Orbán government introduced of transferring cases from one court to another unconstitutional. This is not the first time the Constitutional Court ruled on the issue, but every time it found the law unconstitutional the government smuggled the same provision into either the constitution or some other law. Meanwhile the head of the National Judiciary Office (OBH), Tünde Handó, kept transferring practically all political cases at will to the far corners of the country to courts that she most likely considered to be partial to the government’s position. In 2011 thirteen and 2012 forty-two such cases were assigned to non-Budapest courts. These cases are still pending.

There are two possibilities now. One is to stop all the proceedings and start the cases over again, this time in the courts to which they by law belong. The second possibility is to proceed as if the Constitutional Court never spoke and have the courts hand down verdicts that will most likely be found null and void by the European Court of Justice. If I were the Hungarian government, I would opt for the former.

The Hungarian judiciary hits back but it is most likely too late

It was only a week ago that I wrote an article about the possible repercussions of the Orbán government’s plans to revamp the Hungarian judiciary system. At that time it was already quite obvious that the government means business: it wants to reshape the judiciary by being able to appoint its own favorites to high posts.

The first warning sign that Viktor Orbán–because let’s not pretend otherwise, he is the one who makes all the decisions in the party and the government–had had enough of judicial independence came months ago. First, there were verbal attacks on Hungarian judges who, according to Fidesz, didn’t rule properly in cases against violent demonstrators on October 23, 2006. Then, the decision was made, which parliament enacted into law, that rendered certain verdicts reached in these cases null and void.

Later it became apparent that the government was dissatisfied with the current practice of having an independent judiciary council nominate judges. Hungary at least until now had a unique system. Personnel decisions lay with a judiciary council that was comprised of top-level judges plus the minister of justice and the chief justice. This body was solely responsible for nominating new judges and promoting others. In the new constitution there is no mention of the judiciary council. From here on the minister of justice will nominate judges and parliament will approve them with a two-thirds majority. There is no question who will be nominated and approved.

Then came the startling news that judges will have to retire at the age of 62 instead of 70 and that this change will be included in the new Hungarian constitution. One doesn’t have to be a constitutional expert to know that such details have no place in a constitution. So why put it there? The answer is actually quite simple.

If this new provision were not included in the constitution it would surely be found unconstitutional on many grounds. Here I’ll mention only two. Someone who began his career as a clerk to a judge and who decided to remain within the system in the last twenty to twenty-five years has been doing his financial planning based on the fact that he can work until the age of seventy. Let’s say that someone is sixty years old and just married for the second time. He bought a house for his new family and is still paying the mortgage. He thought he had ten more years with the judiciary with a pretty good salary. Now, out the blue, he’s just learned that in two years he will be out on his ears. The constitutional court has handed down rulings in the past that would serve as clear precedents for declaring this change in the retirement age unconstitutional–that is, if the constitutional court had anything to do with it.

But there is at least one other reason why the constitutional court would throw out this provision if the government didn’t smuggle it into the constitution. One cannot just arbitrarily lower the retirement age of judges when the retirement age of prosecutors and diplomats remains untouched at seventy. In the last minute it seems that this problem became evident to János Lázár, leader of the Fidesz delegation in parliament, whose unpleasant task it was to turn in this amendment in the last minute. He announced that eventually they will also lower the retirement age for prosecutors, diplomats, and politicians. You may recall that last summer the government changed the law concerning the retirement age for diplomats so that György Szapáry, who was seventy-two years old, could serve as Hungarian ambassador to the United States. In brief, this government tinkers with the retirement age in any old way it suits them.

The first reactions from the judges were muted, but this morning we learned that the pussy-footing around had come to an end. The top leadership of the Hungarian judiciary system almost unanimously rose up against lowering the retirement age. All the members of the Supreme Court, the chairman of the judiciary council, and the chief justices of the county courts published a communiqué that was addressed “to the public of the country and the European Union.” From the communiqué we learn that the retirement age was fixed in 1869 (1869:IV) and hasn’t been changed since! At that time the average life expectancy in Hungary was under forty. The judges rightly point out that this decision goes against the trend that in fact raises the retirement age almost everywhere in the developed world.

But that is the least of the judges’ problem. They find the new provision discriminatory and contrary to the theory of judicial independence. At last the judges dared to say that the decision to include this change in the constitution is based on the full knowledge of the government that this new law is unconstitutional. The judges also decided that they will announce what until now they didn’t want to bring up: the change serves only political ends.

The best was left for last. The judges find it incredible that twenty-one years after the change of regime from a one-party system to a pluralistic democracy they have to fight for the minimal values of democracy in a country that is currently holding the rotating presidency of the European Union. They “would have never thought that in our country we will have to stand together in the defense of constitutionality and democracy against those politicians, some of whom in those days actively worked to end the dictatorship and establish a democratic state.”

Twenty-one judges, including almost all the chief justices of the county courts and the heads of the appellate courts, signed the communiqué. There were only three county chief justices who didn’t. One refused to say why not while the other two claimed that in their own district very few judges are close to retirement. Naturally that cannot be their real reason for not signing. One suspects that these people think that soon enough they will occupy some of the higher places in the hierarchy that the signers of the communiqué will involuntarily vacate.

The liberal opposition greeted the communiqué enthusiastically but some think that it came far too late. Next Monday the constitution will most likely be approved by the Fidesz-KDNP two-thirds majority. MSZP, LMP, and Jobbik will not vote for it, and the two independent MPs also announced that they cannot sign the document.

As mentioned earlier, the communiqué is addressed to the public of the country and the European Union. But what can the European Union do? Perhaps the Hungarian judges know more than we do. Let’s hope so.

April 15, 2011