Tag Archives: Supreme Court

The Hungarian right loves not only Donald Trump but also Clarence Thomas

Today’s post was inspired by an opinion piece that appeared in the government-sponsored Magyar Idők titled “Historic swearing-in in Washington.” No, it wasn’t about President Donald Trump’s inauguration; it was about Supreme Court Judge Clarence Thomas administering the oath of office to Vice President Mike Pence. The author is László Lovászy, a university professor and the Hungarian member of the UN Committee on the Rights of Persons with Disabilities.

In the article Clarence Thomas is portrayed as a man who is being “purposely ignored by the media both at home and abroad and about whom one can find barely any positive reference” in the literature on human rights. In the opinion of the author, the reason for this silence is Clarence Thomas’s well-known opposition to affirmative action and his pro-life position. This, he writes, was the reason for his difficulties in becoming a supreme court justice when “even accusations of sexual harassment” were raised against him. In the Trump era “we can expect to hear more about [Clarence Thomas] because, after all, he is the only black, Republican member of the Supreme Court who is opposed to positive discrimination on the basis of race.”

Those of us who know a little more about Clarence Thomas’ performance during his tenure in the Supreme Court are pretty certain that Thomas is not ignored because of his views on affirmative action and the question of abortion. He is ignored because, as a sharp-tongued critic said a few days ago, “Tell me one time that Thomas has done anything. Not just for black people—just done anything…. He is there because we see him. And he is alive because he is there. And he does stuff, like sit and stand and say, ‘I would prefer not to.’ But other than that, I don’t know what he does. Wait—I do know what he will be doing Friday: swearing in Vice President-elect Mike Pence, so there is that.” Indeed, because Mike Pence “has long admired Justice Clarence Thomas and deeply respects his judicial philosophy, dedication to the rule of law, and his historic service on the bench of our nation’s highest court,” he specifically asked Thomas do perform the honors.

Lovászy dwelt at some length on President Barack Obama’ harsh words regarding Thomas’s less than sterling record when in 2008 during the campaign he said: “I would not have nominated Clarence Thomas. I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretation of a lot of the constitution.” Lovászy finds these critical words inappropriate and highly reprehensible.

Actually, Lovászy is not quite correct. In the last few months Clarence Thomas’s name has appeared quite a bit in the media–mind you, not as a shining light of American jurisprudence. A few months ago, when the new Smithsonian National Museum of African-America History and Culture opened its doors,  visitors noted that Clarence Thomas ended up as a footnote to Anita Hill: “In 1991 Anita Hill charged Supreme Court nominee Clarence Thomas with sexual harassment. This event transformed public awareness and legal treatment of sexual harassment. Outraged by Hill’s treatment by the all-white, all-male Senate committee, women’s groups organized campaigns to elect more women to public office.”

So, it looks as if the African-American organizers of the exhibit didn’t quite agree with Mark Paoletta, assistant counsel to President George H. W. Bush, who played a key role in the successful confirmation of Clarence Thomas. According to him, Thomas is “the second most important black person in the United States after President Obama…. Absolutely the top black conservative. I’d say even the top conservative.”

Clarence Thomas and Anita Hill will forever be linked in the American cultural memory. In fact, Hill’s sexual harassment charge was resurrected recently. First, when Joe Biden contemplated throwing his hat in the ring, the U.S. media discovered his role in the Senate hearings of Clarence Thomas. Politico admitted that Joe Biden has done a lot over the past 24 years in defense of women, but “that hasn’t erased the memories of how Biden presided over those hearings as chairman of the Senate Judiciary Committee, blamed for doing little to stop the attacks on Hill and opting not to call three other witnesses who would have echoed Hill’s charges of sexual harassment.”

Soon after, an HBO movie on the hearings, Confirmation, was released. According to one of the reviews, “the two-hour film focuses on themes that feel hauntingly current, like slut-shaming and victim-blaming. It brings up the uncomfortable reality of how powerful men often treat the women around them.” Keep in mind that these words were written at the time that Donald Trump’s treatment of women was being widely discussed.

The all-male Senate Judiciary Committee. Photo: Associated Press

And in late November Moira Smith, vice president and general counsel at Enstar Natural Gas Co. in Alaska, came forth with her story about an unpleasant encounter with Thomas back in 1999 when she was a Truman Foundation scholar. Smith decided to go public because “Donald Trump said when you’re a star, they let you do it; you can do anything. The idea that we as victims let them do it made me mad…. Sure enough Justice Thomas did it with I think an implicit pact of silence that I would be so flattered and star-struck and surprised that I wouldn’t say anything. I played the chump. I didn’t say anything.”

The conservative media is still extremely touchy about Clarence Thomas. The National Review attacked Moira Smith, calling attention to the fact that she is a registered Democrat and her first husband served in Obama’s White House. Moreover, her second husband “is now a discredited high-profile Democratic politician in Alaska.” That kind of attack is only too familiar to Hungarians acquainted with similar Fidesz assaults on their opponents: to bring up an alleged fact that has nothing whatsoever to do with the case in point.

In any event, the Hungarian right is enamored with Donald Trump. And now that Pence chose Justice Thomas to administer his oath of office, right-wing journalists and scholars close to the government, like Lovászy, have suddenly discovered him. I doubt, however, that they will be able to make a great legal scholar out of him. Moreover, although this obviously doesn’t matter to them, in trying to make Clarence Thomas a hero, they are disregarding the feelings of the African-American community, which has rejected him as someone who has never represented their interests. Their heroine is  Anita Hill, whose impact was tangible. In 1992 four women were elected to the Senate, and the number of women in the House rose from 28 to 47. Her testimony also raised people’s awareness of sexual harassment.

January 25, 2017

Ruling of the European Court of Human Rights: The case of Krisztián Ungváry v. Hungary

Today’s topic should resonate with readers of all political stripes. Any news about secret agents of the Kádár regime, especially because of the lack of full disclosure, always arouses a great deal of interest. In addition, tidbits about Ferenc Gyurcsány’s activities as KISZ secretary at the University of Pécs in the 1980s are highly sought after, especially in right-wing circles. Add to that a former “official/informal contact” between the university and the Ministry of Interior’s infamous secret service who happens to be today a member of the Hungarian Constitutional Court. Finally, a decision of the European Court of Human Rights that finds the Hungarian Supreme Court’s finding and judgment in the case of Krisztián Ungváry v. László Kiss irreconcilable with Article 10 of the European Convention on Human Rights, which prescribes that “everyone has the right to freedom of expression.”

Krisztián Ungváry

Krisztián Ungváry

The story started in 2007 when Élet és Irodalom (ÉS) published an article by Krisztián Ungváry, a historian who is an authority on, among other things, the secret service and its agents during the Kádár period. The article was about an aborted student movement at the University of Pécs. In 1982 three young law students wanted to start a peace movement independent from the official Országos Béketanács. They never thought the authorities would find anything wrong with such a movement. After all, Kádár’s Hungary, like the whole Soviet bloc, made frequent references to peace as something desirable. The problem was that the inspiration for this particular movement came from Western Europe and wanted to banish nuclear arms from the whole of Europe, including Soviet arms that could also be found on Hungarian soil. Therefore, the authorities immediately reacted in order to squash the Dialógus program, as the movement was named by the students.

The details of this “storm in a teapot” are not interesting as far as our story is concerned, but the original article does shed light on many aspects of “gulyás communism” that were not evident to the passive majority of Hungarians. The thesis of the article is that very often it was not the secret agents who were the most important sources of information for the Ministry of Interior but the so-called “informal contacts.” In connection with the Dialógus affair Ungváry mentions eight people who served as “informal contacts,” most of whom he managed to identify. Among them was the party secretary of the law school, László Kiss, then associate professor and today a member of the Constitutional Court, a position he has held ever since 1998. At the same time Ungváry comes to the conclusion that, although Gyurcsány as a KISZ secretary was a link in the chain, his role was minimal and he was not one of the “official contacts” the Ministry of Interior relied on.

Kiss Laszlo

László Kiss

Ungváry had proof of Kiss’s reporting to the Ministry of Interior and therefore had no reason to believe that he might be the object of years of litigation in connection with this article. A few days after the appearance of his article, Kiss made an announcement that was published in ÉS in which he declared that he had never been an agent and “never worked with the persons of the secret service mentioned in the article. In fact, he didn’t even know them personally.” He threatened Ungváry with both civil and criminal legal proceedings and, as it turned out later, brought charges against ÉS as well.

Ungváry’s answer in the same issue pointed out that Kiss’s name appears in the folder dealing with the Dialógus affair as the source of information on the details of the case. That didn’t satisfy Judge Kiss, however, and he proceeded with the litigation that lasted over three years.

Ungváry was acquitted of the criminal charges, but he and ÉS lost the first round in the civil case. In March 2010, however, the appellate court ruled in favor of Ungváry and the weekly paper. Liberal groups were delighted, and SZEMA (Szabad Emberek Magyarországért, the party of Klára Ungár) called on Kiss to resign his post after the ruling. After all, Ungár argued, a man with such a past shouldn’t be a member of the Hungarian Constitutional Court. 

Naturally Kiss had not the slightest intention of resigning. Instead he appealed to the Supreme Court, which promptly reversed the appellate court’s decision. Again liberal groups were up in arms, especially since the court fined Ungváry 3 million forints and ÉS 2 million for publishing the piece. But even Mandiner, a group of young conservatives, stood by Ungváry; in fact, they collected money so he would be able to pay the stiff fine. But Ungváry is not the kind of man who gives up easily. Shortly after the ruling of the Supreme Court in June 2010 he appealed to the European Court of Human Rights. On December 3 the Strasbourg court ruled against Hungary. Thus Hungary will have to pay 7,000 euros to Ungváry and, 3,000 to ÉS over and above the amount the paper had to pay in fines after the ruling of the Hungarian Supreme Court.

The decision was a narrow one and the Hungarian government has the right to appeal, which would initiate another round of legal proceedings at the Grand Chamber of the European Court of Human Rights. The Hungarian government hasn’t responded yet but László Kiss certainly has. He is planning to sue Ungváry for distorting the verdict of the court when he announced that the finding of the court “validated” his claims about Kiss’s activities. Kiss went so far as to claim that the Strasbourg court “announced that Ungváry was unable to prove his claims,” which were no more than “speculations” that lacked any corroborating evidence.

I checked the published judgment of “Case of Ungváry and Irodalom Kft. v. Hungary.” Since Kiss referenced the word “speculations,” I decided to check the text of the judgment. I found only one “speculations,” and not where I would have expected it to be if one believed László Kiss. No, the word was found in the description of the Hungarian Supreme Court’s judgment that the Strasbourg Court found wanting. Let me quote.

53. The Court notes the finding of the Supreme Court according to which the first applicant [i.e., Ungváry] was unable to prove that Mr K. had been in regular contact with the State security, often anticipating and exceeding its expectations. The Court finds that these expressions exceeded the limits of journalism, scholarship and public debate. In the present case, it is not the –arguably excessive – form of the expression but the defamatory content of these speculations, which the Court finds objectionable as being without sufficient factual support. …

The Court notes that the article intended to demonstrate that collaboration, that is, the activities of “official contacts” meant cooperation without specific, express operational instructions from the State security. Limiting its analysis to this kind of direct cooperation with the State security, the Supreme Court failed to consider that Mr K.’s reports had been in any case available to the authorities of the Communist regime, nor did it attribute any particular relevance to the fact that the first applicant’s undeniably offensive and exaggerated statements were made within the context of the broader presentation of the workings of the oppressive mechanism of a totalitarian regime. It did not consider relevant, either, that the first applicant had indicated the sense in which he had used the term informing (see paragraph 8 above). Indeed, the article was written in order to demonstrate how closely the Ministry of the Interior and the “social organisations” had worked together, and especially, how tight the relation had been between party functionaries and the Ministry of the Interior.

And finally:

The Court notes that the Supreme Court interpreted the first applicant’s description of these officials as one portraying them “guilty by association” – which, in that court’s view, could not prove that Mr K. “actually cooperated” with the State security (see paragraph 19 above).

The Court cannot agree with the deduction of the Supreme Court.

The Court finds that although the first applicant did not prove that Mr K. and his reports had actually been commissioned by the State security, it was nevertheless an undisputed fact that he, as a party secretary, had produced reports on the Dialógus affair. (p. 15)

If I read the decision of the Strasbourg court correctly, I don’t think that Judge Kiss has a chance. Unless, of course, the Hungarian judges are intimidated by the almighty judge of the Constitutional Court.

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.