Even as the Orbán government is bracing for “financial terror” due to its spotty democratic record, it seems to be planning to tighten the screws on the still too independent Hungarian judiciary.
The present structure of the Hungarian judiciary was worked out during 2011, and by January 2012 the government was ready to implement it. The most important addition to the system was the Országos Bírósági Hivatal (OBH/National Judicial Office), headed by an old friend and comrade of the Orbáns with deep roots in Fidesz. Tünde Handó was one of those law students who had the privilege of living in the dormitory where Fidesz was born. Her husband is József Szájer, a member of the same circle, who has been a Fidesz member of the European parliament ever since 2004. He is a very close associate of Viktor Orbán and, until the appointment of his wife to head the OBH, held important positions within Fidesz. Perhaps most notably, he wrote a large portion of Orbán’s constitution. All in all, Handó’s closeness to the seat of power signaled the importance of the position. OBH is described as the arm of the government that is used to manipulate the outcome of politically sensitive cases.
Handó’s discretionary powers are wide. For example, under the guise of overworked courts, she has the right to transfer cases to allegedly less busy ones. The real reason to move some cases from Budapest to the provinces, however, is the belief that judges at the new location will rule in favor of the government. But Handó wasn’t satisfied with her legally prescribed powers. She also acted in an arbitrary and illegal manner when it came to the promotion of judges whom she most likely found politically objectionable. Eventually, dissatisfaction with Handó got to the point that one aggrieved judge sued Handó and won. Another judge, originally an ally of hers, turned to the constitutional court to clarify a situation that had developed in the OBH.
In 2011, when it was reorganizing the judiciary, the Orbán government, as a result of international pressure, was forced to set up a 15-member body called the Országos Bírói Tanács (OBT/National Judicial Council), which was supposed to oversee Handó’s activities. The members of this body are chosen by delegates appointed by the courts. In previous years there were a lot of complaints about the weak-kneed members of the OBT who didn’t take a strong enough position against the overreach of Tünde Handó. And so in January 2018 the dissatisfied judges chose a new OBT, comprised of brave judges who were ready to stand up to Handó. However, everyone knew that if Orbán again wins the election with a super majority, the Fidesz-ruled parliament will be able to remove the current fairly independent chief justice of the Kúria and will reappoint Handó in 2021 to head the OBH for another nine years, which would lead to the further deterioration of the Hungarian judicial system.
The brave National Judiciary Council in January / MTI / Photo: Balázs Mohai
So, let’s see what happened to the “brave” new OBT shortly after the fourth Orbán government won a super majority. On April 19 four members and an alternate resigned, all for “personal reasons.” Perhaps the newly elected members got cold feet about trying to rein in Handó. Whatever the reasons, there is now “trench warfare” between Péter Darák, chief justice of the Kúria and ex officio member of the OBT, who maintains that the OBT, despite the resignations, still has a quorum and Handó, who claims it is defunct because of the resignations.
This trench warfare may be moot. Orbán and the Fidesz leadership still consider the judiciary too independent. They would like to extend the government’s supervision over the courts in order to avoid acquittals, especially in political cases. Their annoyance with the courts, it seems, got to the point that, as one commentator said, “the government is ready to sacrifice even Tünde Handó” in order to achieve its aim. According to leaked information, Handó’s office would be abolished and the whole judicial structure would be subordinated to the ministry of justice. That would mean, says Zoltán Fleck, a professor of the sociology of law, the end of the independence of the courts in Hungary.
This attack on the independence of the judiciary attracted the attention of the foreign press. The New York Timespublished a long, detailed article on the resignation of judges from the OBT. The article quotes Zsuzsa Sándor, a retired judge, who is convinced that if the council can no longer function properly, “then there’s no more hope that judges will be able to operate and rule independently.” And the situation might be considerably worse if the leaked information is correct about the subordination of the court system to the government.
Apparently many “reform plans” are on the table for consideration. But in general the Hungarian “reform” would be similar to the Polish attempt to make the judiciary beholden to politicians. Orbán, just like the Polish government, would get rid of older judges, especially those who were active before 1990, which would mean the forced retirement of about 20% of all judges. He had already gotten rid of the most experienced judges in 2011 when he lowered the retirement age from 75 to 65. There is also talk about abolishing the Kúria (formerly supreme court) and amalgamating it into the Constitutional Court.
Contemplating such drastic and anti-democratic moves, especially after Poland’s judicial fiasco and the European Union’s strong stand on the connection between the future disbursement of convergence funds and the state of democracy in member countries, sounds suicidal to me. Today Viktor Orbán said that he is more than ready to negotiate with the European Commission and Parliament about the European Union’s proposals, but I doubt that he would be able to convince either body that subordinating the courts to a ministry or even to parliament with a two-thirds Fidesz majority would serve the democratic ideals and values of the European Union.
Last week Budapest Beacon published the first in a series of articles dealing with Hungary’s judiciary as it is experienced from the inside. The purpose of this series is to provide insight into how those working in the judiciary see the shrinking space within Hungary’s justice system. A number of the former and practicing judges interviewed agreed to be filmed.
The subject of this interview, whom we refer to as Jakab Gipsz (the Hungarian equivalent of “John Doe”), agreed to the interview on the condition we alter his voice, pixelate his identifiable features, and that it take place in an unidentifiable location.
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Gipsz’s tenure with the judiciary extends back to before 2012, the year the Fidesz government created the National Office of the Judiciary (OBH) and appointed Tünde Handó, the wife of Fidesz founding member József Szájer MEP, to head it. Gipsz tells us there certainly were problems in the judiciary before the creation of the OBH, namely that the courts were not operating efficiently enough.
A politician in a judge’s garb
“In many cases, the lack of efficiency prevented those using the courts from seeking justice,” he says. “In 2012, many looked to the new system with hope and awaited change.”
He says the new system under OBH was built around the person of Tünde Handó. While ushering in a new era of accountability for the judiciary, the new system concentrated far too much power into the hands of one person.
“It is true that many of her initial powers were reduced over time in light of international criticisms, but the point hasn’t changed. The careers of many judges and their promotions all depend on Dr. Tünde Handó,” says Gipsz.
“Of course, many of us knew that [Handó] was not chosen for this role by chance, because everyone knew and knows that she is the wife of one of the ruling party’s most prominent members. Consequently, many have believed from the outset that she is a politician in a judge’s garb.”
According to Gipsz, Handó has on numerous occasions failed to advocate for the judiciary, especially when it comes to low salaries and political attacks.
The workplace culture in Hungary’s judiciary has devolved, he says.
“The expectation in Hungary today from on high is not that someone be a good judge. The goal is not that they act professionally. The goal is that they be reliable,” Gipsz says, “And that is what we see now with the restructuring of the public administration court. This is the expectation that the new system would seek to strengthen.”
Public administration courts
The government’s efforts to create new courts for public administration seek to cement such expectations, Gipsz says.
According to the government’s plans, judges serving in these courts would come directly from the public administration. In other words, these judges would hail from the institutions where they once worked and where, critics of the proposal fear, their loyalties may lie.
“It is clear that those who come from public administration were socialized differently. They come from a system of subordination, subjection, where the orders of the boss cannot be challenged,” Gipsz says.
When a judge comes from such an environment “there is a risk that their independence may be compromised in rulings pertaining to the government, the state, or other significant cases.”
A chilling effect in the judiciary
According to Gipsz, “The National Office of the Judiciary, public administration and the justice system’s leaders have made it abundantly clear that judges should not take part in public or social discourse.”
While he understands the apprehensions of the state, he says that such censorship – restricting judges from engaging in academic debates or restricting judges from sharing their opinions about judiciary – may be indicative of an environment where judges are afraid to rule in accordance with their conscience on important cases where political pressure is applied.
Controlling judges through their superiors
“Judicial leaders, with the exception of the Curia president, are appointed by the president of the National Office of the Judiciary (Tünde Handó). Since 2012 we have seen numerous cases where [Handó] appointed someone other than the candidate most supported by [the National Judicial Council]. This may even leave some with the impression that it is not favorable to be supported by the vast majority of your colleagues because then you are too popular and more difficult to control,” he says.
“The president of the National Office of the Judiciary unilaterally invalidates the hiring procedure and appoints the person of her choice as interim court leader. Naturally, this sends a clear message, and every judge knows that the appointee is who the president of the National Office of Judiciary really wants to see in that position.
“It frequently happens that appointees selected in this manner have gone on to serve in these positions for years as they were later hired to the positions as incumbents, and also because others dared not apply for the job because it was clear they had no chance over the person favored by the president of the National Office of the Judiciary.
“So, as many know, this is why the National Office of the Judiciary is a defendant in a case where the winner of the job was not appointed because the process was invalidated by Handó on grounds only known to her.”
Do politics interfere in judicial rulings?
Gipsz says he has never experienced attempts of direct influence.
“I have not experienced a situation in which a superior has instructed me to convict someone of crime, exonerate someone, or side with a specific party in a civil lawsuit. In the 21st-century Europe, when it appears that the Hungarian justice system is being monitored from abroad, I really doubt they would try to do this so directly.”
Instead, he says, “what are dangerous are the attempts at indirect influence, which, for instance, can happen through the assignment of cases.”
To illustrate this example, Gipsz highlights the infamous Ahmed H. Röszke case.
According to Gipsz, Hungary’s government-controlled media in Hungary makes it abundantly clear what the government’s position is in politically sensitive cases.
“In a case like this, you don’t have to watch the media too closely or be especially informed to sense which ruling was satisfactory to the government and which wasn’t.
How the judiciary has changed in recent years
“In a certain respect, not even I would deny that there is a certain improvement in the technology we are provided. Of course, we should not forget that the global economic situation is also better and the conditions are better to provide computers for judges.
“But I also think that there are many just criticisms. For instance, many [judges] no longer feel as though they are the bastions of the rule of law. In other words, they feel as though they playing the role of guard dogs.”
Further complicating the lives of judges is the government’s approach to unfavorable rulings. To illustrate this point, Gipsz recalls a 2017 ruling by the European Court of Justice in a case brought by Hungary and Slovakia challenging the so-called refugee quota scheme.
In the case, the two countries challenged an EU agreement regarding the distribution of refugees. The court ruled against the position of Hungary and Slovakia. In response, the Hungarian government reacted by completely dismissing the court’s decision — “namely, that these rulings needn’t be enforced and they mean nothing,” Gipsz says.
“If this is the message, then someone might think that rulings may not be binding on them personally and they will find some scapegoat.”
Another problem is that the judiciary has become the target of pointed political attacks.
“Just consider what happened in the autumn of 2017, specifically the parliamentary committee meeting where an MP said that all judges are ‘communists’,” he recalls.
All this has an effect on how the public perceives, or trusts, the judiciary, Gipsz says. “Concerning how society sees judges, I would not say that it is not close to zero, but in my view it is decreasing.”
Tools of retaliation
“There is a vast set of tools that can be used for retaliation,” Gipsz says.
“For instance, they might let someone know that they will not be able to count on a higher-ranking job in the judiciary. Another form of retaliation is that the judge might be given cases other than what he/she typically presides over. Or a judge would be handed a greater number of more complex cases. I can’t even begin to list all the ways a judge could be retaliated against. But the classic set of methods includes giving a particular judge more work to rob them of their time to think about other things. Obviously, those who make mistakes are those who are working. Those who have more work are more likely to commit more errors.”
On what’s at stake for the judiciary in the 2018 general election
Gipsz says that laws concerning the justice system are ‘cardinal law,’ meaning they require two-thirds support of parliament to change.
“We can already see those attempts to put administrative cases and politically sensitive cases in separate administrative courts outside the normal judiciary. I think there is a real danger to this. If these separate courts are created and filled with judges who were socialized in a setting where judicial independence is not of paramount importance, it can easily happen that these courts will get the sensitive cases because they can be expected to deliver appropriate rulings. I can say a few examples: lawsuits involving freedom of information requests typically target governmental decisions.”
Has the National Office of the Judiciary helped ensure that judges can perform their work in ideal working conditions?
“I think that the majority of judges do not subjectively feel that they are in a better position, and I’m not referring to their salaries, I’m talking about their sense of judicial independence, which is a very important for judicial independence overall,” he says.
According to Gipsz, the poor pay of judges opens them up to a certain sense of material vulnerability.
“If judges do not have a strong background or material independence, their intellectual independence and freedom of conscience may suffer as a result.”
He attributes this problem to the increased rate of occupational turnover in Hungary’s judiciary since 2012. This problem not only affects judges, it also affects staff.
“If we look at the judiciary’s staff as of January 1st and compare it to the following January, we can see a significantly higher departure rate. I think every judge has enough information at their disposal to draw their conclusions about this.”
Gipsz says that while the reasons for judges leaving the judiciary may vary, “I think the fundamental reason is that they believe they can find their place elsewhere. It is true that financial considerations play a significant role in that decision. But it is also possible that these individuals do not feel good within the judiciary.”
On the importance of speaking out
“I think it’s important that society sees these problems and understands why the situation with judges is important,” says Gipsz, adding that, while he doesn’t always agree with their opinions on various issues, “we need to have the discourse and debate certain issues. For instance, we should know what judges, people working at the courts and the public think about these issues.
“From this perspective, I believe that it is very important that someone brings these issues to the public’s attention and creates the dialogue. I think it’s important that society sees these problems and understands why the situation with judges is important. We are all born, we all die, and for many of us our life will not pass without us having to interact with the courts. It’s hard for someone to live out their lives without committing a single infraction. That said, if the judiciary is not functioning properly, people will feel the effects of that on their skin. This is important not only on the micro- level, but on the macro- level as well, because society works best when the rule of law is guaranteed because the judiciary can operate effectively.”
After spending two days away from the Hungarian scene it is time to return. In government circles the rejoicing over Donald Trump’s election continues unabated. Trump’s victory seems to have energized Viktor Orbán for his renewed fight against the European Union. His preparation for the next battle comes, however, after a number of serious domestic political setbacks. The biggest blow was parliament’s failure to pass the constitutional amendments designed at least in part to strengthen his hand in his negotiations with Brussels.
For a day or so there was talk of dragging the amendments back to parliament for another try, but as of yesterday the government seems to have decided to abandon them. János Lázár, at his Thursday afternoon press conference, made that announcement, adding that unfortunately the opposition parties for selfish political reasons had turned against their own country. Századvég, the government’s servile pollster, promptly published a new poll showing that 85% of Hungarians find it dangerous that the opposition prevented the passage of the constitutional amendments.
Despite this setback, Lázár assured the country that the government will fight to the end to save Hungary from foreign hordes. Of course, if the government doesn’t succeed in Brussels, the fault will lie with the unpatriotic left and right opposition parties. Viktor Orbán’s ire is especially directed against Jobbik. He has always accused the parties on the left of being the agents of Brussels, but by now he has come to realize that “Jobbik is also on the side of Brussels.” Jobbik no longer represents the interests of the Hungarian people. Instead, “they represent the point of view of Brussels in Hungarian politics.” The attacks on Jobbik and in particular on Gábor Vona have intensified in the last few days. It seems that Viktor Orbán’s hatred of Jobbik and its leader at the moment surpasses his hatred of the democratic opposition.
Yet at the same press conference Lázár announced the government’s decision to put an end to the “residency bonds” after all. It was this bond program that prompted Jobbik not to vote in favor of the amendments. This decision doesn’t seem to be tied to a possible future vote on the constitutional amendments. Instead, it looks as if the government is trying to find existing provisions in the constitution to justify the prohibition of foreign populaces’ settlement on Hungarian soil. The scandals that have surrounded the sale of these residency bonds, quite independently from the program’s being exploited by Jobbik for its own political purposes, were becoming a burden on the Orbán government. Giving up these bonds is most likely a painful sacrifice for both the government and the intermediaries who have made a killing on them. The government will be deprived of huge amounts of instant cash which is sorely needed, especially since right now practically no money is coming from Brussels.
The government also had to retreat on the issue of Ghaith Pharaon’s visa. He is the man who has been on both the FBI’s and Interpol’s list of criminals who are being sought. Pharaon in the last few months has been buying up valuable pieces of real estate in Hungary and has close working relations with Viktor Orbán’s son-in-law. At the beginning of this scandal Viktor Orbán in parliament called the American charges against Pharaon “a game of the U.S. secret services,” but, after a lot of contradictory statements, Lázár at last announced that as of November 1 Pharaon has no Hungarian visa and therefore cannot legally enter the country.
Today came another setback for the government. You may recall that I wrote a post in October about government plans for a system of what I called Fidesz party courts. These courts would have functioned under an entirely separate judicial system that would have dealt exclusively with matters pertaining to the various branches of the administration. It was especially worrisome that half of the judges assigned to these courts would have been people who had had at least ten years of experience in public service, which would have made their judicial independence highly questionable.
The reaction to the announcement about the planned administrative courts was one of outrage among the judges and in the public at large. Even Tünde Handó, head of the Országos Bírósági Hivatal, a close friend of the Orbán and the wife of József Szájer, Fidesz MEP in Brussels, objected. However, László Trócsányi, minister of justice, continued to press for a separate administrative court system. Eventually, even Tünde Handó, who had written a 32-page objection to the plan, was forced to half-heartedly support some of the new law’s proposals. Well, today the same Tünde Handó, to everybody’s great surprise, announced on Inforádió’s Aréna program that no changes will be made to the present judiciary system. She repeated her belief that there are enough judges in the present system who can handle cases connected with the state administration. We don’t yet know what made Trócsányi retreat from his forceful insistence on the scheme. At the time of the controversy, he claimed that he had been working on this “reform” ever since he became minister of justice in 2014. Giving up so easily strikes me as odd. Perhaps Fidesz didn’t have enough votes to pass it.
In the face of these retreats the government consoled itself with the wonderful news of Donald Trump’s election. Here are a couple of typical expressions of delight on the part of Viktor Orbán, the only prime minister in the European Union who believes we are seeing the beginning of “a better future for the world with the new president.” Brexit “was the knocking on the door of this new era, but now we have stepped over its threshold.” The future will be bright because “the days of liberal non-democracy are coming to an end and we can return to real democracy.” Orbán seems to define “real democracy” as a political system in which “we can return to straight, honest talk freed of the paralyzing constraints of political correctness.” We have seen what Fidesz means by “straight and honest talk” in the last 14 years if not longer. And we can admire what straight and honest talk produced in the United States during this dreadful year of campaigning.
Finally, I should say something about a special meeting of the 28 EU foreign ministers called together by Frank-Walter Steinmeier, the German foreign minister for the coming Sunday. The foreign ministers at their regular session on Monday will be discussing the situation in Turkey. The special meeting is supposed “to assess the implications of Donald Trump’s victory as America’s allies brace for the unknown.” I heard a fleeting remark on Klubrádió (but can’t find written confirmation of it) that the Hungarian foreign minister, István Szijjártó, will not attend the special meeting. Perhaps an undersecretary will represent Hungary. If this is true, the Orbán government would be making a statement about its own divergent opinion of the result of the U.S. election.
The Hungarian government is not at all worried. On the contrary, Viktor Orbán and his minions are looking forward to a wonderful new world. He heads the list of “Europe’s extreme right leaders [who] revel in Trump’s victory.” Euractiv.com puts him in the company of Nigel Farage of Britain’s UKIP, Geert Wilders of the Party for Freedom in the Netherlands, Beatrix von Storch of Germany’s AfD, Norbert Hofer of the Austrian Freedom party, Tom Van Grieken of Vlaams Belang (Belgium’s far-right Flemish separatist party), Nikolaos Michaloliakos of Greece’s Golden Dawn party, and Marine Le Pen of France’s National Front. Among these politicians Orbán is the only one who is not the leader of a saber-rattling far-right opposition party but is the prime minister of a country that is a member of the European Union. Ah, but just wait, he would say. The dominoes are falling.
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.husummarized 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.
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.
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
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.
