Gábor Székely: They should not pretend there are independent judges here

February 19, 2018

“They should not pretend there are independent judges here.” – Gábor Székely, former judge.

A while ago, we interviewed current and former judges on the workings of Hungary’s judiciary. Former judge Gábor Székely was one of the people we spoke to. His more than a decade-long career with the judiciary ended in 2015 when he was declared unfit to remain a judge for reasons that have yet to be disclosed to him.  Our conversation covered anomalies in Hungary’s judiciary, and what he says is a deeply-rooted, cynical view of the rule of law permeating Hungarian society.

The former judge, who currently works as a lawyer in Budapest, is suing his former employer for access to the documents serving as the basis for his dismissal.

Székely tells the Budapest Beacon he moved to Budapest because his decision to challenge his termination has put him at odds with former colleagues in the southwestern Hungarian city of Nagykanizsa.

Embittered and cynical when it comes to the workings of the justice system, Székely emphasizes that there are many excellent judges struggling to mete out justice in a workplace culture not all that different from other workplaces where employees are subjected to intimidation and blackmail.

The way the judiciary is organized “involves a large degree of mutual obligation, cronyism, the network of favors,” he says, adding that “naturally corruption also plays a role.”

Characteristic of the judiciary, says Székely, are “All kinds of petty corruption, all kinds of ‘let’s take care of this discretely,’ ‘sign this,’ ‘paper over that,’ ‘date this forward,’ ‘date this back,’ ‘don’t record here what was actually said,’ ‘don’t write this,’ ‘not this way,'” – practices he says make up the “wonderfully functioning system that [has] developed” throughout Hungarian public administration. Judges who take part in such practices are embedded in a web of connections where those in the know are all beholden to each other. Anyone speaking out or refusing to submit triggers the system’s “automatic defense mechanism,” which causes the individual in question to come under pressure in the form of a deliberately unwieldy case load.

Székely says the automated case assignment system is prone to abuse and judicial supervisors can use this as a way to discipline  judges refusing to submit, and eventually push them out when they come up for review.

These tactics can eventually result in poor workplace evaluations, in some cases even disciplinary proceedings, he says. If someone wants to fight back, their options are limited.

Regarding the ability of the government or politically well-connected individuals to influence court proceedings, Székely says the system today is much more sophisticated than it was 50 years ago, when it was not uncommon for judges to be told by their superiors how to rule in specific cases.

“Judges who have worked together for years or even decades know about one another’s party preferences, world perspective, etc. From that it is not so difficult a matter to assign cases so as to ensure, for the most part, a predictable outcome,” he says.

When asked to comment on Tünde Handó, president of the National Office of Judiciary (OBH) created in 2012 under the second Orbán administration to oversee the judiciary, Székely says she did nothing to address the serious anomalies, but rather “exploited the anomalies for her own ends.” He likens Handó’s tenure with the OBH to “a scandal.”

“The judicial structure is a post-communist structure,” he says. “The point is that nobody wants, is able to, or dares modify it.”

The former judge says the present situation is symptomatic of a “sick society and polity.”

“In my opinion, neither Tünde Handó nor [prosecutor general] Péter Polt, the Basic Law, nor the NER [National System of Cooperation] is the cause of the mistake, rather, they are symptoms of a sick Hungarian society and a sick Hungarian polity. These are the signs of an era. If someone believes that simply removing Péter Polt or Tünde Handó would usher in big changes, they are very wrong, incredibly mistaken.”

Székely says the fact that “loose cannons” such as Polt or Handó can occupy such powerful positions in Hungarian society shows “there is a cynical wink between society and the political leadership.”

He says this shows there is something inherently wrong with how Hungarian society operates.

“We lie to one another about the judiciary, rule of law, and democracy, none of which have existed for some time.”

Corruption comes up in conversation, but Székely insists that people have been socialized to cut corners, loosely interpret rules, and look for ways to avoid having to abide by the law.

“In more advanced states, following the law is a positive thing, a kind of virtue. With us it is equal to being a loser. So if you keep the rules you are a loser, and you cannot prevail.”

Székely says this notion is deeply ingrained in Hungarian society, so much so that it manifests itself in everything “from public procurements to the simplest garage sales contract.

“I am in the habit of saying cynically that in our homeland they found the strongest material, the most powerful material in the world, which is paper that bears everything so long as there is a stamp and a signature.

“Completely inconceivable things are written down and come into force. It can be said that in this form it is pointless. It would be better for us to say that somebody simply wants to impose their will, so we calmly allow this.

“They should not pretend that it is possible to prevail, and they should not pretend there are independent judges here.”

Székely says he sees it with potential clients all the time. They ask him to “paper over,” that is, legitimize in the form of a legal document an otherwise unlawful practice, things that simply do not reflect what is actually happening. He says this is the product of centuries of oppression in which the ability to circumvent laws was a “means of survival.”

He says he tells them there are hundreds of lawyers in the area, “have it papered over with them.”

“There are those who agree to this and then years later they start with, ‘I signed it but it wasn’t fulfilled, that didn’t happen, it didn’t happen that way,’ and the whole of society works this way.

“The European Union doesn’t understand why Hungary interprets certain international legal norms a certain way. It’s because this is what we socialized in over the past 60, 600, 6,000 years. Always getting around rules, being clever, petty corruption, cleverly handling things. Everybody tries to handle everything out of sight, cleverly, by taking advantage of their friends and social connections.”

We discuss how in some countries there is also emphasis on respecting the spirit of the law and not merely the letter of the law.

“With us it is precisely the other way around,” says Székely, adding that, when it comes to the spirit of the law, people have little difficulty formulating a spirit to suit their momentary interests. “Legal knowledge is zero. Legal principles, on the other hand, are perfect when it comes to circumventing the law,” he complains.

As a former judge, and given the hardships he faced in his career, Székely says he has little faith in the Hungarian justice system.