Dr. Andrea Garay, a judge at the Central District Court of Pest, is on trial for violating the National Judicial Office’s (OBH) integrity code. Her offense? Allowing her cousin to enter her office.
Garay is but one of Hungary’s judges to have been accused of violating a recently adopted Integrity Code for judicial officials. But to understand why the proceeding against the judge of 24 years is so bizarre, one must first understand the legal basis of that proceeding.
In 2012, a law came into effect creating the National Judicial Office (OBH) to replace the National Justice Council (OIT), which until then had been responsible for overseeing Hungary’s judiciary. The OBH was tasked with administering Hungary’s court system.
Tünde Handó, the wife of Fidesz MEP József Szájer and close friend of Prime Minister Viktor Orbán’s wife Aniko Lévai, was appointed to head the new agency after receiving a two-thirds vote in parliament from the Fidesz-KDNP supermajority. As in the case of the 2011 law providing for the creation of an extra-governmental authority tasked with supervising the judiciary, Handó’s appointment was secured by this ruling coalition supermajority.
As president of the OBH, Handó wields great power and influence over Hungary’s judiciary. Among other things, she can handpick venues for cases, assign certain judges to certain courthouses, and make sweeping administrative decisions that affect the entire court system.
While it is true that Hungary’s judiciary has undergone several major and controversial overhauls since the start of the Second Orbán Government in 2010, the situation was far from perfect before then, according to many experts.
Zoltán Fleck, a professor at Budapest’s Eötvös Lóránd University Law School, says Hungary’s judiciary has suffered from a series of poor institutional practices since the country’s democratic transition in 1989. An overhaul to the judiciary in 1997 granted county court leaders powers that were virtually unchecked, “institutionalizing oligarchic rule over that of a transparent judicial system.” According to Fleck, since then the “Fidesz system” has revived methods which exploit the judiciary’s vulnerabilities to centralization.
“This means that public administration officials – appointed by the political majority – can inject their influence over court rulings to serve ideological or political interests,” Fleck says. “In the courts today, these positions [of power] are held by the appointees of Tünde Handó. For a judge, conforming to this system could pay off — a notion that is all too familiar to the Hungarian judiciary.” He adds that “financial and professional vulnerability comes naturally in a system where prospects for career advancement, income, a favorable work environment and access to convenient cases depends on [Handó’s appointees].”
According to Fleck, instinctive self-defense of one’s autonomy never really developed in post-communist systems, and for this reason the strongest methods for defending oneself against undue pressure meant hiding behind obscure legal texts which are often chaotic, unpredictable and crafted to serve individual interests.
Within a few short years of her appointment, Handó’s alleged neglect of everyday problems affecting judges, and an iron-fisted approach to imposing her will on the judiciary, have reportedly earned her sharp criticism from her colleagues.
Increasingly unpopular among judges, Handó is said to have isolated herself from colleagues, seeking instead to rule from a distance. Although many judges have criticized judicial “reforms” implemented on her watch, judges have been reluctant to go public for fear of reprisals.
In 2016, Handó created what is known as the Integrity Code. In addition to the fact that judges are already required to conduct themselves in accordance with applicable laws and observe an ethical codex, the Integrity Code is said to be Handó’s way of making sure judges act in a manner that suits her personal preference.
Touted at the time of its introduction as a tool with which to fight corruption, according to its critics the Integrity Code actually serves the purpose of setting loosely-defined parameters which allow for judges that refuse to toe the line to be subjected to arbitrary disciplinary proceedings.
Many judges reportedly feel as though the code is yet another sign of the extent to which Handó’s domineering personality has permeated their everyday activities. Although the Integrity Code itself is not a law (no such law exists that expressly allows Handó to impose her code on judges), it cites laws related to codes of conduct pertaining to public officials and government employees.
In 2016, within months of the Integrity Code coming into effect, a judge in Budapest challenged it in the European Court of Human Rights. While the Strasbourg court has assigned the filing a case number, formal proceedings have yet to begin.
Sources tell the Beacon that the code has a chilling effect on judges, and any perceived violations of its loosely-defined contents can easily result in frivolous procedures being launched against them.
According to one judge, alleged violations can serve as a pretext for disciplinary hearings which may ultimately result in a judge being deemed unfit to perform his/her job. Critics argue that this loosely-defined proceeding does not provide procedural rights, equality of arms (rights to a fair trial) or guarantees for those accused of violating the code.
So loosely defined are the values, principles, orders, recommendations and goals of the OBH president provided for by the Integrity Code that a procedure has been launched against Judge Andrea Garay of the Central District Court of Pest for having her cousin bring lunch into her office. The inquiry seeks to determine whether Garay violated the code by allowing her cousin, an unauthorized person, to enter her office.
How does one get busted for perceived violations of integrity?
According to the Integrity Code, each county court – which oversees district courts or rural courts in their county – is to be appointed a so-called integrity compliance employee. This appointee is nominated by an Appeal’s Court president and the president of a Regional Court, but the nominee – according to the code – must be screened by National Justice Office President Tünde Handó.
One can serve as an integrity compliance employee if one possesses a law degree or has received an “integrity adviser” degree from the National University for Public Service, the government’s favorite institution of higher education. That university is run by Rector András Patyi, a favored university rector of Prime Minister Viktor Orbán, and President of the National Election Committee. (Coincidentally, the government is working on a similar requirement for all high-ranking public officials, agency heads and municipal clerks which would require that they have studied at the National University for Public Service.)
It is the mandate of these so-called integrity compliance employees to uncover and report on suspected violations of Handó’s Integrity Code. If someone at a courthouse suspects a violation, that individual may – even anonymously – bring it to the attention of the integrity compliance employee, who, in turn, forwards the reports to the president of the respective courthouse and recommends what steps to take.
Then the president of the courthouse and the integrity compliance employee open an inquiry, which includes gathering evidence, compiling written statements and reports, and even an interview with the person suspected of violating Handó’s Integrity Code. Ultimately, the president of the court is responsible for informing Handó of violations to her code.
While the introduction of the Integrity Code in 2016 did mark a new milestone in the centralization of Hungary’s judiciary, the judges we spoke to stressed that even though sweeping changes have occurred since Fidesz’s return to power in 2010, Hungary’s judiciary had many problems before that. The difference, in their view, is one of degree, as many of these problems have become exacerbated since 2010, making it increasingly difficult for judges to manage political interference in the courthouse.
As one judge told the Beacon: “Handó needs the Integrity Code to ensure that judges – even in remote parts of the country – remain obedient to her.”
According to this judge, if Handó perceives a judge as being disobedient, and the president of the courthouse is unwilling to reprimand the judge, Handó can use the integrity compliance employees to essentially force the president of the courthouse to launch a proceeding based on the loosely-defined Integrity Code. If the president of the court refuses to initiate proceedings for the perceived violation of the code, that too may be perceived as a violation.
With ever-increasing workloads, judges have complained about poor working conditions and the short deadlines set out for their cases. This, too, hampers Handó’s efforts to publicize the achievements of her agency at a time when the Hungarian justice system is reeling from political scandal.
Our sources tell us the Budapest and Pest county courts are under great strain, although there are courts outside of these areas where judges do not face the same heavy workload but do work in equally bad, if not worse, working environments.
But these facts are not necessarily recognized by Handó, who, in the OBH’s annual assessment for the year 2016, lauded the OBH’s “remarkable achievements in achieving its goals”.
“The rate of decisions rendered in Hungary’s independent courts are effective by domestic and international standards: our clients are getting professional rulings in a faster manner,” Handó wrote.
Since then, she has even approved a guide book for courthouse employees, encouraging the female employees to own at least five pairs of underwear.
The case of Dr. Andrea Garay
An acquaintance of Judge Garay tells the Beacon that Garay’s workload is almost three times the national average, and for each deadline missed, she is required to file a report with her superiors explaining why each case was not concluded on time.
These delays prompted Garay’s superiors to launch a special judicial evaluation against her, the aim of which is to determine whether Garay is still fit for the job. If Garay is determined to be unfit, it could result in her termination.
After Garay decided to defend herself in this proceeding by challenging the merits of the case against her, her superiors initiated a separate integrity code violation proceeding against her. These two parallel proceedings are seemingly unrelated, but those familiar with her case argue that they are connected.
According to Garay, shakeups at her court over the past ten months have ushered in new leadership, who she claims have made it abundantly clear that she should quit. She says she has been badgered for things such as the pictures hanging on her office wall and even her choice of office curtains.
“One can be used to justify the other,” says a judge familiar with Garay’s case.
According to Garay, what she is going through is tantamount to “workplace mobbing”, and the integrity code proceeding is but one weapon in the arsenal of those trying to force her out. By creating a hostile work environment, Garay says, the intention might be to pressure her to quit before any ruling on her competence as a judge is concluded.
Whether Garay is unfit to serve as a judge after 24 years on the bench is an issue that can be decided in proper forums (and there are legally prescribed ways to appeal any such decisions, which judges tell the Beacon are themselves fraught with serious risks of abuse). But linking such decisions with perceived violations of Handó’s integrity code can drive judges to conclude that the cards are stacked against them.
Both the procedure to determine Garay’s competence as a judge and her Integrity Code violation procedure are still pending. The following is a translation of the minutes from Garay’s Integrity Code hearing from July 24, 2017:
President of the Court: Do the statements in the report filed on May 30th, 2017, reflect what happened in reality? If not, how and to what extent?
Garay: It is not true that a stranger remained in my office for several hours. This person did come into my office several times, for example when I asked this individual to drop off mail or to bring me a warm meal. It is true that our department leader met this person, but I do not know when that took place.
President of the Court: What is the full name of the person that was in your office and what kind of relationship does this individual have with you?
Garay: I do not know what the point of this proceeding is, or what kind of rights I have.
President of the Court then informed the judge that this proceeding was initiated as part of a report filed in connection with an alleged violation of the integrity code, and that according to the National Justice Agency’s integrity code, the judge has the right to refuse to answer the question. The President of the Court also informed the judge that minutes of the hearing would be sent to the President of the Budapest-Capital Regional Court to render a decision.
Garay: The name of this individual is ***** ******. She is a distant cousin of mine.
President of the Court: Has the aforementioned person been in your office while you were not present? If so, how many times and for how long?
Garay: She was never in my office when I was not present.
President of the Court: What did this stranger do in your office?
Garay: Nothing. She just sat down.
President of the Court: While this person from outside the court was present in your office, did you keep your court documents locked away? If not, how did you prevent this stranger from reviewing these documents?
Garay: There are no lockable areas inside the room. I did not lock the documents away.
President of the Court: Did this stranger review any court documents?
Garay: Knowing that I can be held criminally liable, I can declare that this person never looked into any of the documents.
President of the Court: When was the last time this person was in your office?
Garay: This person was here last when she met with our department leader. She has not been here since.
President of the Court: Are you aware of Section 5 of the Budapest-Capital Regional Court’s building access rules?
Garay: I probably am. I know the regulations. Only those who are legally permitted to access court documents can enter the building. The relatives of others have visited them [in the building], I believe this current proceeding is discriminative [against me]. In fact, I am certain of this.
The President of the Court informed the judge that the integrity compliance complaint was not the result of discrimination. The group leader is required to report if there is any suspicion that integrity has been violated. The President of the Court must follow through with the proceeding in accordance with the National Justice Agency’s regulations. The President of the Budapest-Capital Regional Court will make a determination as to whether there was a violation of integrity. President of the Court informs the judge that aside from judges, only office personnel or individuals attending meetings in the building may enter, and that relatives of judges may not enter, even if only for an occasional visit in the judge’s office, especially not if the judge is not present. The President of the Court then informed the judge that the minutes of this proceeding would be sent to the President of the Budapest-Capital Regional Court.
Judge Presiding over Administrative Tasks: You say that you asked this individual to send out mail. The question here is what kind of letters these were.
Garay: They were obviously personal letters and bills. I acknowledge what the President of this Court has said but I must insist that never in my 24 years with the court have I violated the building access regulations, nor have I divulged information [about cases], nor have I allowed others to access court documents, nor have I accepted any gifts.