Hungarian NGOs criticize Hungary's nominees to the Strasbourg court

September 13, 2016

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“None of the candidates are completely unacceptable. I was expecting a much worse roster. At the same time, it is clear that all three candidates are clearly considered to be close to the government.”

Translation of Szilárd Teczár’s “Names from nowhere” appearing in the September 1st, 2016, edition of Hungarian print weekly Magyar Narancs (pg. 14-15).

Deregistering of churches, forcing judges to retire, unwarranted secret surveillance, and the restriction of the right of free speech in parliament. Such are the most important issues to the Hungarian over which the European Court of Human Rights (ECHR) has the final say.

The ECHR, to which representatives are appointed from the 47 nations that make up the Council of Europe, will see the mandate of András Sajó expire. The vacancy of this seat is now the focal point of serious debate. On August 26th, the government of Hungary submitted a list of potential replacements for Sajó’s seat. The list included Balázs Schanda, a head of department from Péter Pázmány Catholic University; Krisztina Füzi-Rozsnyai, a government commissioner; and Zoltán Tallódi, an assistant department chief from the justice ministry.

A coalition of NGOs led by the Hungarian Helsinki Committee has criticized the Hungarian government’s autocratic and non-transparent nomination process. The government did not announce a call for applicants and, following a series of quiet consultations by justice minister László Trócsányi, simply announced its candidates for Sajó’s seat.

The NGOs are calling on the appropriate Council of Europe committee to reject the entire list of candidates and to require the Hungarian government to pursue a more even-handed selection process. According to the Hungarian Socialist Party (MSZP), the Fidesz government seeks to undermine the independence of the judiciary even in Europe when “it seeks to put its own people into the ECHR.” One partisan Council of Europe member of parliament may seek to influence this highly political horse-trading nomination process.

Last line of defense

“Ever since [Fidesz] took over the independent institutions in Hungary, the European Court of Human Rights has become the only forum where we can be relatively certain that human rights will be protected against the state,” says Máté Dániel Szabó, a director with the Hungarian Civil Liberties Union (TASZ). “Appointing a judge [to the ECHR] who is loyal to the Hungarian government will have a serious impact.”

TASZ joined the Hungarian Helsinki Committee’s campaign, which is not all surprising because Szabó has concentrated his civil rights efforts on winning cases in Strasbourg in hopes that one or two rulings by the ECHR will compel changes in Hungary’s own legal system.

The ECHR, which acts as a court to the Council of Europe, is tasked with ensuring that Member States abide by the European Convention on Human Rights. Anyone can turn to the court if their fundamental rights have been abused and they have exhausted all legal channels in their own country. There have been a high number of cases from Hungary in recent years, and, according to ECHR’s latest statistics, only Ukraine, Russia, and Turkey have more unresolved cases before the court. Although, the vast majority of lawsuits against the Hungarian state will require rather simple rulings, they concern disproportionate trial lengths or inhumane prison conditions.

András Kristóf Kádár, co-chair of the Hungarian Helsinki Committee, says several recent lawsuits against the Hungarian state show there are systemic problems concerning the rule of law in Hungary.

“This is where we, too, sense the limits of the ECHR, because we are only able to file lawsuits in individual cases. The court may choose to award plaintiffs significant compensation, but it has no way to force the Hungarian state to change unlawful regulations which resulted in the violation of [fundamental rights],” Kádár says.

But others have different experiences. Máté Dániel Szabó has had positive experiences. For example, in a case concerning the criminal use of the communist red star, the ECHR was able to get Hungarian legislators to modify the law.

András Kristóf Kádár points at the improvement of strict “unique security quarters” in Hungarian prisons in which those confined had their basic rights restricted.

After one particular Strasbourg ruling, Hungarian regulations were modified to require authorities to disclose to prisoners why they are being kept in unusual conditions, and authorities must also provide the prisons with a legal remedy in which the decision can be challenged.

Conversely, Szabó was awarded compensation by the court because Hungarian law allows for the unwarranted and unsupervised surveillance of citizens. Despite that ruling, and thanks to the Hungarian government’s new terrorism law, further restrictions against unlawful state surveillance have been lifted by the ruling party.

In April 2014, the ECHR ordered the Hungarian government to compensate churches who endured financial damages as the result of the 2011 Church Law. Despite this ruling, the Hungarian government has still not provided a legal remedy to problems arising from the controversial Church Law.

In certain cases, for example, the forced retirement of judges and tobacco retailing concessions, it would be difficult for the Hungarian government to restore original legislation, and because the number of potential cases (which arise from these issues) are limited, the government will be crafty and instead opt to pay compensation amounting to several hundred millions forints per case instead of changing legislation.

The ECHR’s rulings are issued by three or seven member courts and, considering these numbers, it does matter whether or not a judge is able to render an independent decision. Petitions coming from Hungary land on the table of an office led by the Hungarian judge. While these cases are not represented by one particular judge, the cases are prepared by the office led by the Hungarian judge. Because of this, the opinion of the Hungarian judge is not only significant with respect to the outcome of a case, it is also plays an enormous role in deciding which petitions are accepted by the court.

Tamás Lattmann, an international lawyer, says this system helps ensure that Member States stay in line with the legal system. Because a national judge has such a role in the system, no Member State can effectively claim that it is being targeted for political reasons by other countries. At the same time, the court’s rulings are not often complied with.

Of course, Hungarian politicians have not abstained from sharp criticisms of the court. In a 2011 interview, Speaker of the National Assembly László Kövér talked about “idiots in Strasbourg” when commenting on the red star ruling.

Following the ECHR’s ruling in which it shot down Hungary’s Church Law, the Ministry of Human Resources stated “this falls in line with attacks against Hungary orchestrated by certain international interest groups.”

The importance of a judge in the ECHR can also be seen in the fact that human rights organizations are, by and large, satisfied with András Sajó’s performance. Sajó has served as a judge on the ECHR since 2008, and last year he was elected deputy chairman of the court.

András Baka, who served as Hungary’s first delegate to the ECHR from 1991 to 1997, was much more likely to challenge petitions made against the state, and he was less willing to push for the court to hear cases of more controversial issues.

No procedure

“None of the candidates are completely unacceptable. I was expecting a much worse roster. At the same time, it is clear that all three candidates are clearly considered to be close to the government,” a jurist told Magyar Narancs.

The Council of Europe does not have overly stringent requirements for the candidates to the court. It only requires that the candidates be qualified enough to serve in the Member State’s own highest court, or that the candidate have suitable experience in jurisprudence. Trocsányi’s three candidates likely fit this criteria.

Interestingly, in its August 18, 2016, edition, HVG reported that aside from Balázs Schanda and  Zoltán Tallódi, the government also nominated government advisor Anikó Raisz to the post, but the final list replaced the latter with Krisztina Füzi-Rozsnyai. The government was required to consult with the appropriate Council of Europe committee on the nominees before the deadline of August 26th, therefore it is possible they switched 36-year old Raisz out for a more experienced candidate. The justice ministry did not respond to our inquiries about the substitution before this article went to print.

Hungarian jurists generally hold Balázs Schanda to be the most likely candidate because his academic work is the most well known. He also appears to be the most independent of the three nominees. (Political independence is not a requirement for the nomination process, but it could matter in the Council of Europe’s plenary session where the vote will take place).

Máté Dániel Szabó says he can imagine a situation in which the government really only has one serious nominee and that it really only wants Schanda to take a seat on the court, so “[the government] found two other government officials to be on the list who cannot say no.”

Schanda is a conservative jurist who specializes in ecclesiastical law. Earlier, he had served for years as the dean of Péter Pázmány Catholic University’s School of Law. Under the first Orbán government, he worked as the department chief for the government’s Ministry of Cultural Heritage. Earlier articles published about Schanda reported that he was the mastermind behind the first Orbán government’s religious affairs legal proposal, which also prompted outcry from smaller churches in Hungary on grounds that their legal status would be changed from their state-recognized church status to that of being a religious community.

There is no information regarding how or to what extent the 2011 church law relied on Schanda’s earlier concept, but we can be sure that Schanda once wrote in a study that the ECHR’s 2014 ruling was “based on misunderstandings.” By contrast, outgoing judge András Sajó agreed with the ECHR that Hungary’s 2011 Church law is unlawful.

Zoltán Tallódi and Krisztina Füzi-Rozsnyai will certainly have a much harder time in front of the Council of Europe’s committee. Füzi-Rozsnyai, because she is a government commissioner tasked with codifying a proposal for a new public administration court; Tallódi, because he currently serves as a department chairman at the ministry which nominated him.

True, Tallódi has been an employee at the justice ministry since 1990, so one cannot exactly claim his nomination is purely politically motivated. He has been working in the area of international law since 1998, and in recent years he has spearheaded the Hungarian government’s defense work at the Strasbourg court. This explains his intimate knowledge of the ECHR’s case law, but, as one source told Magyar Narancs, his confirmation hearing may require him to defend positions that “teeter somewhere between being completely unacceptable and ridiculous.” Furthermore, Tallódi’s experience in the court may also inhibit his chances to take part in trials concerning ongoing Hungarian issues.

According to a statement by László Trócsányi, the Council of Europe’s 342-person plenary parliament may reach a vote on the nominations sometime in October.

Representatives to the plenary session consist of delegates from national parliaments. Hungary’s delegates will include Zsolt Németh (Fidesz), Attila Mesterházy (MSZP), and Márton Gyöngyösi (Jobbik).

The nominees will first be heard by a committee of the parliament, who will then make a recommendation to the plenary session. (The committee responsible for finalizing its recommendation to the ECHR currently has no Hungarian representatives). The committee can reject the complete list of nominees if the candidates do not meet the professional requirements to serve as judges on the court, but it can also reject nominees if the Member State’s nomination process was not fair, transparent, or consistent.

The Hungarian NGOs says the latter situation best describes the Hungarian government’s nomination process, which took place in a completely ad hoc manner and against the rules set forth by a non-binding 2009 resolution.

András Kristóf Kádár says he is certain the plenary session of parliament will make a politically-motivated decision. But if these Hungarian nominees make it through the committee, it will be clear that the Council of Europe does not take serious its own rules because “it would be almost impossible to take these rules any less seriously.”