“There is a culture of fear today. And I do not want to be part of that because it kills the soul. It is much better to be frank and say the emperor is naked. This way, I can do a little to liberate others from the hypocrisy of the justice system into which they have been forced . . . If a ranking judicial official is appointed through a tyrannical system and a motivated candidate is sidelined, then the professionalism of the judiciary is compromised.”
The following interview with Judge Péter Szepesházi (pictured) was originally published on 444.hu. To learn more about recent criticisms aimed at Tünde Handó, president of the National Office for the Judiciary, read this article.
If I’m not mistaken, you are the subject of an inquiry. You said some things that judges aren’t supposed to say.
Several articles I have written and interviews have been published in which I have been critical of the justice system and Tünde Handó, president of the National Office for the Judiciary. Obviously, they are not happy about these critical opinions, nor are they happy that these criticisms have made their way to the people.
The inquiry you are referring to concerns certain people connecting the website for Forum for Responsible and Independent Judges to myself. I was a founder of the site and my positions have been published on it. The issue here is whether these positions are in conflict with the limits established in the law concerning a judge’s freedom of speech. I used to be the editor of the site but stopped editing it back in Spring 2016.
Are you testing these limits on purpose?
I always abide by the limits established in law and I do not go to the limits. In this respect, I am not engaging in civil disobedience. However, there are practices that have evolved in Hungary which go well beyond the limits established by law. These non-legal limits concern speaking about issues that a judge ought not to be critical of. Judges now are only allowed to talk about successes. This is reminiscent of the 1950s [when the state lauded] its great achievements in agriculture.
There is a culture of fear today. And I do not want to part of that because it kills the soul. It is much better to be frank and say the emperor is naked. This way, I can do a little to liberate others from the hypocrisy of the justice system into which they have been forced.
In 2012-2013, everyone was hopeful that changes coming to the justice system would mark a departure from the earlier system, the anomalies of the Lomnici and Baka-type of Justice Council, for the purposes of creating a well-functioning judicial institution. Tünde Handó is a very capable judge and leader, but the centralization and tyranny that she has ushered in have completely undermined all of her earlier successes.
What is the best way to spot the centralized tyranny in action?
Last time Tünde Handó appeared in parliament she was asked why so many ranking positions in the judiciary haven’t been filled despite there being a call for applicants. These hiring processes were declared unsuccessful. Sure, it is possible that there are no acceptable applicants for a certain position at a given organization. But the fact that so many positions haven’t been filled, especially when there were so many applicants who have proved earlier that they were totally capable leaders… Well, that really upset many people.
So how does a hiring process get dismissed?
They announce a call for applications to a leadership position. Several people apply. Then there is a vote on the applicants, the results of which are then dismissed by Handó, who then appoints someone – a person who may not have even applied for the position – to take over the position for the next six months or year. This can result in a situation, one year later, when the next call for applications is announced, where only someone already working in the position can apply for the job. We read about these invalid hiring processes all the time in the judiciary’s bulletin.
The average citizen is pretty detached from the process for hiring of ranking judicial officials…
But this affects everyone. If a ranking judicial official is appointed through a tyrannical system and a motivated candidate is sidelined, then the professionalism of the judiciary is compromised. These are the people in charge of local courts, the people who run the justice system. These are the people responsible for preparing the professional guidelines that judges use when ruling on complex legal cases. A good local leader might be brave enough to challenge some of these guidelines if he or she feels there is sufficient professional reason to do so.
If ranking officials in the judiciary are appointed by Tünde Handó for one year through this invalidating hiring process – as opposed to someone who applied for the job – then the interests of the citizens erode because they cannot be confident that the courts will ensure the most professional rulings.
Is this a theoretical danger or are there concrete examples that show the harm of this method for appointing officials in the judiciary?
When the process to determine whether Judge Gábor Székely of Nagykanizsa was unfit for his job, that decision was made by the president of the regional court who received very few votes when he applied for that job. When someone feels that they will become a leader for being in the good graces of someone instead of the quality of their professional work, there is a great risk that this person will make tyrannical decisions or feel that they need to please their superiors with decisions that meet their expectations.
But isn’t there a contradiction here? There are signs coming from inside the judiciary that things are not okay, but from the outside it appears as though the courts are capable of operating in a professional manner far better than other public institutions in Hungary.
There is, of course, a modern and enlightened opposition within the judiciary, but this situation is a bit like the historical county opposition. The Hungarian lower nobility tried to retain existing social relations and opposed the Habsburg authority by rejecting all kinds of reforms — but the opposition was still valid.
Since 1997, the internal power structure of the judiciary became increasingly dominant, the coalition of county court leaders fought back any attempt at reforms. Absurdly, the remains of this system can be seen in that now there may be a risk – and I say “may” because there is no evidence of this – that the executive branch could interfere with the affairs of the judiciary if it wanted to, perhaps even more than earlier.
But the reality is that while there are important issues in which the judiciary cannot be accused of making political-biased decisions, there are cases where a massive number of rulings are made where there are huge problems, not with the outcome but with schematics of the decision. The judiciary is not intact there.
Which areas are you referring to?
I’m referring to the cases concerning the foreign exchange-denominated loans, and this is where [Handó’s] appointed court officials and ruling guidelines issues come up again, specifically concerning how the court’s rulings are being influenced.
Generally speaking, these are very complex cases with far-reaching lawsuits. Judges in Budapest are the ones primarily gutted by these lawsuits. In these cases, if the Curia sends a few paragraphs-long guideline, these overworked judges are not going to say, “Okay, I’ll read this and a bunch of other documents, other professional material, and I will also look into EU and other international practices.” Instead, these top-down guidelines cut through them like a knife through butter.
For those who are overburdened and generally avoid conflict with the system, these top-down guidelines may be a blessing…
Yes. All the while, we have no way of knowing how the Curia comes up with these guidelines or what the committees deciding these guidelines base their decisions on. Currently, there is an ongoing lawsuit to find out what professional documents were used by the Curia when it issued its guidelines for how to rule in the foreign exchange-denominated loan cases. There are rumors that the Curia does not want to give these sources out because it would become clear that the sources are very one-sided. Professional documents generated by questionable or one-sided sources can be injected into the system, and it’s hard to expect overworked judges to treat these documents with the appropriate amount of criticism.
What is the most common foreign exchange-denominated loan case that lands in front of a judge and what is the systemic problem you mentioned earlier?
Rulings have to be rendered on foreign exchange-denominated loan contracts where the content of the contract itself, that is, where the information provided about the risks associated with foreign exchange rates, do not meet the bare minimum of what is expected from the perspective of consumer protection.
A 52-page contract where there is one paragraph in fine print about the foreign exchange risks…
Yes, only fine print. Then, it turns out that [the loan agent] pressured the clients to sign the contract. “Please sign it, we only have two minutes.” The client wanted the loan, but nobody said, “Let’s stop here for a minute. Pay attention, because this part is important.”
So what is the standard practice for judges in these cases?
According to the aforementioned Curia guidelines, the judges must pretty much accept that the consumer was protected, or, alternatively, that the consumer protection was not ensured but the contract is not void. The consequence of these decisions is evictions — in cases that lacked the most basic protection of consumers, in rulings that do not abide by EU law.
On the other side, there are those who argue that if the courts were to rule these contracts as being invalid, then the entire banking system would be in danger, which could have an enormous impact on the economy — and nobody wants that.
It certainly may be true that someone at the very top of that system believes this, but this is not a legal argument. The problem is that there are no opportunities for the judges to research these cases themselves for the purpose of becoming familiar with different arguments. And again I must bring up the appointments of ranking officials in the judiciary. In many cases these officials do not encourage judges to review these cases and develop their own rulings. These officials are interested in knowing why you only closed six such cases and not eight. In the absence of proper knowledge, and as a result of hierarchical structure of the courts, it is rare that someone will go to the pains of comparing Hungarian law or Curia guidelines with European law or international law.
Are there similar problems elsewhere?
Of the wide list of problems to choose from, the evaluation of judges is another issue. This is an incredibly subjective process. A process that strips a judge of his or her job should involve the most objective criteria, something that can be measured in numbers. Instead, we have an evaluation system where those doing the evaluation [do so] by checking a box to indicate whether a judge “sees the point” of a case or not. This is something that ties directly to the independence of judges. I may see a case differently than a colleague rendering a decision in a similar case.
How many of these evaluations have you been through?
I started working as a judge in 2003. Back then, judges had to undergo evaluations to see whether they are fit for the job every six years. Now, these evaluations take place every eight years. I had one evaluation in 2006, and then I got another “extraordinary” evaluation in 2011 when Judge László Ravasz and myself expressed criticism of the National Justice Council. During that process, I learned that documents were being prepared about me, documents that were being sent from the county court presidents to my superiors in 2007-2008 and 2011. My next evaluation is coming up in 2020.
Will you make it to 2020 without another extraordinary evaluation?
I hope so. So far, I haven’t experienced any abuses from the local or county court presidents. Instead, I am getting strange signals from the National Office for the Judiciary.
How did you end up in this internal opposition role?
In the beginning, I was never this brave. When I first had to defend myself – because as a new judge I did make some mistakes – I disagreed with the claim that I was unfit for the job. Back then, I believed that I should only modestly defend myself, that I could only say one-third of what I want. Those who helped me from the background back then gave me advice. They said: “Péter, be very subtle when you reject criticism or the charges against you. Don’t get heated.”
If the comrade practices self-criticism, he is capable of getting by for a while. After a while, I decided that I would not do that anymore. I realized that it kills the soul. From that point on, I’ve come to feel stronger than the first time I just tried “to get by.”
How many others are there within the system who share your critical opinion?
If anyone looks at the minutes of most recent National Judicial Council meetings, they will see that the number of critical voices have greatly increased. The Council recently started operating as a sort of parliament for judges, and properly so. It may be that officials who speak up there do so out of motivations different from my own, and it happens that they may even be critical of me, but I do believe that the situation is close to erupting.
Tünde Handó promised a lot of things in 2012, for instance that workloads would decrease and that we would have a better work environment. None of these things ever happened. One portion of the judiciary’s ranking officials are really bothered. The other portion has no choice but to raise their voice because the pressure is building up from underneath them, they need to show their subordinates that they have raised their voices and said that things are not going well. Unfortunately, the minutes of these show that Tünde Handó is offended by these remarks.
When you – on paper – see how independent institutions work in Hungary, are you or your colleagues not afraid that Tünde Handó is tyrannical, that maybe she can’t deliver on her promises and that a worse situation is coming?
In 2012, we welcomed Tünde Handó as an insider, a professional, a very good court president, a modern person, a real reformer. She did not deliver on any of her promises. Things can always be worse, but that is hard to imagine when you see it from the inside.