“We are no longer bastions of the rule of law,” says Hungarian judge

March 1, 2018

Last week, the Budapest Beacon published the first of 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.

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 seeks 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’s 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 an 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 include 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.”