Another Hungary post from my Princeton colleague Kim Lane Scheppele, after the jump.

First, Let’s Pick all the Judges

Kim Lane Scheppele

March 9, 2012

Europe doesn’t like what is happening to the legal system in Hungary.

These days in Hungary, one person picks all the judges. This judicial “czar” just announced today that she was filling 129 vacant judgeships. Only 23 of the newly assigned judges were already judges before. That means fully 106 of these positions are awarded to judicial newcomers. New judges enter the Hungarian legal system for three-year probationary terms, under the watchful eye of the very government that will decide on their reappointments. These judges, therefore, are independent at their peril, knowing that their jobs depend on how the government evaluates what they do.

The judicial czar also has the power to assign specific cases to specific courts. Hungarian law specifies where cases are normally tried, but in Hungary’s new constitutional order, these usual rules can be overridden by the judicial czar who can transfer specific cases to courts other than the ones that are assigned by law. These transfers of cases do not have to be accompanied by reasons explaining why the judicial czar selected those cases or why they wound up in the courts that they did.

What is to prevent Hungary’s judicial czar from picking the judges and then moving sensitive cases to the judges the government prefers? Not the law, at least not anymore.

To Europe, these practices look like the political control of the judiciary. The rapid acceleration of European actions about the judiciary in recent weeks is a signal that Hungary has hit a European nerve.

On Thursday, March 8, the European Commission sent a “reasoned opinion” to Budapest asking the Hungarian government for more information about Hungary’s radical judicial reform. The Commission has given Hungary only one month to respond, an unusually short turnaround time.

On another front, the European Commission for Democracy through Law (an expert body otherwise known as the Venice Commission) will conclude next week that the changes to the judiciary, particularly the concentrations of powers in the hands of one official, “contradict European standards.” The report will say that the constitution must be amended to ensure an independent judiciary. It is a hard hitting report, as we learned when the Népszabadság, Hungary’s largest daily newspaper, leaked news of the draft this week.

A few weeks ago, the European Parliament started a process that may culminate in Hungary losing its vote within the European Union. To decide whether to proceed further, the Parliament wanted to hear Venice Commission’s expert view of the judicial reforms, which we have just learned is scathing. More assessments on other aspects of Hungary’s constitutional changes are to come.

Hungary is not waiting for European permission to put its new judicial plan into action. The Fidesz government is moving quickly to consolidate its constitutional revolution. Soon, the new system will be so entrenched that it will be very difficult for Europe (or for that matter, a future Hungarian government) to change it. The first batch of new judgeships appointed under the new system was announced today. The migration of court cases in Hungary started a couple of weeks ago.

On February 17, Tünde Handó, president of the newly created National Judicial Office of Hungary – the new judicial czar – transferred the first set of cases from the crowded Metropolitan Court of Budapest to various less-crowded courts in the countryside. According to the Fidesz government, moving cases around the legal system like this improves the efficiency of the judicial process by giving judges with smaller dockets the opportunity help out their busier colleagues.

In Hungary, as elsewhere, justice often moves too slowly. A reform that speeds up the processing of cases is understandable and even laudable. But in Hungary, unlike elsewhere, these judicial reforms cap the political program that has put the independence of the judiciary in question.

Three of the nine cases that were just moved out of the capital to the countryside are politically sensitive. One happens to be the highest profile corruption case involving the main opposition party, the Socialists. Former Budapest Deputy Mayor Miklós Hagyó and 14 others are charged with embezzling about $70 million from the Budapest Transportation Authority and the Fidesz government is seeking a 20-year prison term for Hagyó. His case was transferred to Kecskemét. The choice of Kecskemét has raised some eyebrows, since the president of the county court there (who will assign the case to a specific judge) was one of the few court leaders in the country who did not sign a petition to the government protesting its judicial reforms.

Another case involves former Fidesz economic advisor Tamás Varga, who has been serving a jail term after being convicted of embezzling about $140 million in government funds. His appeal against his conviction has been transferred to Debrecen.

Still another case against SCD Balaton Holding, apparently involving alleged real estate speculation, has generated substantial interest among members of the far-right Jobbik party. It was transferred to Kaposvár.

Why should anyone be concerned about a few cases moving to less crowded courts? Because the judicial czar has close ties to the government and there are few legal constraints on her actions. When one-third of the cases moved in the first round are of serious political interest, then we might well wonder what’s going on.

This reassignment of cases is occurring in a context in which roughly one-tenth of all of the judgeships in the country are suddenly available to be filled with new judges.

In June 2011, a new law suspended all new judicial appointments until the new constitution came into effect on January 1, 2012. During that six-month period, judicial vacancies mounted, waiting for a new system of appointments to begin. Then-Supreme-Court-President András Baka spoke out strongly against the attacks on an independent judiciary, not least because he, as the president of the Supreme Court, was also president of the Judicial Council that had the responsibility for selecting judges.

In the end, President Baka lost his job. When the new constitution took effect on January 1, Baka was singled out for removal in the “transitional provisions” to the new constitution. In Baka’s place, the Fidesz Parliament elected Péter Darák, a little-known Supreme Court justice and academic tax specialist who had become a judge on the Supreme Court in 2000 during the first Fidesz government.

The Supreme Court presidency and six months of frozen judgeships created a number of judicial openings for the Fidesz government to fill. But those were not the only open seats on the bench. The new constitution suddenly lowered the retirement age for judges so that, instead of being able to retire at 70, judges were forced to retire at 62, effective immediately. Through this measure, the government received another windfall of judgeships to name.

In an interview on January 31 in his Budapest office, Róbert Répassy, secretary of state for justice, told me that 236 judges would be immediately affected by forced early retirement measure alone. Of that number, he said, the great majority were judges who were already collecting pensions and working only part time. But he also explained that a number of senior judges holding important posts would also be required to retire. Eight out of the 20 county court presidents, two of the five appeals court presidents, and 20 of the 80 justices on the Supreme Court would have to leave office in 2012 because of the new retirement age, allowing the current government to replace them, too.

And how are several hundred new judges to be selected? Under the old constitutional order, judges themselves ran the process of judicial appointment so that it was hard for the government of the day to control who was named to the bench. Under the new constitutional order, all of the new judges are selected by one person, elected for a term of nine years by Fidesz’s reliable two-thirds majority in the Parliament. That person is Tünde Handó.

Tünde Handó occupies a newly created post in a newly created agency: president of the National Judicial Office (NJO). She has been given the power to fill any judicial vacancy that arises – in both civilian and military courts.

Handó’s selection for this sensitive post raised eyebrows both in Hungary and around the world. Before becoming judicial czar, Handó was a long-serving labor court judge, and also a long-time close friend of Prime Minister Viktor Orbán and his wife. She is married to József Szájer, a Fidesz founder and a current Member of the European Parliament who claims to have written the new Hungarian constitution on his iPad. To avoid conflict of interest, Szájer resigned his Fidesz party posts after Handó’s election as head of the NJO. But he still holds his Fidesz seat in the European Parliament. Handó’s intimate ties with the Fidesz inner circle have not endeared her to the democratic opposition which claims that she cannot be neutral.

Handó has not been in the job long, so it is too early to judge just how she will handle her new responsibilities. Let’s assume that she will exercise these powers with exemplary professionalism.

Even with an angel in this job, however, the powers of the president of the National Judicial Office are unprecedented in European practice for their sweeping range as well as for the inability of the affected actors to appeal or contest her decisions. In this job, Handó can hire and fire judges, evaluate them, reassign them to new jobs, and assign them cases to decide. And for most of these decisions, her word is both first and last in the process.

Take judicial selection. While technically, Handó must pick new judges from among lists of those selected by judicial councils in the various courts, she is the one who controls the timing and terms of the judicial “tenders” through which interested candidates apply for the jobs. If a judicial council does not give her a choice she likes from among the applicants at that court, she can refuse to appoint any of the recommended judges and start the process over by announcing a new tender, until the judicial council for the court in question sends her a candidate she is willing to name as a judge. She doesn’t have an absolutely free hand in this process, but she controls most of the relevant aspects of the search. Among other things, she can attend all of the meetings of the judicial councils that will ultimately make their recommendations to her.

When she decides to bring a new judge into the system, Handó must recommend the appointment to the President of the Republic who then formally names the judge. (The current President, also elected by the Fidesz parliamentary supermajority, has not refused anything he has been asked to do by the current government.) Judges who are already on the bench can be moved around with Handó’s say-so alone, including promotions, demotions and assignments elsewhere in the country. She may also appoint and relieve from duty all of the court leaders, who assign cases to specific judges and otherwise manage their courts. There is no procedure for judges to contest her decisions unless a judge has been asked to resign.

Handó’s job also extends to the evaluation of judges, since the law requires that they provide annual data directly to her. The law on the judiciary does not specify what information judges must produce for these evaluations; that will come later in rules that she has the power to issue. She, along with the new president of the Supreme Court, may also investigate judges through an only vaguely defined procedure that may lead to a judge’s removal. Among other things, the law does not specify what standards judges would have to violate to put themselves under risk of investigation and potential removal. She may also “suggest” that disciplinary proceedings be initiated against specific judges within their courts.

Handó also has the power to grant exemptions to judges if they would otherwise have to leave their posts, for example when they hit the mandatory retirement age. In response to the infringement procedure that the European Commission has launched against Hungary for age discrimination against judges, the government is now considering a proposal that will enable judges who have reached the new retirement age to petition to be kept on a big longer, as Secretary Répassy told me. And who will decide whether a judge can keep his or her job past the new retirement age? Handó! Secretary Répassy, however, knew of no procedure under consideration for these decisions to be contested if Handó rules against the judges who want to stay on.

As president of the NJO, Handó may also initiate legislation regarding the judiciary, propose to Parliament the budget for the judiciary and determine (it seems, by herself) the number of judgeships that should exist in Hungary in the first place. She is also given the power to speed up for special treatment cases that have social importance. But how she is to determine social importance is not defined by law.

And this brings us back full circle to the cases that Handó moved out of Budapest to regional courts a few weeks ago. Yes, she has the power to do that too – and it is (according to the government) a power that is now enshrined not just in the law, but in the new constitution itself.

Handó’s powers to assign specific cases to any court in the country came into the constitution by a circuitous route. Seeking to control where individual cases were decided, the government inserted parallel provisions into the new law on office of the public prosecutor and the new law on the judiciary, provisions that allowed both the chief public prosecutor and the president of the NJO to choose the courts that would hear particular cases. But the Hungarian Constitutional Court, in a December decision, found that it was unconstitutional for the public prosecutor to have this power because it violated principles of judicial independence. Had the Constitutional Court been able to review the law on the judiciary (and with it, the provision that allowed the president of the NJO to select the courts to hear specific cases), the Court probably would have found that provision unconstitutional too.

Was this a strong Constitutional Court standing up to the government? By surface appearances, yes. By practical consequences, no. In fact, the Constitutional Court’s decision was quickly and easily overridden.

In response to the decision, the government simply slipped this language – language giving both the public prosecutor and the president of the NJO the power to assign specific cases to any court in the country – into the “transitional provisions on the constitution.” This was a giant bill held open for collecting random constitutional changes until the very last minute before the constitution went into effect. The Parliament passed these transitional provisions on December 30. According to the government, the transitional provisions qualify as constitutional amendments, even though many of the provisions are not in fact transitional but make permanent changes to the constitution and even though the transitional provisions were not passed according to the parliamentary procedures for a constitutional amendment.

The status of these provisions as constitutional amendments is presently being challenged by Hungarian constitutional lawyer Gábor Halmai in a petition sent to the Parliamentary Commissioner for Human Rights who has the power, if he chooses, to forward the petition to the Constitutional Court for review. (People used to be able to petition the Constitutional Court directly in cases like this but, under the new constitution, they must now go through the filter of the ombudsman.) Though the Commissioner has had the petition for more than a month, however, he has not yet indicated what he will do. Even if the Commissioner forwards the petition to the Constitutional Court, the Fidesz government has already packed the Court. The government has been able to appoint seven of the current 15 judges of that Court in less than two years, adding to the several judges sympathetic to Fidesz who were on the Court already. Few now expect the Court to challenge the government in any serious way even if it receives this petition.

In the meantime, however, it is through this alleged constitutional amendment that Tünde Handó now has the power to take cases out of the Budapest courts and move them anywhere else in the country she pleases.

Judicial independence requires that judges are free of political influence. But under the new constitutional order, where the power to hire, investigate, promote and remove judges is in the hands of the same person who then also makes specific case assignments to courts, Hungary no longer can guarantee that judges will remain independent. It will take strong judges not to be swayed when the state official who gives them specific cases to decide also holds their careers in her hands.

No wonder Europe is worried about judicial independence in Hungary.

The three laws I discuss in this post are:

· ACT CLXII of 2011 on the Legal Status and Remuneration of Judges of Hungary

· ACT CLXI OF 2011 on the Organization and Administration of Courts of Hungary

· Act on the Transitional Provisions of the Constitution, passed December 30, 2011

This post was inspired by an Amicus Brief to the Venice Commission, coordinated by Professor Gábor Halmai of the University of Budapest (ELTE), on which I also worked. The Venice Commission will be presenting its report on the laws on the judiciary discussed here for adoption in its plenary session on March 16-17 .

A personal note: I would like to thanks many readers of this blog for supportive personal messages and for the huge turnouts for my lectures when I was in Budapest. You can see my lecture at Central European University in full here.