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AI: Fraudulent fear rules among judges in Hungary
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Since 2012, an ongoing institutional reform has centralized court administration in Hungary as the government aims to weaken checks of the executive power and restrict established powers of independent institutions. While judges feel they still can adjudicate relatively freely, the institutional independence of the judiciary hand has been severely undermined and the judges are under attack from multiple direction – according to a new report published by Amnesty International Hungary today.
Fearing the unknown: How rising control is undermining judicial independence in Hungary details the various internal and external factors that pose a threat to the independence of judiciary in Hungary and how the attacks on judicial independence have resulted in a palpable chilling effect amongst judges.
“Our research has found evidence that Hungary’s judicial reform has eroded the organizational independence of the judiciary. Recent measures have had a significant chilling effect on the judiciary,” said Dávid Vig, director of Amnesty International Hungary.
“It is worrying that the Government is continuing to challenge final court rulings and has launched a campaign that may discredit the judiciary as opposed to fixing the crucial shortcomings confirmed by the present research. Authorities must strengthen rule of law safeguards, including the powers of the President of the National Judiciary Office, the rules on the appointment and promotion of judges and judicial leaders and case allocation.”
Erosion of organisational independence
The report details that four main factors have contributed to the erosion of organizational independence. At first, after the 2012 judicial reform, the whole judiciary system fell in line with the National Judiciary Office (NJO), the central administrative body of the Hungarian courts. Based on the law, the President of the NJO has vast powers: full administrative and also partial professional control over the courts, and these powers have been often abused by the former President of the NJO.
Secondly, by appointing court leaders – especially regional court presidents and regional court of appeal presidents – loyal to the President of the NJO, the central administration’s tight control can be executed at lower levels hindering organizational independence further.
Thirdly, the judges interviewed explained that loyalty became the main requirement to advance their career or achieve other administrative advantages (bonuses, foreign trips, attending training courses etc.).
Finally, institutions of judicial self-governance such as the National Judicial Council (NJC), the judicial self-administration body cannot provide sufficient checks and balances to the system.
The interviews said that there is a wide assumption among judges that the main political purpose of the 2012 judicial reform was to establish a one-person leadership over the judiciary. The NJO President is elected by the Parliament with a two-third majority and not elected by the judges themselves; therefore many judges consider the NJO President to be a political appointee.
The NJO is the key actor in judicial administration with overwhelming powers. To counterbalance these wide powers, the National Judicial Council (NJC) was formed but its powers are much weaker than the NJO’s and the system allows for the NJO to disregard the NJC’s supervision. This systematic problem was visible during the NJO-NJC conflict in 2018-2019 when the NJO President claimed that the NJC was illegitimate. Consequently, the NJC could not effectively supervise the operation of the NJO according to the law.
While the controversial former NJO president, Tünde Handó stepped down at the end of 2019 to become a Constitutional Court judge, a change of NJO President will not in itself solve such systemic problems. As one interviewee explained:
even if the NJO President is acceptable to the majority of judges, they perceived to be part of the political system and without further guarantees may be prone to fulfil political expectations.
Judges are afraid that the lack of organizational independence will eventually have a negative impact on their individual independence and that such systemic flaws make many judges “adapt and bend” to the expectations of leaders of court administration. They also worried that this mentality might transpire to the judge’s individual independence.
Individual judicial independence in danger
The majority of judges said that no direct influence had been exerted on them or their peers in the judiciary by external players involved in individual cases. However, the report details that influence may be exercised by other means.
In November 2019 a 200-page long legislation, the so-called ’omnibus bill’ was adopted by the Hungarian Parliament that amended several laws regarding the judiciary. All of the judges saw the bill as a threat to judicial independence, especially regarding their professional autonomy.