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.
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 December 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.
The Kúria (the Supreme Court of Hungary) will have a significant influence on their professional work as the act tries to formalize and limit individual judge’s professional decisions. According to the new rules, judges must provide an additional judicial reasoning if they depart from a non-binding legal argument previously published by the Kúria. This could very much discourage a judge to depart from the Kúria’s decision. Many judges felt that this could be a way how influence is exercised indirectly on them.
Additionally, according to the act even public authorities have the right to turn to the Constitutional Court if they claim that their constitutional rights have been violated by the decision of the ordinary courts which ruled in favour of the individual. A judges said that the possibility for public authorities to file constitutional complaints is a nonsense and a piece of legislation that indeed stomps on judicial independence.
“Will there be a judge at Pécs to grant asylum to an asylum-seeker, if they are afraid that the Immigration Authority will go to the Constitutional Court?” – asked one judge referring to the chilling effect that this provision may have on the judicial decison making in politically sensitive cases.
Another judge called this possibility a further step to alter judgements to the taste of the government, while another interviewee thought that the government’s intention with enabling authorities to file constitutional complaints was to channel cases from the Kúria to a „politically more reliable institution”, namely to the Constitutional Court.
According to judges, there are serious problems with the quality of the judges’ education system. This has a more indirect but still negative effect on professional autonomy because if a judge is not educated and trained properly, they are more inclined to follow the legal approach of others instead of their own professional conviction.
Members of the judiciary interviewed by Amnesty International talked about their impression that there is an increasing number of judges with a bureaucratic mentality especially among newly appointed judges. This is partly the result of the changes in the selection criteria of newly appointed judges; of their socialization at the NJO; of an application system that does not necessarily favour strong skills in legal argumentation or experience in adjudication. It also stems from the fact that career advancement requires loyalty towards court leadership appointed by the NJO President.
“I do not want to get into any trouble” – chilling effect in the judiciary
Over recent years judges have experienced an increase in the number and severity of attacks from political figures and the media against individual judges and judgements. Due to the chilling effect of the institutional changes, judges are scared away from speaking up in defence of their opinion, which results in only weak signs of solidarity within the judiciary and between judges and other legal professions.
Judges reported a very bad atmosphere at various courts where most judges do not dare to speak openly and freely, cliques have formed and there is mistrust among judges. The interviewees mentioned that the chilling effect materializes in a fear amongst judges that prevents them from speaking up or protesting administrative decisions and pieces of legislation affecting the judiciary. The judges said that they are afraid of potential threats of disciplinary proceedings, disadvantageous case allocation, bad evaluation results, financial consequences, consequences related to family members and repercussions on professional training and development.
Since the rules on freedom of expression and cooperation with external professional organisations remains unclear, this uncertainty leads to chilling effect in the judiciary. Sometimes judges do not even know what they are afraid of: they are fearing an abstract potential future consequence or they are fearing the unknown. Yet, this indirect and subtle consequence of the chilling effect may influence their thinking and decision making. As Gabriella Ficsór, judge at the Debrecen Regional Court of Appeal said:
“Fraudulent fear is governing us – now at the courts too”.
“The Government of Hungary is required by international and domestic law to guarantee the right to fair trial and the independence of the judiciary is a key precondition of it,” said Dávid Vig.
“Government officials and governing party members must refrain from smearing judges who speak up critically and must refrain from attacking the judiciary with unfounded allegations.”
The report is based on interviews with 14 judges from different levels of the Hungarian court system. The research was carried out between November 2019 and January 2020 by Amnesty International Hungary.