After the President of the Kúria, Hungary’s highest court, challenged the new Code of Ethics of the National Judicial Council before the Constitutional Court, four NGOs submitted a joint amicus curiae brief to the Constitutional Court to point out that the arguments of the President of the Kúria are unfounded, and to support the independence of Hungarian judges.
The President of the Kúria, András Zs. Varga appears to fear for the integrity of judges and for the public trust in the judicial system, but in reality, his main concern is that the new Code of Ethics for Judges guarantees the freedom of expression of judges and thus publicity for their views more clearly.
In his submission, András Zs. Varga asks the Constitutional Court to annul the decision of the National Judicial Council (NJC, the self-governing body of judges) adopting the Code of Ethics (and thus the Code itself), along with the legal provision allowing its adoption, on the basis that they are unconstitutional. The NGOs ask the Constitutional Court to reject the submission of the President of the Kúria.
Varga, himself an ex officio member of the NJC, was involved in the drafting of the Code of Ethics up until the majority of judges in the NJC decided that, as the Code is not a legal norm, they would not refer to the Fundamental Law (the constitution) in its text. From then on, the President of the Kúria refused to participate in the process, and on 27 May 2022, he initiated a constitutional review procedure before the Constitutional Court regarding the new Code of Ethics.
In their amicus curiae brief, Amnesty International Hungary, the Eötvös Károly Institute, the Hungarian Helsinki Committee and the Hungarian Civil Liberties Union remind Constitutional Court justices that the Constitutional Court has no power to review and annul the Code of Ethics for Judges, adopted on 2 March 2022, since, contrary to the argument of the President of the Kúria, it is not a legal norm but only a collection of rules of conduct that cannot be legally enforced. In fact, the Constitutional Court already ruled in 2016 that the previous Code of Ethics was not a law and so could not be annulled by the Constitutional Court.
In his submission, András Zs. Varga raises a number of arguments against the Code of Ethics, starting with stating that the NJC was not in the position to adopt it. He also states that since the text of the Code of Ethics does not refer to the Fundamental Law, the Code is unconstitutional.
However, if one reads his whole submission, it becomes clear that what Varga actually does not like is that the judges have independently set rules of conduct for themselves, which stipulate that they are free to express their opinions on professional matters. It is hard not to conclude that the President of the Kúria is actually afraid that critical voices of judges will be now heard by the public in connection with governmental and administrative measures affecting the judiciary.
The joint NGO brief refutes the arguments of the President of the Kúria one by one. The NGOs point out that not only was it the right of judges to adopt a new Code of Ethics, but it was also necessary, because the restrictive interpretation of the previous version of the Code disproportionately curtailed judges’ freedom of expression and contributed to their reluctance to express their opinions on the legal system and the administration of the courts.
The NGOs signing the submission ask the Hungarian Association of Judges and other organisations representing judges, the Hungarian Bar Association and organisations representing lawyers, the Hungarian National Chamber of Notaries, and the National Association of Prosecutors to join the submission, in defence of the independence of courts.