A backdoor for exerting influence over the courts

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László Kövér, speaker of the Hungarian National Assembly and influential member of the governing Fidesz party, invited high-ranking judges to the Parliament last April to celebrate 150 years of judicial independence in Hungary. In his address, Kövér said that judges should not be preoccupied with issues of their own independence, but should instead aid the state's fight for sovereignty.

“The question 150 years ago was whether the Hungarian state is willing to guarantee the independence of judges. In the future, the question will be whether judges are willing to guarantee the independence of the Hungarian state.”

While Kövér was the first high-ranking Fidesz politician to publicly spell out such clear demands, it is no secret that the Fidesz government would like to increase its influence over the judiciary. Over the past ten years, Prime Minister Viktor Orbán – armed with a parliamentary supermajority – has successfully brought most of Hungary’s public institutions under increasing government control. The judiciary appears to be the only branch of government continuing to defy such efforts to curtail its independence, which in the past years has included the reduction of the mandatory retirement age for judges, which sent most experienced judicial leaders into early retirement, and the establishment of a National Judiciary Office (NJO), a central administrative body of the judiciary which was led by a political appointee and vested with crucial powers over the promotion of judges and the appointment of court leaders.

After a Europe-wide populist surge failed to materialize in the 2019 EP elections and Fidesz’s position within the EPP became more precarious, the Orbán government was forced to make serious concessions to their moderate European allies. Late last year, the government walked away from its controversial plan to establish an administrative court system, a legal forum which would have presided over politically sensitive cases and would be partially staffed with government officials rather than career judges. Tünde Handó, the wife of Fidesz MEP József Szájer and a family friend of Orbán, also had to resign from her post as President of the NJO. Her replacement, György Barna Senyei, seems to have no ties to the ruling party.

While these developments are significant and demonstrate the ability of the EU and EPP to influence Hungarian government policy on certain issues, they do not necessarily mean that Fidesz will completely abandon its attempts to increase its influence over the judiciary.

Less than two weeks after cancelling its plans to establish separate administrative courts, the government introduced an omnibus bill in Parliament which brought changes to the existing court system. Most significantly, the bill enables government institutions to appeal to the Constitutional Court to have unfavorable rulings by ordinary courts overturned. Since all 15 justices on the Constitutional Court were selected by the Fidesz supermajority in Parliament, they are more likely to lend a sympathetic ear to the government’s grievances than career judges. The recent omnibus bill also increases the influence of the High Court, and its moderate president Péter Darák is expected to be replaced with Constitutional Court Justice András Varga Zs. one the regime’s most important legal architects.

These legislative changes represent a more subtle and efficient way of exerting political influence on the judiciary than pressuring individual judges or creating a costly parallel court system, since the most important cases will inevitably end up before either the High Court or the Constitutional Court.

The government is now set to launch a new “National Consultation”, a kind of public awareness campaign accompanied by robust media promotion and physical questionnaires sent to every Hungarian household. These questionnaires, which employ no reliable polling methodology, ask a series of highly leading questions on topics ranging from migration to Geroge Soros, and the government regularly uses the results as political justification for its policies. The next “National Consultation” will deal with issues related to the judiciary, and the government’s media empire has already begun portraying judges as corrupt, weak, lenient on criminals and in collusion with NGOs funded by George Soros. This campaign could have a grave impact on the public’s trust in the judicial system, even if no new legislation curtailing judicial independence is introduced as its direct result.

Even prior to the 1989 democratic transition, presidents of Regional Courts in Hungary had an incredible amount of influence: they determined caseloads, case allocation, and otherwise exercised direct control over the working conditions of individual judges. Many of the current Regional Court presidents were appointed by Handó under controversial circumstances, and it is not immediately clear if Senyei, her successor, will replace them. The NJO still enjoys an unbalanced degree of power over the judges’ self-governing oversight body, the National Judicial Council. While Senyei may not abuse this power as his predecessor did, there are no visible efforts by the government to amend the problematic system despite calls to do so from the Venice Commission, NGOs and international judicial organizations.

In the Hungarian criminal justice system, the Public Prosecutor’s Office – led by Péter Polt, a long-time government ally and former member of the ruling Fidesz party – declines to prosecute certain sensitive political corruption cases, which consequently never reach the courtrooms. Over the past years, changes to various procedural rules made it more difficult for citizens to have their cases heard before a judge. While there are reasonable arguments for decreasing the caseload of Hungarian courts, some argue that these changes were not made only for the sake of efficiency, but to diminish the role of the courts in society in general.

A new, Europe-wide expression of judicial solidarity is one positive and important side effect of recent events in Poland, Hungary and elsewhere. Solidarity can strengthen the resolve of judges that defy attempts by powerful governments to interfere with their work. Judges from the Netherlands, France, Germany and elsewhere are uniquely positioned to explain the nature and seriousness of the challenges faced by their CEE colleagues to key decision makers in their respective countries.

For European integration to work, courts in each country must be equally independent so a ruling in any country will be accepted in all of the others. Political interference with the independent judiciary in any member state is therefore pulling at the very threads of a united Europe.

(This article was originally commissioned for the March issue of the German judges and prosecutors magazine Deutsche Richterzeitung, published by the German Judges Association. You can find the German version here and a detailed overview of the current situation in Hungarian here.)