Hungarian judge requests European Court of Justice to examine his own independence

Judge Csaba Vasvári suspended a criminal case to request the European Court of Justice to examine if the long-known bad practices of the Hungarian court system are compatible with European law.

The judge of the Pest Central District Court suspended a criminal case against a foreign citizen and requested the procedure of the European Court of Justice, as Index was informed. The motion that Index acquired requests the ECJ to take the maladministration of the Hungarian court system under scrutiny.

Vasvári says that there is a risk that if he convicts a foreign national, the convicted person could turn to international forums to annul the sentence based on the damages done to judicial independence in Hungary. 

The specific case in question is against a Swedish citizen who is charged with misuse of ammunition, and prosecution "only" requested a fine to be issued instead of a prison sentence. But the procedure did not become noteworthy because of the case itself; the defender of the accused requested the judge to initiate a procedure to acquire the preliminary ruling of the ECJ, and judge Vasvári complied. He has sent the following questions posed by the defence to Luxembourg:

• Is it compatible with EU law that the accused's right to use their first language was not properly guaranteed, meaning that no interpreter (or no qualified interpreter) was available?
• Is it compatible with the principles of rule of law and judicial independence as set out by the Treaty on the Functioning of the European Union that the leader of judicial administration, the President of the National Judicial Office fills judicial leadership positions in the long-term with sidestepping the open calls to submit applications for the job? The President fills these openings by temporary - instead of fixed-term - appointments, which are in no way controlled or approved by the judicial self-governance. These leaders make decisions about case assignation, therefore no Hungarian or foreign nationals can ever be sure that their case was assigned to a certain judge without ill influence, which may violate the right to a fair procedure, which is protected by the Hungarian and the European legal system alike.
• The fact that ever since 1 September 2018, judges make less money than prosecutors of the equivalent rank and experience also calls compliance with EU regulations into question, especially that this fact is only counterbalanced by discretionary decisions about bonuses made by judicial leaders. This latter one raises the question if the Hungarian court system does indeed guarantee the conditions of judicial independence, for instance, if it rules out the risk of judges being influenced through bonuses.

Based on these questions, the ECJ will have to examine the oft-objected practices of the National Judicial Office's President Tünde Handó that leave the judiciary in a vulnerable position financially and career-wise. Krisztián Cseterics, the defender of the Swedish accused told Index that for an attorney, it is no abstraction for an attorney to initiate a procedure to directly examine whether or not the right to a fair trial is respected. He admitted that the specific case and the Swedish defendant's plea about the use of his first language mostly served to "provide a good opportunity" for raising the rest of the questions as well, but he stated: The questions concerning judicial administration and leadership practices that have an impact on judicial independence are highly interconnected."

Is there an effective balance to Handó's powers?

The significance of this request is that in early June, ruling coalition Fidesz-KDNP's parliamentary majority rejected an initiative to remove Tünde Handó from her position put forth by the National Judicial Council (NJC) the overseeing body elected by and from the judiciary on the grounds of the president becoming unworthy of the position. All of the legal concerns raised in the initiative remained unanswered, and supermajority voted against removing Handó.

The Government's defence for their 2012 justice model that prompted an international outcry had always been that this body of judicial self-governance provides a sufficient balance against the reinforced powers of the National Judicial Office's one-person leadership, which is why it does not jeopardise judicial independence, but the National Judicial Council issued the following comment after the rejection of their initiative:

"A decision like this confirms the worries already voiced before in domestic and international forums: At the moment, there are no functioning checks or constitutional control methods over the powers of the NJO's president, therefore, the Hungarian justice system works under direct submission to legislative power. Tünde Handó's activity has no internal control within the judicial branch of power."

The fact-finding mission of the European Association of Judges found it similarly, saying that the constitutional crisis unfolding in the Hungarian judiciary could be traced back to the illicit behaviour of the NJO's President. The President of the Venice Commission called the roles going with the position the most problematic phenomenon concerning Hungarian rule-of-law. The European Commission's recommendation stated from before the Hungarian Parliament's decision to reject the request to remove Handó: 

"Checks and balances, which are crucial to ensuring judicial independence, have been further weakened within the ordinary courts system. The National Judicial Council faces increasing difficulties in counter-balancing the powers of the President of the National Office for the Judiciary. This gives rise to concerns regarding judicial independence."

Disregarded warnings

But the National Judicial Council requesting the removal of Tünde Handó was their last resort, and it was swept off the table without a substantive response. The main task of the Council is to guarantee the legal operation of the justice system by notifying the National Judicial Office about any violations so the Office can launch an investigation. The reason the Council requested the removal of the Office's president in the first place was exactly because these notices were disregarded. When the Council submitted their request to remove Handó to the Parliament, they stated that the Council issued eight warnings about violations concerning, amongst others, the appointment practices of the NJO's President. 

As the Council's report from February 2019 assessed, all of these notices were disregarded by the President, and she also failed to fulfil several of her legal obligations, resulting in 20 empty leadership positions in the Hungarian justice system, therefore making the operation of service courts (hearing, for instance, judicial disciplinary cases) impossible.

Judge Vasvári also affected

The judge hearing the case concerned by the preliminary ruling request, Csaba Vasvári was also affected by the practices the NJC complained about. In 2017, he filed a labour lawsuit against the President of the National Judicial Office and the President of the Budapest Regional Court, as he submitted his application to open calls for judicial positions on two occasions, and despite the fact that Vasvári finished in first place on both of these calls, these procedures were deemed to have concluded without results by the Office, with no explanation given.

On first degree, the Budapest Administrative and Labour Court decided in favour of Vasvári last March, their decision stated that Handó had definitely misused her powers when she deemed the application procedures ineffective and thus preventing Vasvári from becoming a judge at the Budapest Regional Court. On appeal, the case was transferred to the Győr Regional Court which found that the presidents of the NJO and the Budapest Regional Court had no legal capacity to act in the lawsuit, therefore it could not have been filed against them. How judicial leaders could be held responsible remains an open question.

Cover: Entrance of the ECJ in Luxembourg (MTI/EPA/Julien Warnand)

This article is the slightly amended translation of the original published in Hungarian by Index.