Controversial leader of Hungarian judicial administration is on her way to the Constitutional Court

Two minutes before the meeting of the Hungarian Parliament's ad hoc committee set up to name a candidate for the seat on the Constitutional Court vacated by judge István Stumpf, Fidesz submitted their nomination - Tünde Handó, the current president of the National Judicial Office (NJO), the often-criticised administrative body over the Hungarian court system since 2012. As Fidesz has a majority in the committee, they are likely to approve Handó's nomination.

The nominee's hearing is scheduled for Tuesday morning.

Her mandate at the helm of the NJO would only expire in the middle of next year and the regulations do not allow for reelection. But that was not the only reason why rumours about Handó being "saved" in such a manner had circulated within the Hungarian judiciary for months, as Handó had been the face of the 2012 judicial reform, critics of which say it has a chilling effect on judicial independence.

Handó's battle against the National Judicial Council

Tensions between the NJO and the judiciary's highest forum of self-governance, the National Judicial Council (NJC) had been mounting since last spring. Then, 17 members (and alternate members) of the 28-member council had resigned, and Handó subsequently declared the NJC's operation unlawful, but the NJC maintained that they still have a quorum. Handó turned to the Ombudsman last November to resolve the dispute, however, she still hasn't called together the meeting of delegates to elect new members into the NJC, which would resolve this situation without the Constitutional Court's procedure. 

After the Ombudsman turned to the Constitutional Court for interpretation of the governing regulations, their procedure had automatically commenced, and based on that, Handó called the NJC, that is supposed to oversee the NJO, illegitimate. In June, the Fidesz majority in the Parliament's Justice Committee blocked a proposal put forth by the NJC to remove Handó from her office and dismissed the legality issues included therein. The main complaints of the NJC were:

• Handó had disregarded the legality warnings of the NJC on eight instances, and defaulted on fulfilling several of her duties as president for over 90 days,
• The President's practice of unlawfully reassigning ordinary judges to other courts violates the right to a lawful judge,
• Evaluating judicial leadership position applications, Handó regularly appointed temporary leaders instead of appointing the candidates recommended by the competent bodies (the President has the power to declare calls for applications unsuccessful and annul proceedings, for a deeper explanation, see GRECO's assessment here)
• Handó submitted her proposal for the state budget's chapter concerning the judicial system without consulting the NJC in 2018 and in 2019.

The Government's defence for their 2012 justice model that prompted an international outcry had always been that this body of judicial self-governance (the NJC) 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 statement after the rejection of their initiative:

" 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. "

Based on similar complaints, a Hungarian judge recently requested the European Court of Justice's preliminary ruling on his own independence, a motion which the Hungarian supreme court, the Curia found unlawful in a procedure initiated by Prosecutor General Péter Polt, which could end up preventing the ECJ from inspecting the question of Hungarian judicial independence.

International criticism

The Hungarian court system and prospective constitutional judge Tünde Handó's activities had drawn considerable flak from international organisations as well. The European Association of Judges (EAJ) for instance, conducted a fact-finding mission in Hungary, and their report assessed:

Since then, the EAJ had addressed a letter concerning the critical state of the Hungarian judiciary to the outgoing president of the European Commission Jean-Claude Juncker as Népszava reported last week. Christian Wigand, the Commission's spokesperson confirmed to the paper that they did receive the letter and added that there is an ongoing Article 7 procedure against Hungary and the Commission shares the concerns of the European Parliament about the Hungarian rule-of-law situation.

The President of the Venice Commission called the powers of Handó's position the most problematic phenomenon concerning Hungarian rule-of-law. The European Commission's recommendation issued before the decision to reject the NJC's proposal to remove Handó stated: 

"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."

This article is based on the original published in Hungarian by Index.