BUDAPEST SENTINEL (a NewsLanc sister publication): “The problem today is that judges are not paid based on performance. In order for someone to earn more, they need to move up the hierarchy. This involves applying for the position. The evaluation of the application depends on OBH (National Judiciary Office) president (Tünde Handó). If the OBH president does not like the person scoring the highest number of points, then she can appoint the second or third place candidate. If none of the applicants are to her liking, then she can annul the results of the tender. Knowledge of this forces many judges to seek the government’s good graces.” – Péter Hack, legal expert
Translation of Krisztián B. Simon’s interview with Hungarian legal expert Péter Hack entitled “They cannot be considered to be acting in good faith” (“Nem nevezhető jóhiszeműnek”) appearing in May 12th edition of Magyar Narancs.
Control over government power has effectively ended in Hungary. The prosecutors are following Orbán’s script. On the other hand, it is still possible to find judges committed to the rule of law in the courts, but it is questionable how long they can remain.
Magyar Narancs: Tibor Ibolya, cheif prosecutor for Budapest, talked two months ago about how a world class and quick investigation took place in the Quaestor matter. By contrast, the City Court complained that the indictment is deficient and called on the City chief prosecutor’s office to supplement it. Which one is right?
Péter Hack: According to the law governing criminal procedures, the court’s word is what counts. If it finds an indictment to be deficient, then it can request supplementary materials, against which it is not possible to appeal according to the laws in force. At such times the prosecutor has two possibilities: either remedy the deficiencies and continue the procedure accordingly, or assume the risk that the court throws out the case before it goes to trial on the grounds that the indictment does not satisfy the legal requirements. The court says that the prosecutors poured on it over one hundred thousand pages of documents and six million files without indicating which documents prove what. If the court has to analyze all of this, then there is no chance of the trial ending within a rational period of time. In a normal case, while the prosecutors investigate, it is possible to assign a group of 15-20 detectives to discover the facts of the case. The judge, however, is alone. In the case of a five-member judicial council, it is possible for two professional judges to deal with the matter, but not more. So every rational principle supports the notion that the court should not have to process such an incredible amount of data.
MN: Prosecutors defend their actions with reference to the law modified the first of January 2014 according to which the indictment needn’t specify what evidence proves what.
PH: That is not true. Such a legal change does not suspend commonsense. It must be clear from the indictment what the factual basis for the indictment is and who they are indicting—and what evidence supports the indictment. It is impossible that a matter involving six accused and 120 witnesses for the prosecutor should fail to indicate which witness’ testimony pertains to which of the accused and which action. The news is that in this case the prosecutor indicated that it will state these things over the course of the case. This practically makes a trial impossible. It may be that what the prosecutor is doing is acceptable from a strictly formal point of view, but it cannot be considered good faith—it does not ensure the successful conclusion of a trial. By the way, this leads us to a problem that has long existed: we have succeeded in creating a system in which prosecutors cannot be held accountable. In 2002 a big debate took place when it was revealed with regard to changes to criminal procedures that the language included the expression “lawful indictment”. This addressed the fact that it was often not clear to the courts who the subject of the indictment was, what the factual basis for the indictment was, or what criminal acts were the subject of the indictment. For this reason, they asked that the law be changed to enable the court to throw out the case if the indictment was not lawful. Previously, this was not the case. At that time, it was not necessary for prosecutors to participate in court proceedings in the vast majority of cases. Practically the prosecution would send the indictment which the judge then had to struggle with. If he failed, that impacted the judge’s statistics. No problem ever arose for prosecutors as a result of this. To this day this mentality is strongly present in prosecutors. It appears that in the Quaestor matter prosecutors are going to take advantage of this and throw up their hands just as in the red sludge case.
MN: How far back do these problems go?
PH: To the 1950s. The logic of the new socialist prosecutors office is that the prosecutor is the one who fulfills the state’s requirements in criminal cases and is present in both the investigation and the trial, and he represents the socialist legality. That also means that the prosecutor’s office was always right because there was no institution that could supervise its activity. Even the court cannot penalize the prosecutor for doing something wrong. No information about how prosecutors’ work is evaluated by their superiors is made public. Nobody knows whether a prosecutor is held to account for objectively handling a matter badly. Innocent people were sentenced to prison for the Mór bank robbery that resulted in eight deaths. Everybody in the profession knows who the judge was who found the accused guilty on the first level—he is burdened with the responsibility. But they forget that from the outset the matter was given heightened attention by prosecutors, and that a prosecutor believed from the very outset that László Hajdú and Ede Kaiser were the perpetrators, he was the one who indicted them, he was the one who asked that they be found guilty in the speech he delivered at their trial. This is not known in wider circles because the institution of prosecutorial responsibility is not made public. Despite the fact that resources made available to prosecutors as of late are unprecedented, as are the number of prosecutors, prosecutors are doing more and more favors for the government. For example, it was revealed that in recent years important criminal justice system bills were prepared by the prosecutor’s office. Cases previously handled by the Constitutional Court are frequently assigned to the prosecutors office.
MN: Two years ago socialist MP László Varga confronted chief prosecutor Péter Polt with the fact that if an opposition MP reports the governing party, they do not deal with the matter, but that in cases when the reverse is true, the prosecutors jump on it. Is it possible to say that prosecutors are under political pressure in Hungary?
PH: Absolutely. While the legislators declared that they created a prosecutor office that is politically independent, in reality that is merely an appearance. The current prosecutorial legal system was created following 2010, and they emphasized that they were taking into consideration the Venice Commission, that is, the European Council’s legal advisor’s accepted document setting forth general principles regarding judicial independence and the situation of prosecutors. It lists a number of good practices, for example, that an independence prosecutor is better than one subordinate to the government, and that it is better if the chief prosecutor is elected by a qualified majority as this ensures political consensus. The Hungarian government changed the law in force with regard to the system and method of this so that a qualified majority was necessary to elect the chief prosecutor rather than a simple majority. Except the two-thirds parliamentary majority arising from the disproportionate electoral system meant that even a qualified majority did not mean political consensus. Nor did the fact that the chief prosecutor was nominated by (former Fidesz MP) Pál Schmitt, who was loyal to Fidesz, ensure (the former’s) independence. Schmitt recommended the person his predecessor László Solyom did not want to nominate again in 2006 because he had doubts about him. If we seeks signs which indicate that Péter Polt is close to Fidesz, it is enough to Google his name to see a few photographs of him with party officials and government officials at restaurants or stadiums. In another legal culture this would raise the question of conflict of interest. Just as in the Quaestor and the MNB matters it turns out the chief prosecutor is affected one way or the other.
MN: Returning to the Quaestor case: what can the prosecution achieve by failing to submit the supplemental documents by the end of May?
PH: Mainly that the court throw out the case. Over the course of a normal trial, who Quaestor CEO Csaba Társoly’s political connections are and who he is on good terms with will certainly be revealed. However, if at the end of the month the court ends the procedure against him, then he will be set free—to which a lot of politicians would not be opposed. Moreover, the situation could easily develop like the K&H case, where even after 13 years we are only past the first-level court decision. I believe there are those who would like for a light sentence to be handed down ten years from now or later.
MN: After 2010 there were a number of political trials that lasted years, and contradictory decisions were handed down by the first- and second-level courts or even the Curia. Such was the case of Gyula Molnár, the former mayor of Budapest’s 11th district for abuse of power, or Ferenc Juhász, the former defense minister, for malfeasance. The court decision absolving Ibolya Dávid, the former president of MDF and her fellow party member, Károly Herényi, was quashed by the second-level court, and they received a reprimand after the retrial of the Ud Zrt. case. What can be the cause that the courts are incapable of conducting these trials in a routine manner?
PH: Independent of the trials mentioned, there can be many different causes for first- and second-level courts ruling differently on a given case. This is part of the system. Law is not mathematics where no matter how many times you add up the numbers, you always get the same result. It is not at all certain that if ten judges were to try the same case simultaneously, they would all conclude the same way. There’s a 99 percent chance that they will come to the same conclusions, but there is the one percent. To this the construction of law says that a later judge, that is one higher in the hierarchy of courts who has more experience, is right—even if theoretically this is not necessarily the case.
MN: How independent do you consider the courts to be?
PH: Control over government power has effectively ended in Hungary. Fidesz faithful now head institutions which according to the Basic Law are supposed to be independent, often leaving their seat in parliament to assume the position. Among the rules governing the appointment of Constitutional Court justices is one which says that government officials must leave office for at least five years before being appointed to the Constitutional Court. But there is nothing to prevent a sitting member of parliament from becoming a Constitutional Court justice. In this way Fidesz has been able to fill the Constitutional Court with loyal people. And today, if the Constitutional Court renders a decision that is actually in keeping with the Constitution, that makes the papers because it is unexpected. I am referring to such rare occasions as the MNB case where the Court ruled that funds handled by the MNB foundations remain public funds. Similar things can be said of the state auditor’s office and the commission for the rights of citizens—everyone not loyal to Fidesz has practically been forced out. It is only with the courts that they have not been able to do this completely. However, I note that they experimented with two significant offenses. The first was the decrease in the mandatory retirement age of judges in gross violation of every international norm, in which they effectively decapitated the leading echelon of judges. The second step was the creation of the National Judiciary Office (OBH) in place of the National Justice Service Council, headed by one individual who is not far from Fidesz (Tünde Handó whose husband is prominent Fidesz politician József Szájer—ed.). The fact that the courts do not work the way the Constitutional Court does which today rules in favor of the government 90 percent of the time, can be attributed to the fact that an entire system cannot change from one day to the next.
MN: How important do judges think it is not to be dependent on the government?
PH: The Hungarian faculty of judges is rather complex. A significant number of judges over the age of 50 were appointed under socialism, and they learned their profession from the leaders of that time. In the 1970s and 1980s judges were not as dependent on the system as they had been during the preceding decades. Nevertheless, judicial appointments and leadership positions were reserved for party members. In order for someone to be the head of a regional court, the approval of the local party committee was needed. In order to obtain a leading position in a county court, the county party committee’s approval was needed. In 1989 there appeared a monograph on judicial independence, and in that the author wrote that the biggest problem with the courts was that the same party committees exercised legal authority, and it would be much better if a higher level party committee would do so. So even at that time it was completely accepted that in order to be a successful judge, you needed to be on good terms with those in power. On this judicial faculty—whose social status and income was not much higher than that of teachers—fell the task at the time of the system change of public safety, and the performance of important responsibilities such as the registration of parties and civil organizations, foundations, as well as overseeing election questions. In the 1990s the Ministry of Justice under István Balsai sought people for leading positions solely based on political considerations, often going against the will of the judicial faculty. This mean that the knowledge remained that certain expectations have to be satisfied. Of course, there were positive developments at this time. Under Balsai for example, judges received a salary increase, which decreased their dependency. In 1998 the National Justice Service Council was established which placed express emphasis on independence, and that judges’ ability to move up not depend merely on connections.
MN: Can the impact of this be felt today?
HP: The problem today is that judges are not paid based on performance. In order for someone to earn more, they need to move up the hierarchy. This involves applying for the position. The evaluation of the application depends on the OBH president (Tünde Handó). If the OBH president does not like the person scoring the highest number of points, then she can appoint the second or third place candidate. If none of the applicants are to her liking, then she can annul the results of the tender. Knowledge of this forces many judges to seek the government’s good graces.
MN: But what happens if someone is at the top in the form of a Curia judge? Do judges at the top have greater freedom? Is it merely coincidence that the Curia changed the National Election Committee (NVB) decision in a manner befitting an independent institution, and validated MSZP MP István Nyakó’s question? Or that it said that MNB money does not lose its public money quality and that György Matolcsy has to issue the appraisal for the Eiffel Palace?
PH: That depends on which judge participates in the given council. The Curia handed down in the past few months a few truly shocking decisions, including the one rejecting the referendum on the Olympics and permitting the referendum on the refugee settlement quota. The latter is incomprehensible to me, as national referendums can only be held on issues falling under the jurisdiction of the National Assembly. If this was allowed, then with the same strength you could hold a referendum on whether we want the Hungarian national team to win the European championship. Generally speaking, I believe that, in contrast to the prosecutors, where everyone is dependent on the chief prosecutor, the court system is less hierarchical and for this reason individual judges do not depend on their superiors. At present there are still many in the courts who consider important the ethos of independence as this was the reason they became judges, and among them a number have made it as far as the Curia, where their activities realize their professional and judicial independence. But there are also Curia judges for whom promotion is important. One hears rumors about high-ranking judges talking about how rendering decisions that go against the will of the government can be felt throughout the entire profession, for example with judges’ wages. Meanwhile, prosecutors continue to make more than judges. I note that law school graduates prefer to work for prosecutors today, contrary to the first two decades after the system change. In addition to financial considerations, prosecutors are less likely to find themselves in the spotlight, and in the case of conflict it is not prosecutors’ names that are made public. When, after Fidesz returned to power, the committee led by Gergely Gulyás criticized judges for arresting people during the 2006 disturbances, nobody asked why prosecutors brought those cases before the court.
MN: In the past few years governing party representatives have on many occasions indicated that some cases did not end the way they had hoped. Szilárd Németh, for example, proposed parliament discuss the “excessively lax judicial decision” in the case of the red sludge disaster and the Miklós Hagyó cases. Even Antal Rogán felt that Eva Rezesova did not receive a sufficiently severe sentence.
PH: And then the second-level court handed down a judgement that was to his liking. (The Slovak millionaire was sentenced to nine years imprisonment for causing the death of four individuals – B.S.K). The courts are not perfectly functioning checks and balances. And as I have already mentioned, it is not a matter of indifference which judge is trying which case. It was for this reason that the Orbán system availed itself for a while of the possibility of the chief prosecutor assigning cases to courts which otherwise had neither authority nor relevance. Afterwards they made it possible for the OBH president to assign cases or even transfer judges from one court to another. The official reason for this was that the courts were less overburdened in the countryside. But what was really going on was that the government had greater confidence in the courts of the countryside. It should also be mentioned that the judicial system was beheaded in recent years. The president of the highest court, András Baka, was removed from office. Afterwards, they created a justice apparatus in which one person, Tünde Handó, has the final word over every decision, from which court gets new furniture, a new roof, or a new computer system, to who occupies what position. And that person is famous for being linked to Fidesz, even if in a given case she renders a decision which does not appear to serve Fidesz’s interest. Such was the red sludge case, when she warned the government not to threaten the courts. After that, verbal aggression on the part of the government stopped. But I am not convinced that they are not preparing somewhere a bill to ensure that future judgements are even closer to the Fidesz concept of “justice.”
