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Hungarian judge asks the CJEU: Is the Hungarian judiciary independent?

admin - August 13, 2019 - Hungary; Rule of Law; CJEU; Judicial Independence

 

In July, a Hungarian Central District Court Judge suspended a criminal case to make a preliminary reference request to the Court of Justice of the EU (CJEU) on the independence of the Hungarian judiciary. The request asks the CJEU to scrutinise the widely criticised practises of the Hungarian court system and to determine whether the excessive powers of the President of the National Office for the Judiciary, Tünde Handó, are compatible with EU law.

The case concerned a Swedish national who allegedly misused ammunition in Hungary in 2015, and charges were brought against him. The defence lawyer involved in the case asked the judge, Csaba Vasvári, to make the request for a preliminary ruling, and Vasvári submitted a number of questions.

The first question asked the court to examine the compatibility of national practice with EU law, since the defendant’s right to use their first language was not adequately guaranteed by providing access to a qualified interpreter. The issue is of crucial importance from a fair trials point of view, but is distinct from the other questions, which are focused on judicial independence.

The second question asked the court to consider whether it is compatible with the principles of the rule of law and judicial independence that the head of the court administration, the President of the National Office for the Judiciary, is able to fill judicial leadership positions, by sidestepping the procedure of open calls to submit applications for the job. The current President is filling these openings with temporary appointments, which are in no way controlled nor approved by the judicial self-governance. Similarly, the position of the President is fully dependent on the legislative branch, which elects, reviews and removes individuals in this influential role.  

These leaders have a powerful role to play: they make decisions about case assignation, they recruit and evaluate the work of judges, and are able bring disciplinary procedures. Can anyone going through criminal proceedings in Hungary be sure that their case was assigned to a certain judge without ill influence?

Finally, Hungarian judges have not seen their wages rise over the last 15 years. Since 1 September 2018, judges earn less than prosecutors of the equivalent rank and experience, which also calls compliance with EU law into question. This is particularly concerning when judicial pay also allows for discretionary decisions about bonuses – or performance related pay – made by the judicial leaders described above. The latter raises the question if the Hungarian court system does indeed guarantee the conditions of judicial independence, for instance, taking into consideration the risk of judges being influenced through bonuses.

The questions follow an attempt in May by the National Judicial Council of Hungary to put forth an initiative to remove Handó from her position. The initiative failed when Hungary’s parliament rejected the proposal without a substantive response. Prior to the initiative, Handó had disregarded several notifications issued by the Council, including concerns over her appointment practices. The European Association of Judges, the President of the Venice Commission, and the European Commission have all raised concerns over Handó’s excessive powers and judicial independence in the country.

Endangered impartiality and independence of courts derogates fair trial rights and rule of law in Hungary. Fair Trials continues raising concerns over the alarming situation and calls for the EU to take action to protect the rule of law in its Member States.

You can read more about the topic on Verfassungsblog, where Hungarian Helsinki Committee Legal Officer Dániel G. Szabó has written a more in depth analysis, A Hungarian Judge Seeks Protection from the CJEU – Part I.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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