Professor Dr Péter Hack, Head of the Department of Criminal Procedures and Corrections at Eötvös Loránd University explains the reasons behind the judges' concerns.
In Their Own Words: The following is a slightly edited text of Péter Hack's summary of the judges' frustrations over government measures eroding their independence to the Hungarian International Press Association on February 24th.
Péter Hack: "As has been mentioned, it is really historically unprecedented that the judges had a public demonstration here in Budapest.
They had a smaller demonstration a couple of weeks earlier, and now it's a bigger demonstration [estimated at some 1,000 protestors].
In November, they collected signatures on behalf of judges, which was again unprecedented. Right now there are about 2,800 judges in Hungary, and more than 1,000 of these signed a petition against the way that the government is handling their issues.
There is an association of judges, [MABIE], a volunteer group. Any judge can join this association, and it organised this movement among judges and among court clerks as well.
At the demonstration, they had three topics; one concerned the legislation process regarding the judiciary, the second concerned the freedom of speech of judges, and the third was the salary [issue].
They were very clear in saying that salaries was not the largest issue, the largest is the way that the government is handling the courts and the judiciary.
Practically, the complaints of the judges regarding the legislative processes are not special. The government does not treat the courts in any special way, the government treats everybody in the same way regarding legislation.
When there is legislation that is important for the government for some reasons, they practically avoid the normal legislative process.
The law, which was adopted by the Fidesz government in 2011, says that any draft legislation should go through a consultation with those who are affected by the legislation before the debate in parliament. [Such consultation] in some cases will be with the trade unions, in the case of the judges, it should be the representatives of the judges.
But, the Fidesz government in the last 15 years has been using a special tactic when they want to avoid that kind of consultation.
They ask an individual MP to present the draft, and they interpret the law in a strange way, saying that when an individual MP presents the draft [ie a private member's bill] there is no need for consultation.
So, they [the government] practically circumvent their own rules. A lot of the public do not realise this, and they accept the answer that, sorry it was not a government draft, it was an individual MP's bill, so there is no need for consultation.
But judges are trained people, obviously: whose judgement can you trust if you don't trust the judgement of judges?
So, the judges understand that this is a cheap trick, to avoid real consultation, and they argue that this kind of legislative process is against the principle of rule of law.
This was the first point.
The second point: freedom of speech of judges. Obviously, judges are not allowed to comment [on] their own cases, and that's right. This is the case everywhere.
But judges are allowed to comment [on] their situation, [on] the situation of the courts, and it's not just their right, it's their obligation to discuss it if they find something which is violating or endangering the independence of the judicial system.
And in the last couple of years there have been occasions when judges did this, they raised their voice against a certain solution, and within the court system they were rebuked by their superiors.
Photo: Péter Hack, speaking on an ATV television show. Source: https://www.atv.hu/
The third issue is the salaries of the judges and the clerks.
The really tragic situation up to December involved the clerks of the courts. They had [salaries of] about HUF 250,000 per month, which is about half the salary of a shop [worker].
And, you know, these clerks can change [jobs] easily
One of the largest problems right now for the courts, according to my friends and former students working in them, they are complaining that they don't have clerks, so they are not able to do their work, because there is nobody who can print the decisions and send out the different papers."
Moderator: "So it's basic administration?"
PH: "It's basic administration. There are not enough people because for that salary there is nobody going there, and those who were there are leaving, because they are not able to feed their families.
Regarding the salary of the judges, according to the judges' association, in the last couple of years they've lost 40% of their salary through inflation. So, in real value, they lost 40%.
Even in my time, in the early '90s [as an MP], we wanted to establish a system whereby judges' salaries did not depend on a government decision.
It should be an automatic mechanism, because in this way, judges' salaries would be valorised in the same way as pensions are valorised, according to [inflation]."
Moderator: "And MPs salaries too!"
PH: "And MPs salaries are obviously valorised! But, throughout the years, the governments were not ready to do that, although in national budgetary terms, it's not a big sum. Altogether right now there are about 2,800 judges in Hungary, 100 of these work in the kuria [the supreme court] and the rest at other court levels, the majority in the local courts, which is the starting part of a judge's career.
Raising their salaries automatically every year would not be a large cost for the budget.
So, judges are complaining that the government is using their salaries as a bargaining chip."
THE STRAW THAT BROKE THE CAMEL'S BACK
"The whole scandal broke out in November, when the government signed an agreement with the heads of the administration of the judiciary.
In 2011, the Fidesz changed the administration of the judges. Up to then, it was a self-governing body, which [made] every decision regarding the judiciary, the personnel decisions and the distribution of the budget money. This was [the responsibility] of this 15-member body.
Among the body, 10 were judges, nine of them elected and the President of the Supreme Court was the tenth. Five of this council members were from outside the judiciary, the Minister of Justice, the Chief Prosecutor, the Head of the National Bar Association, and two members of parliament were in this 15-member body.
So, that was a self-govening body, because every decision was made by a simple majority, and the judges had a two-thirds majority within it, and it was a very strong guarantee for their independence, because there was no way for the government to intervene.
In 2011, the Fidesz government changed the administrative structure. They kept the body of judges, but they created a body of 15 elected judges, but it became just a supervisory body, without any real power.
At the same time, the government established the National Judiciary Office. The head of this office was elected by the parliament after the appointment of the nomination of the president.
So the President nominated a person, and parliament elected the nominee with a two-thirds majority for nine years.
And this person became the head of the administration, and his or her office got all the rights regarding decisions regarding the personnel of the courts and regarding the appointment of chief judges for different courts and so on.
They also changed the name of the Supreme Court into the Kúria, and they used this change to replace the former president of the former supreme court, Mr Baka, who was one of the speakers on Saturday.
He was elected for five years, but after two years he was replaced [by the will of the government].
So, right now there is the Minister of Justice, the Head of the Judicial Office, the Head of the Judicial Council and the Head of the Kúria, these are the four key persons [over the judiciary].
[In November], these four persons signed an agreement, which blew the minds of the judges, because it said the government guarantees an [increase] in the salary of the judges.
That [increased] salary will be satisfactory for the judges. What annoyed them was that in this agreement, the representatives of the judges accepted that in exchange for this salary raise, they would work with the government to ensure the efficiency of the courts.
[But the judges' representative] agreed to this without seeing what was in the reforms!
It was a blank cheque. It created a scandal, which resulted in the resignation of the head of the Judicial Council, because he was the person who signed it. The Judicial Council later said it opposed this agreement. They agreed that the increase of salary was needed, but not in exchange for any kind of [unstated] reforms, without knowing the legislative details.
The government said that the deal is done, we are bound to the deal, we will raise the salary and we start the reforms by [private members' bills], and in December they adopted some reforms.
Some of these are breaking with the hundreds years of judicial history in Hungary.
As in the majority of continental European countries, the career judge system [is established in Hungary], so university students go to the courts after graduating from university.
So, after five years they go to the court house as trainee judges, and work there for three years, then they have an exam, then they have to work for one year as a subsidiary judge, and then, when they reach the age of 30, they can be judges.
Right now, the vast majority of judges started their careers as fresh university graduates, and have spent their whole lives in the system.
Then, at midnight on some December night, as a part of the budget, the government decided that from January 2025, the minimum age of judges should be 35. They even put this into the constitution.
It does not affect those who are already in the system, but it affects everybody who is planning to be a judge.
In addition, everybody who wants to be a judge should work for two years out of the court system as lawyers, which is a step towards the British-American system, where barristers can be judges.
It might be a good idea, but it was without consultation with the academy, with the judges. They [the government, simply] implemented it, and this is one of the elements why the judges are demonstrating.
Closing with one comment: I think that in this case you can clearly see the difference between the liberal and the illiberal way of thinking.
The liberals trust in institutions; they establish institutions, create the integrity of the institution, and it doesn't matter who is the head of the institution, the institution will fulfill its task.
The illiberals trust in people, so they don't care too much about the institution, they care about people, they trust in individual persons and put a person into position, and create an institution around that person.
When they changed the administration, the first head of the Judicial Office was Tünde Handó, who's right now a member of the Constitutional Court.
She was a judge in a labour court here in Budapest, but she was also the wife of a Fidesz MEP, Mr József Szájer, and she was one of the best friends of Mr Orbán's wife, so there was personal loyalty and trust in her.
At the same time, they elected the head of the Kúria, who was a nice man, Mr [Péter] Darák. They trusted him. But four years ago, Mr Darák's term ended and they elected Mr András Varga, who is head of the Kuria right now.
Throughout his life, Mr Varga has been a pro-Fidesz person. He was a deputy chief prosecutor with Mr Péter Polt for many years, he was the Dean of the Catholic University Law Faculty, he was a member of the Constitutional Court.
He wasn't a judge, but before he was elected, Fidesz changed the rules and said that everybody who has been a Constitutional Court judge could be a judge, and that was the reason that they could elect him.
And right now, there is very good contact between the head of the Kúria and the government. They had a separate agreement, the salary of the Kuria's 100 judges was raised much, much bigger than the salary of the others, because he had a good personal relationship and he could achieve this.
The problem is that the government trusts these people, but the judges do not. So, there is a deep mistrust in the system among the judges, and in the long term, this is very dangerous.
Péter Hack was a member of the Democratic Opposition, the anti-Communist, dissident opposition group in the 1980s and a member of parliament for the liberal Alliance of Free Democrats (SzDSz) from 1990 to 2002.
Between 1994 - 98, he was chairman of the Constitutional and Judicial Committee, responsible for the judicial reforms at that time, in the Socialist-SzDSZ coalition government.
Since 2002, he has been an academic, with key research interests in the independence and accountability of the judiciary.
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