22 October 2020
The new chief judge in Hungary: a potential transmission belt of the executive within the judiciary
The election of the new President of the Kúria (the Supreme Court of Hungary) is the next stage in the series of attacks of the governing majority against the judiciary. Parachuting Zsolt András Varga as one-party appointee to the top of the judicial system against manifest opposition of the National Judicial Council sends the clear message to the judiciary that the ruling majority is not willing to respect their independence.
Judicial independence has been under constant threat since the Fidesz-led governing majority took power in 2010. Steps undermining judicial independence included the centralisation of the administration of courts, the lowering of the mandatory retirement age of judges, prematurely terminating the mandate of the Supreme Court’s President, attempting — but eventually failing — to set up a heavily government-controlled administrative court system and exerting pressure on critical judges. Parachuting Varga as a political appointee to the top of the Hungarian judicial system is a new stage in the series of these attacks.
The analysis of the Hungarian Helsinki Committee reveals that election of Zsolt András Varga is a next stage in the series of attacks against judicial independence in Hungary. It exacerbates the constitutional crisis of the Hungarian judiciary, endangering the internal independence of judges and posing a clear threat to the distribution of powers and the protection of fundamental rights in Hungary.
Varga became President of the Kúria without spending a single day in judicial service. He has never served as a judge within the ordinary court system and never presided over a trial. He was member of the Constitutional Court, which in Hungary is not part of the ordinary court system. Its members are elected by the legislature (dominated by one party since 2010), therefore political considerations may easily override professional qualities in their appointment. Varga became a member of the Constitutional Court in 2014 as a one-party nominee.
Varga was elected in complete disregard for the manifest objection of the judicial self-governing body, the National Judicial Council (NJC). 13 out of 14 members of the NJC – which is constitutionally assigned to safeguard the independence of courts and judges – opposed his nomination. The NJC reminded of the total lack of his experience as judge and judicial leader and raised concerns regarding his impartiality and independence from other branches. The election of Varga is a clear message to the judiciary that the ruling majority is not willing to respect their independence. It also answers the concerns raised by human rights NGO’s and international stakeholders.
The excessive powers held by the President of the Kúria vest Varga with a decisive role within the whole judicial system and especially, within the top tier.
– administrative powers permit him/her to determine judicial careers within the Kúria (e.g. appointment, evaluation, promotion and relocation of justices);
– managerial powers authorise him/her amongst others to exercise employer’s rights over Kúria justices (e.g. the right to initiate disciplinary proceedings against judges)
– he/she has right to establish the case-allocations scheme of the Kúria and allow derogations from it;
– jurisprudential powers empower him/her to play a decisive role in the unification of the jurisprudence of lower tier courts and shape the mandatory interpretation of the law.
Each of these powers have a strong impact on the internal independence of the judiciary, and their effect is multiplied by the fact that they are unified in one hand. Taking into account the above functions it is evident that, if he does not keep his distance from the executive branch, Mr Varga may act as a transmission belt of the executive within the judiciary.