Hungary to make controversial figure member of Constitutional Court

Péter Polt's reappointment was recommended by President János Áder, and Handó is to take the vacated place of Constitutional Court judge István Stumpf after her nomination by the ruling Fidesz-KDNP coalition.

Under current regulations Handó could not have been re-elected as President of the NOJ after her mandate expired in the middle of next year. It has been rumoured in the judiciary for months that she would be “saved” by making her a judge at the Constitutional Court.

Prime Minister Viktor Orbán’s Fidesz party reformed the judicial system in 2012, and critics say the changes curbed judicial independence.

In the spring of 2018, 17 members (and alternate members) of the 28-strong National Judicial Council, Handó’s supervisory organ, had resigned. Although she subsequently declared the NJC’s operation unlawful, the Council 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. 

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. According to a report by local news portal index.hu, 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)
• Handó submitted her proposal for the state budget's chapter concerning the judicial system without consulting the NJC in 2018 and in 2019.

In defence of the 2012 justice model Hungary had always claimed 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 May 2018 the Hungarian Judiciary is facing a very grievous situation which in some aspects comes close to a “constitutional crisis” due to the activity of the President of the NOJ who denies any collaboration with the National Judicial Council. Thus, the two bodies of judicial self-government, the National Office of the Judiciary (NOJ) and the National Judicial Council (NJC) cannot work together any longer which leads to a blockade, and thus to the impossibility of the NJC to perceive its supervisory tasks.

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 recently. 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.

GRECO,  the Council of Europe's anti-corruption organisation, recommended:

• - that the powers of the President of the National Judicial Office to intervene in the process of appointing and promoting candidates for judicial positions be reviewed in favour of a procedure where the National Judicial Council is given a stronger role;
• - that the power of the President of the National Judicial Office to re-assign ordinary judges without their consent be reduced to a minimum in time and only for precise and particular reasons of a temporary character;
• - GRECO recommended that the immunity of ordinary judges be limited to activities relating to their participation in the administration of justice (”functional immunity”).

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 beenfurther weakened within the ordinary courts system. The National Judicial Councilfaces increasing difficulties in counter-balancing the powers of the President of theNational Office for the Judiciary.This gives rise to concerns regarding judicialindependence.