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The power threatens directly, it is not certain that the National Judicial Council will exercise its new powers

Although the Orbán government has, in principle, fulfilled the EU expectations regarding judicial reform, the expanded jurisdiction body to be elected on January 8th could remain under the radar.
"The outgoing National Judicial Council (NJC), an institution of power-sharing capable of consistently enforcing the rule of law, must be highly valued," said Zoltán Fleck, a sociologist of law, in a statement to Népszava, having been asked to evaluate the NJC's work over the past six years.

According to the professor at ELTE University, the NJC took on a significant responsibility and risk by upholding the principles of judicial independence and the rule of law, as opposed to the Constitutional Court, the ombudsman, and other nominally independent public legal institutions. The council had notable conflicts with Tünde Handó, former president of the National Office for the Judiciary (NOJ), and continued its critical activities even under her successor, György Senyei. Fleck, responding to our question about whether the NJC's commitment to the rule of law is tied to its members being elected from within the judiciary itself, said it is clearly because they are not selected by the parliamentary voting machinery. He recalled a moment of grace six years ago when the judicial community elected the NJC at a time when many judges felt the Handó-style hysterical, government-friendly administration and the replacement of court leaders were causing damage. This moment of grace may no longer exist, he added, as the judiciary faces tremendous pressure ahead of the NJC elections on January 8.

As we reported, the assembly to elect the members of the NJC was convened for January 8 by István Judi, president of the Győr Tribunal and the oldest of the delegates. The current NJC's six-year mandate expires on January 30; new members will undoubtedly join because the incoming members have previously indicated they will not take the opportunity to be re-elected, despite the new law allowing this under EU pressure. The venue is the Hungarian Academy of Justice, where the delegates (electors) selected by about 3,000 Hungarian judges in September-October will decide on the new members. The electors at the assembly will elect the 14 NJC members – including 1 from the regional court of appeal, 6 from the tribunals, and 7 from the district courts – by secret ballot and majority vote (over 50%). At the same time, 14 alternate members will also be elected in the same procedure – the 15th member, the president of the Kúria (András Zs. Varga), is delegated to the body by law. A four-member nominating committee consisting of the oldest presidents will propose candidates for NJC members (and alternates), but any elector who receives the support of at least one-third of the present delegates can be nominated. The NJC members' mandate lasts for six years from the first session, which must be held within 15 days of their election – allowing the newly constituted council to convene as early as January.

Fleck believes that after the 2022 parliamentary elections, the democratically committed segment of Hungarian society became deeply discouraged, which also rings true for the judicial community. The power that directly threatens does no one any favors in resisting, and existential fears impact the judicial community, especially during such an election. It is also uncertain whether those who volunteered to run would continue the critical activities of the current NJC, as judges have seen over the past six years the sacrifices involved, and members did not always feel the full support of the judiciary behind them.

Those who become NJC members take on personal risks, as members return to judging after their mandate expires. The past few years have seen the replacement of tribunal presidents and a new president at the Kúria, meaning that every factor that is important for a judge's advancement has deteriorated.

Despite the EU pressure to expand the council's powers and make it more independent both organizationally and financially, the legal status of NJC members has not become more secure. Fleck is skeptical that the Orbán regime could "let go" of judicial power, as seen when the European Commission (EC) tries to maintain dialogue and good relations with the Hungarian government, with little success. Thus, a new NJC may be formed that prefers not to engage in conflict with the government and to stay under the radar instead.

While the NJC's powers can be increased, with so many other counterbalancing factors at play, it may be a dead end. Fleck's professional opinion is that the model built on the distinction between the elected body (NJC) and the office leader (NOJ president) selected by the parliamentary majority is fundamentally flawed; NJC members are in every way dependent on the NOJ president, who holds a significantly larger scope of authority, and the judicial leaders appointed by them. Plus, a judicial power can only operate effectively and autonomously when the rule-of-law environment is supportive, with the presence of an ombudsman, constitutional adjudication, and a supreme court. It's no surprise to him that the government could change the powers at the EC's request because there are so many additional ways to circumvent them. He referred to the undermining of judicial independence by the president of the Kúria within the NJC, and the minutes also showed that he considered the entire judiciary to be transformed. To our question about the new NJC members potentially being loyal to Varga Zs., Fleck did not speculate but noted the efficient restructuring of the Kúria. He described the anomaly and one of the pitfalls of the Kúria president also possibly serving as the NJC president as the law doesn't prohibit it.

It could also be telling how many of the new NJC members will be subject to the appointment authority of the NOJ president, who they will have to oversee. Our sources say there are at least five such individuals among the delegates: Katalin Ocskó, deputy general president of the Budapest Tribunal; Árpád Bagdi of Gyula; Szilvia Tuzáné Papp of Miskolc; Zsolt Ödön Csorba of Tatabánya; and Edit Szent-Gály of Veszprém. The outgoing NJC recommended eliminating this "incompatibility," but this did not make it into the law. Free Europe reported in December that András Zs. wrote a letter to the Hungarian Association of Judges, indicating that he would find it beneficial if judicial leaders under the appointment authority of the NOJ president were included among the new NJC members.

Not Everyone Is Pleased

The European Commission deemed Hungary's implementation of judicial reforms sufficient in December and released the €10.2 billion of funds previously frozen due to rule-of-law concerns. However, not everyone is satisfied with the four-part reform.

1. The law enacted last spring, effective June 1, greatly expanded the NJC's powers: the council supervising the NOJ and the president of the Kúria became an independent legal entity with its own budget and a right of consent (veto) in the selection of candidates for the presidents of the NOJ and the Kúria. However, the leaders of the four largest factions of the European Parliament advised the EC in a joint letter in December to wait until January 10, after the election of the new NJC, to evaluate the reform because: "It is not possible to judge whether the National Judicial Council will be independent not only on paper but also in its composition."

2. From June 1, 2023, state institutions (public offices) will no longer be able to turn to the Constitutional Court with a constitutional complaint – not even in referenda cases. The possibility for members of the Constitutional Court to transfer to the Kúria as regular judges, without competition, after their mandate has expired or been interrupted has ended (Varga Zs. joined the Kúria this way).

3. Obstacles that prevented Hungarian judges from applying to the Court of Justice of the European Union (CJEU) for preliminary rulings have also been removed. However, due to a current precedent set by the Kúria in the case of Judge Csaba Vasvári, judges are still likely to fear approaching the CJEU.

4. A ministerial decree in December regulated the Kúria's case distribution system, making it completely automatic. The Kúria's sharp statement in response suggested that Varga Zs. was affected by the change: "Case distribution at the Kúria is, in any case, insignificant, as every Kúria judge and council acts with equal expertise and in accordance with the law."

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