The perversion of justice
By Grand Ph.D János Palotás
Honorary Associate Professor
International Expert in Law, Finance, Economics
Exclusive influence over legislation also means having exclusive power. This fact is proof beyond any doubt of the presence of a dictatorship, which at the same time rules out the independence of the courts, as they are bound by law. I wonder whether judges and courts still strive to deliver judgments in the service of justice.
Today, I think with even greater respect than before of those officials, police officers, investigators, prosecutors and judges who are not the subject of the critical passages that can rightfully be gleaned from my writing. Those who are not the subject of the critical passages that can rightfully be gleaned from my writing. They are the ones who still carry out their daily work as a vocation for the fulfilment of justice. There are many who have not given up, while realizing that we are not talking about exceptional cases either in legislative omissions or in enforcement. They also see that procedures and judgments incompatible with the law are not exceptional, but have become systemic in Hungary.
My legal contributions could even be considered desperate appeals for social justice and the recognition that dictatorship cannot be the future of Hungary.
It is impossible to detail in a few newspaper pages the legal nonsense that has become systemic in Hungary. This is why I have decided to highlight a few typical areas in my now eight articles, which are expanding month by month and complementing each other. I hope to provide a more detailed explanation in a consolidated book format in the fall.
My aim is to provide an insight into the legislative activity of the Government and the Parliament in the service of dictatorship, the procedural and adjudicative practice of the Constitutional Court, the Curia, the Budapest Metropolitan Court of Appeal, the Budapest Metropolitan and Budapest Regional Courts, and some of the lower courts within their jurisdiction (such as the Monor District Court). All of this is complemented by specific cases that can help hundreds of thousands of citizens recognize their situation. Algorithms that have become standard for individual procedures (a set of rules built on each other) do not depend on the specific types of cases. A large number of confusions and distortions in the changing understanding of decision-makers can be identified in the proceedings of public authorities, government agencies, police, prosecutors and courts. This is why my examples can even be considered public affairs, as they affect the lives of all of us.
The end of democratic legislation, and thus the collapse of justice-centered enforcement of the law, was marked crucially by Viktor Orbán’s rise to power in Hungary in 2010. This negative process has been only accelerated by the adoption of the Fundamental Law in 2011. In my previous article of March 26, I pointed out that in 2013, with the Fourth Amendment to the Fundamental Law, the series of pre-existing legal abuses of Orbán’s rule reached a new and all-time high. This was when the latest restriction on the powers of the Constitutional Court was introduced into the Hungarian Fundamental Law (Article 12(5)).
According to this provision of the Fundamental Law, if the (Orbán) Parliament intends to introduce any nonsense into the Fundamental Law by means of legislation, the Constitutional Court (CC) is not allowed to examine the conformity of the amendment with the provisions of the Fundamental Law, while in case of any objection regarding constitutionality, only the CC would be entitled to give an opinion on the matter. Thus, the CC cannot have any control over Orbán’s legislation, while all other branches of power have solely executive power, so the implementation of the law adopted by the Parliament in Hungary is an unquestionable obligation for them, i.e. Orbán’s power had then became exclusive!
Orbán and his puppet government, including the parliamentary voting machine that provides the backdrop for his power game, did not sit idle after that. Thus, we are now dealing with the tenth amendment that could not even be included in the Fundamental Law imposed on us in 2011, without any social legitimacy or consensus, assuming that anyone in Hungary had the right to examine it.
At the same time, Hungary is a Member State of the European Union, and every Hungarian citizen is also an EU citizen, so the EU’s bodies would have an obligation to protect the rights of their nearly ten million citizens. So not all is hopeless as long as Orbán does not withdraw Hungary from the EU. I should note that Orbán has all the necessary powers to do this today! For the EU to take effective action against the exclusive power of Orbán, it is not a necessary prerequisite that the Hungarian opposition, which has the right to representation through elections, initiate effective EU action according to the legal procedures of the European Union. However, the fact is that the opposition does not do so, and indeed explicitly accepts in its statements, for example, the 2022 election result, which has the effect of restraining any action by the EU bodies.
As to why the opposition does not initiate the procedures described in detail in my articles, I cannot answer that question, unfortunately!
The systemic changes that the last 12 years have brought about in almost all areas of the executive branch, from the highest levels to the daily life of the district courts, could be illustrated with enough examples to fill volumes of books.
A good recent example is that, during the emergency caused by the coronavirus epidemic, Viktor Orbán sent political messages before the election to the e-mail addresses provided as part of the mandatory registration for vaccination, as part of the government’s information campaign on the epidemic. The National Election Office found this to be in order and the Data Protection Commissioner did not think he should deal with it. However, the Curia, as the highest body for administering the law, found this to be unlawful. The CC, however, annulled the decision of the Curia despite the fact that it constantly rejects citizens appealing against decisions of judicial forums, arguing that the CC is not a fourth judicial forum and will only overturn a court’s decision if it is based on applicable law that is incompatible with the Fundamental Law, i.e. if it is to be repealed, and that the CC refuses to review the decision if the Curia may have misapplied applicable law.
Hundreds of thousands of people are still affected by the decades of fraud perpetrated by three separate brokerage firms that went bankrupt in 2015, under the auspices of the Hungarian National Bank (HNB). The series of bankruptcies in 2015 was the largest ever in the Hungarian investment market, yet it triggered some interesting reactions from the government. The State Audit Office (SAO) of Hungary (for reasons that are verifiably untrue) has abruptly stopped its annual audit of the HNB’s financial supervisory activities in the state-controlled investment market. The SAO is equally unconcerned about the illegal and corrupt investments of public entities, which have distorted the investment market with nearly HUF 300 billion of public money and prevented independent market supervision. The HNB has also taken the view that, even though a monitored market will always involve three players (investor, service provider and the state), it does not need to investigate its own liability. Finally, after forming a joinder, 1,652 injured parties applied to the courts to investigate the liability of public bodies in accordance with Hungarian and EU law. The Court of Justice of the European Union (CJEU) has ruled, in a precedent judgment which is also binding on Hungarian courts, that such an investigation cannot be rejected by a national court without an examination of the merits. For almost four years it seemed that the competent council of the Budapest Metropolitan Court (Dr. András Tamás Kovács, Judge), accepting this, would proceed with the investigation, and for years held a series of hearings in a very fair atmosphere. Then, after the summer recess in 2020, it took an unexpected turn and closed the case before the start of an investigation on the merits, rejecting the plaintiffs’ right to bring the action. According to the judgment, some of the parties had received compensation and were therefore no longer entitled to find out who was responsible for their damages. Another group of litigants was rejected, arguing that they could not have brought “only an action for a declaration of liability”. Then, when one of the plaintiffs tried to convert the proceedings still pending in the case into an action based on the judgment, which was otherwise precluded by its statutory terms, the Court ruled that the damages were barred by the statute of limitations. However, this is conceptually impossible because the activities of the defendant public entities were not investigated by the court of first instance. And what has not yet been established cannot be barred by the statute of limitations. The council of the Budapest Metropolitan Court of Appeal, headed by Dr. Katalin Hőbl, not only upheld the absurd judgment of the first instance, but also imposed a heavy “penalty” on the plaintiffs by ordering the joint litigants without even being petitioned to pay tens of millions instead of half of the legal costs determined at first instance (indeed by almost thirty times that amount) and excluding the right of appeal. This case is still pending before the Curia for a final ruling at national level. At present, the Curia is still accustomed to ruling in accordance with the law, the judge’s oath and justice, but even here the government will have the option of referring the matter to the CC.
Finally, an example of the impact on small-town judiciaries of Orbán’s decimation of Hungarian judges through “forced retirement” after 2010, subsequently ruled illegal by the ECtHR and the EU. Subsequently, the justice system has experienced that the law can not only be used, but also abused, and that the authorities do not have to reckon with any consequences, they can regard despotism as their virtual legal power. Since 2018, the Monor District Court, together with the local Guardianship Office, the police, the prosecutor’s office and the government office of the district, has been investigating the parental supervision of three minor children. In this case, one parent imprudently asked the authorities for help because of the other parent’s violent actions, which also resulted in injuries, and the influence of the other parent on their 5-7 year old children for years, through false and degrading allegations against the parent in question, which have been proven by a forensic expert since March 2020.
However, the local influence of the parent from the local intellectual community, whose claims have been refuted by a forensic expert appointed by the authorities, is now enough in Hungary to either not reach a decision or to reach one in favor of the parent who is engaging in ongoing harmful behavior. More than two years after the forensic expert reached their findings, court decisions documented the unlawful parental behavior, the Monor Police Department has not yet reached the conclusion of its investigation and is not affected by the fact that three minor children may be at risk. In addition to the disinterest and partiality of the authorities, the Monor District Court’s judgments of first instance in several proceedings, none of which were delivered in a manner consistent with the truth or the law, should also be included.In the context of the proceedings still pending today, it is perhaps encouraging to note that in all of the proceedings already closed, the final second instance judgment of the Budapest Regional Court has restored justice in the cases of judicial excesses that were presumably not free of small town conspiracies. In Monor, no decision on custody of the children could be made after four years, and joint custody, which is a threat to the children’s development, is still in force today, while the age of the young children at risk has doubled. Unfortunately, it is also true that disregarding the destructive impact of time, especially in the case of children, is a bias not unique to the Monor District Court.
I cannot reconcile myself to the fact that not even the age of our defenseless young children is an incentive for our authorities to consider having an immediate duty to take a decision!