Presidential retaliation against critical opinions at the Kúria

In quick succession, András Varga Zs., the President of the Kúria, Hungary’s apex court, has retaliated against two employees to silence professional criticism of his activities. By suppressing the expression of opinions, the Kúria President intends to deprive his employees of a fundamental safeguard of the functioning of the judiciary: the right to report to the public breaches of their own independence. Both of them were sanctioned by their employer despite their impeccable professional record. The Kúria President suspended Judge András Kovács from his position of Head of Panel and dismissed a senior scientific advisor with immediate effect.

Head of Panel suspended for professional criticism

András Kovács, the Head of one of the Kúria’s judicial panels, became the subject of a concerted attack by his superiors after his panel, which had also adjudicated political cases sensitive to the government, had been dissolved under the pretext of amending the case allocation scheme. He rightly felt that, as a judge, he had the duty to draw attention to the deficiencies he was witnessing. He wished to publish his professional views in a study criticising the adoption and application of the Kúria’s case allocation scheme.

The Kúria President first banned the publication of the study, and then launched several parallel proceedings against Judge Kovács. In November 2024, one of these proceedings resulted in his suspension from his position of Head of Panel. These measures have the barely disguised aim of preventing András Kovács from exercising his freedom of expression as a judge. Indeed, everything that is being held against him in the various proceedings is precisely the essence of the freedom of expression exercised in the interest of judicial independence: the possibility of factual and professional public criticism regarding issues affecting judicial independence and the parties’ right to a  lawful judge and a fair trial. András Kovács has now challenged his employer’s actions against him in court, with the help of the Hungarian Helsinki Committee. The sanctioning of criticism within the protected sphere of judicial expression is contrary to fundamental rights standards.

Dismissed because of her opinion

At about the same time and in eerily similar circumstances, a senior scientific advisor was dismissed from the Kúria in a breach of fundamental rights. The person concerned, who for many years had provided professional advice to the judges of the Kúria, was dismissed overnight for an opinion attributed to her, regardless of her outstanding and internationally recognised expertise. The opinion was disseminated in a closed circle as part of a manuscript and, since it has not been made public, all that is known is that it contains passages about the ‘occupation’ of the Kúria and the ‘weakening’ of the National Judicial Council. However, these statements were not even drafted by the senior advisor who was retaliated against, but by her co-author.

No employer is allowed to fire an employee with the aim of suppressing the expression of their opinion, not even the President of the Kúria. The infringement is exacerbated by the fact that it is the Kúria President who decided to dismiss the employee who had been critical of him, and whose professional duty is to provide legal opinions that are based on purely professional grounds, in an impartial and independent manner. Her immediate dismissal in this way is also a form of pressure on other independent advisors working at the Kúria. Not incidentally, it also breaches academic freedom, since the scientific advisor had been retaliated against at work contributing to the writing of a study, i.e. for her scientific research activities.

What undermines public trust?

In both cases, the Kúria President argued that the critical opinions were damaging to the Kúria’s authority, that they were capable of questioning the legitimacy of the Kúria’s functioning and to undermine public confidence in the Kúria. In fact, however, it is not public criticism of unlawful functioning that undermines public confidence, but the unlawful functioning itself, against which every judge is obliged to speak out in order to preserve their own independence as well as that of the entire judiciary.

Should the position of the Kúria President be accepted, it would mean that judges would be obliged to remain silent even in the case of manifestly unlawful judicial administrative practices, and the entire organisation would be completely defenceless against internal pressure, which would necessarily come from within the Kúria. Yet, how can a judge be expected to draw attention to a breach of the law or of their independence if they have to expect retaliation for “undermining public confidence in the Kúria’s lawful functioning”? No laws can be relied on to preclude the possibility of public criticism of a potentially unlawful practice, as this would be contrary to the prohibition of abuse of rights.

Baka case 2.0

In its Baka judgment, which has been pending execution for eight years, the Strasbourg-based European Court of Human Rights (ECtHR) ruled that the right of judges to freedom of expression must be given a high level of protection because it is a crucial safeguard in matters affecting judicial independence. According to the Strasbourg court, the removal of András Baka from his position as President of the Supreme Court (the Kúria’s predecessor) was not only unlawful in itself, but also had the unlawful purpose of silencing him and stifling his freedom of expression. The ECtHR also highlighted the “chilling effect” that the fear of sanctions can have on judges who wish to participate in the public debate on issues affecting the application of the law and the judiciary by expressing their opinions, and possibly criticising them. The Baka judgment has also stated that this chilling effect also harms society as a whole, and must be taken into account when a judge is penalised for expressing an opinion on independence.

The European Court of Human Rights has since also ruled, in the context of attacks on Polish judges, that in order to protect the rule of law, democracy and judicial independence, judges have not only a right but also a duty to speak out. While human rights standards in Europe have been further strengthened since the Baka case, Hungary, with the active involvement of the Kúria President, is seeking to set an example with new cases targeting those who are speaking up against actions undermining the independence of the judiciary. Regardless of the outcome, these cases could be used as a tool to exert a chilling effect on those judges and judicial employees who wish to fulfil their duty to speak out against internal pressure in the public interest.