How qualified will the new judges in the Hungarian Constitutional Court be?: The case of Mária Szívós

This post is going to be relatively short because we know very little about Mária Szívós except that she finished law school at the age of 29 in Szeged. For a while she worked as a lawyer but later became a judge, not the kind who decides cases but who during the investigative phase of the court proceedings decides on such questions as pre-trial detention, granting bail, issuing search warrants, and such. For the most part absolutely routine procedures. Such a position doesn't strike me as the pinnacle of the profession.

Mária Szívós became better known in 2006 when she changed the earlier decision of the lower court on the pre-trial detention of those who took an active part in the disturbances in September and October. I suspect that it was this action that called the current government's attention to her. In fact, she was called before the sub-committee investigating the events of 2006 where Gergely Gulyás, chairman of the subcommittee, praised her profusely as "one of the few judges who played an unusually positive role in the decision concerning pre-trial detention of the accused."

One peculiarity of the position of judge involved with the investigative phase of the proceedings is that his opinion concerning the cases cannot be made public. So we don't even know Mária Szívós's reasons for her decisions. However, since she is a judge at the Fővárosi Bíróság (Court of the Capital), we know how often she decides on pre-trial detention. According to the latest figures currently there are 715 people who are spending time in jail in the pre-trial phase. Out of these 248 have been incarcerated for more than six months. These numbers are very high, especially if we compare them to the number of house arrests and other milder forms of limits on the accused's movements. In the last few years the European Court of Human Rights found Hungary guilty twelve times of keeping people in pre-trial detention without real reasons. Behind these house arrests and pre-trial detentions one can find Mária Szívós's decisions. So, she seems to be very severe and is ready to rule on pre-trial detention with ease, but in the case of the hooligans setting cars on fire and attacking policemen she was exceptionally lenient. I think that tells quite a bit about her political views.

Unfortunately, we know nothing about her judicial philosophy. The authors of the study of the current nominees for the Constitutional Court couldn't find anything she put on paper. The Fővárosi Bíróság has a publication called "Intellectual Workshop" (Szellemi Műhely) where members of the Court can publish. Mária Szívós does not appear in the list of authors. I might be unfair, but if in the last nine years she has been dealing with these, to my mind, mundane court cases I doubt that she spends time studying constitutional law or thinking about judicial philosophy.

Since she was born in 1949 she would have had to retire from her job this year. This nomination certainly came at the right time for her.

As I was thinking about learning some constitutional law before writing an opinion I remembered a classic utterance from the former chief justice of the Supreme Court, Zoltán Lomnici. When someone criticized a judge who made a decision that was in blatant contradiction of the constitution, Lomnici exclaimed: "You don't expect judges to carry the constitution in their pockets and study it all the time." Tells a lot about Hungarian judges, doesn't it?

Well, what kinds of questions should (or rather by now should have) the legislators asked her? First and foremost, how was it possible that the Court in Strasbourg found Hungary in violation of certain sections of the Convention on Human Rights so often? Can it be that the unusually high number of cases requiring pre-trial detention in Budapest is based on a wrong interpretation of the law? Another appropriate question would be whether the law passed by parliament that annulled certain crimes connected to the disturbances in the fall of 2006 didn't violate the separation of powers outlined in the Constitution. Doesn't this law violate the independence of the judges?

From the early reports on the hearings it is not clear what the legislators asked Mária Szívós, but she volunteered her own surprise that she was nominated. She tried to figure out what made her a desirable candidate in the eyes of whoever nominated the future members of the Constitutional Court. She came to two conclusions. First, that in the future a lot of requests will reach the Court to rule in criminal cases, and after all she belonged to the criminal department of the Court. Second, because she teaches at the Catholic University. Her position at the university is "mestertanár" (master teacher). Here someone might help me out because I'm not familiar with this position: there are professors (egyetemi tanárok), associate professors (docensek), assistant professors (adjunktusok), teaching assistants (tanársegédek), but I have never heard of "master teachers." Since they come at the end of the departmental lists I assume that it is a fairly lowly position. But I'm only guessing.

It is really frightening who can become a member of the newly enlarged Hungarian Constitutional Court.

 

Comments

[Kim Scheppele]

Those who are interested in the qualifications of constitutional judges may also be interested in the hard-hitting report that was released yesterday by the Venice Commission evaluating the new constitution.

A preview: when criticizing the sheer number of "cardinal laws" requiring a two-thirds vote of the parliament, the Venice Commission said that "the principle of democracy itself is at risk."

To see the Venice Commission Report, an opinion of Hungarian constitutional experts that was sent to the Venice Commission as they were evaluating the constitution, and the official English-language version of the constitution itself, go to http://lapa.princeton.edu/eventdetail.php?ID=473 .

[Odin's lost eye]

Professor you write about Mária Szívós * “In the last few years the European Court of Human Rights found Hungary guilty twelve times of keeping people in pre-trial detention without real reasons.” *

Presumably these 12 are only those who have churned through the whole gamut of the Hungarian appeals procedure which could take many years. There must be many more (little people) about whom the European Court of Human Rights knows nothing.

Hungary, its administration of justice and perhaps its judges seem to be totally unaware of European Charter of Human Rights Article 6 section 2 (the presumption of innocence until proven guilty). I presume this is a hangover from the old communist idea “that an accusation is proof of guilt”. The problem in some Judges minds is that pre-trial detention is punishment for being accused. Sometimes I suspect that some of these detentions may have a commercial, business or political basis. That is to lock someone up so that someone else can gain a financial or political advantage.

What I find difficult to understand is that there is a separate judicial branch which deals with the problem of pre-trial detention. In the UK this question is dealt with by the Justices of the Peace (J.Ps are Citizens of Credit and Renown – not lawyers) who hear the initial arraignment and subsequent procedures before committal to a trial before a Judge and Jury, or in cases where the tariff is less than 6 months in jail they hear the case themselves.

I do hope that The Mighty one makes then Judges of the constitutional court wear some sort of daft outfit probably with a long pointy hat with small draws in it.

I think the judges of the Europe Court are going to have ‘fun’ with this little lot!

[Upper land voice]

Hungarian diplomacy get upset by Slovenian PM Borut Pahor, who (off the record) said, that as soon as Hungary terminates its EU presidency it will the political funeral for the country and international isolation starts.

[Ron]

Upper land voice: Fidesz does not care about political isolation within the EU. They have China. Off-topic. You may want to see the following link, which details the current situation in Esztergom. It is in Dutch, but google translation will solve that problem.

http://www.scribblesfromhungary.com/2011/06/esztergom-een-hongaars-koningsdrama.html

[Upper land voice]

thanx Ron, I heard about this case here and there, but this is very good and comprehensive account. I however tend to disagree with the argument that they may ignore the EU context. Last but not least, Hungary is not Austria and depends on EU cohesion transfers, secondly, for the EU it will be test, if they ignore Hungary, what may happen soon in other CEE countries? There are similar tendencies all around. That’s why I believe, there will be strong reaction as soon as H presidency is over and since hungary depends on the EU pretty much, they will have to act if they do not want to really be in the position of ostracised and marginalised country.

[Eva S. Balogh]

Upper Land Voice: "Hungarian diplomacy get upset by Slovenian PM Borut Pahor, who (off the record) said, that as soon as Hungary terminates its EU presidency it will the political funeral for the country and international isolation starts."

There are so many topics and this is also a very important one. Then there is what Kim Scheppele mentions about the Venice Commission. József Szájer (EU MP and the one who wrote the constitution on his laptop) in the usual Fidesz diplomatic manner told that those judges don't know what they are talking about and that Hungary will not pay any attention to the report. I don't know where all this will lead.

[Upper land voice]

I think what we see now in Hungary is a kind of laboratory experiment of wide interest for the future of Europe. Hungary in the 1st in the CEE where single party got constitutional majority. The very same things done in the other countries in secret (deals about TV control, constitutional court pressures, economy etc are usually complicated deals among smaller political parties and one is afraid of each other to prevail) are done here practically openly.

There is popular saying, that the democracy in the US (apply to the west Europe as well) is like a choice between coca cola and pepsi. If we elaborate on this, than democracy in Russia is like the choice between coke in a can or in a plastic bottle. Hungary is dangerously leaning towards the Russian model nowadays. If the EU let this go like this, it may soon face similar tendencies in other EU countries (last but not least, because of economic crisis and austerity measures will call for a “strong hand”). Hungary is in a very weak economic position to dictate conditions, so I think that most likely scenario is international pressure and at least formal acceptance of more or less deeper cosmetic surgeries. This however do not solve problem of transformation of democracy and politics into some kind of private enterprise, as seen in the case of Esztergom. Funny things is, that we have to more and more worry to have at least pepsi/coke choise.

[Eva S. Balogh]

Ron: "You may want to see the following link, which details the current situation in Esztergom."

The latest development: Lajos Kósa (Fidesz deputy chairman and mayor of Debrecen) proposed that a mayor who during his tenure is forced to declare bankruptcy should be barred from holding public office for twelve years. Apparently it is tailor-made for Tétényi although Medgyes drove the city to financial brink.

[Odin's lost eye]

Professor you write (and I have edited to save the reader’s time) ** “József Szájer (EU MP) in the usual Fidesz diplomatic manner told that those judges don't know what they are talking about and that Hungary will not pay any attention to the report” **. These are hectoring and derisory terms typical of a Fidesz Poitico.

The Venice Commission is an advisory body of the Council of European constitutions. The Council of Europe is also maintains the European Convention of Human Rights which Hungary had to adopt before it could apply to become a candidate to join the EU. It also has the European Court of Human Rights
.
If Hungary fails to accept and institute the recommendations in full of the Venice Commission in full it will have the European Court of Human Rights on its tail. That will be nasty for Hungary.

Within the EU, the Council of Ministers will no doubt receive the report of the Venice Commission with interest. Then the fur will fly.
I look forward to reading the Venice Commission’s report.

Mr Upper Land Voice. The Hungarian voters were swindled into voting for a party who wish to rule forever. They are now in the process of setting up an Autocracy. These ‘coves’ are I am afraid Neo-Nazi (that is ‘National Socialists’ aka Fascists) and the world will judge them by their actions. Their bluster and bullyragging tactics are symptomatic of their ‘Illusions of Grandure’. Western Europe has had its belly full of such toads and the destruction they bring. They will be suppressed!

[Some1]

Certainly things speed up in Hungary in this last week. If I can add the situation in Romania and that would even not complete the picture. It so sad that some tags beat up a Hungarian catholic priest in Alba Iulia, Transylvania when he tried to film them as they were throwing rocks at the church. Well, this is very sad in deed, and I can sense that is racially motivated (just like the speech by a Jobbik member of the Hungarian parliament who made a speech about a Hungarian sports team being a "foreign body" with no opposing opinion). THese kind of things should stop, but Hungary uses the first incident to show their support for Transylvanian Hungarians, while keeping its mouth shut about the parliamentary speech against Jewish Hungarians. So, what is this had to do wit the original blog entry? It has to do wit the double standards that are entwined in Hungarin politics regarding taxes, accountability, "communist past", retirement, privatizations and so forth. Democracy!

[INNEN-LE-TOVÁBB?]

the crooked fide ss - jo ss ik FUHRERS are stealing hungary, earn an early good profit, while dumbing down the stupid voters, who cheer them.

who is rising up next to steer the little but sweet Hungary back to enlightened freedom?

the hungarians are moving in small circles, one day oppressed prisoners, another day criminal self-oppressors. when can we be free citizenss for a suspended time?

unfortunately, most Hungarians live in the prison of their language, and can not read anything in German or English.

The Hungarians living in Romania can be the most advanced culturally, many are fluent in english, german, italian.... a great advantage.

[Paul]

re Odin's point about pre-trial detention, etc.

There was a report on R4 this morning about the UK government thinking of tightening up our extradition procedures beause of the way people were sometimes treated in the other country once extradited.

Unfortunately, the example they gave was Hungary. A UK business wanted by Hungary on (what sounded like) minor and fairly unfounded charges, was free on unconditional bail here. But after he was (voluntarily) extradited, he was taken off the plane in handcuffs and then spent several months in prison, locked up 23 hours a day.

I'm fairly used to feeling ashamed of being British when I hear news items, but it was a new feeling to cringe in shame at what listeners were thinking of my adopted country.

SB may think we are all Hungary-haters, but really what we hate is what's being done to a country we have grown to love - by people like him.

[Odin's lost eye]

INNEN-LE-TOVÁBB? You write ** “unfortunately, most Hungarians live in the prison of their language, and cannot read anything in German or English” **

How right you are! How right! This point has been made by luminaries and authors amongst them Sandor Marai and Paul Lendvai. Their language imprisons the Hungarian in a straight jacket of their own making. It also gives him a tendency to argue from the point of total ignorance or from a woeful miss-understanding of the idea. The Dutch and Flemings (whose languages are very much a minority language) tend learn either German or more commonly English (to which these two languages are more closely related) and for simple historic reason that ‘Tommy’ was welcome but ‘Fritz’ was not.

The things going on North Africa and much of the Arab world are happening because they all speak the same basic language, so ideas of freedom and democracy can easily spread.

In my (limited experience) those young Hungarians who are learning English very often seek me out in the evenings (in the Koscma – Pub) to talk, but they will not if their elders or the ‘Knuckle Heads’-those who are over muscled, over weight and under brained- are about.

There is a bookshop in the local town which has a few shelves of Non-Hungarian books on sale. The looks of anger on the faces of some customers when any one (me included) goes to browse or choose a book from those shelves frightens most people away. In Szeged, a few years ago, I tried to buy an English title. The girl at the checkout looked at the title and rushed off and brought a Hungarian translation of the book. I just touched my hat and walked out making a gesture of defiance (the two fingerd one), but I omitted the usual raspberry (a Bronx cheer) followed by ‘B***** the lot ‘O’ yer’.

Once on this blog there was a discussion about the evils (or otherwise) of segregated religious/sectarian based education. This also seems have similar stultifying effects.

Ok I speak a sort of English (and I know several dialects), I can swear in French, curse in German and positively blaspheme in Arabic. I used to know a miniscule amount Cantonese (but nothing you would dare use outside a dockyard).

But as a people they are not daft, see what happens when one (like our Hostess) breaks free of the language bonds.

[Eva S. Balogh]

Odin: "Presumably these 12 are only those who have churned through the whole gamut of the Hungarian appeals procedure which could take many years. There must be many more (little people) about whom the European Court of Human Rights knows nothing."

Correct. Very few cases end up in Strasbourg. Hunvald and Gál (I wrote about them earlier) were kept for almost two years in pre-trial detention. At last one judge had the good sense to release them. The prosecutor appealed and Hunvald and Gál are back in jail. I wouldn't be surprised if the appellate judge was no other than Mária Szívós.

[Paul]

Thanks for the Esztergom link, Ron. Interesting, if frustrating and depressing, reading.

It's hard to believe that even Fidesz can allow this situation to continue and react in the way it does, but by now we all know that OV and Fidesz just do what they like, no matter how unjust, illogical or just plain bonkers it appears to the rest of us.

The biggest danger to Hungary is not that OV is populist or right-wing, or even that he is creating a dictatorship, it is that he is governing badly. Fidesz have only been in charge for just over a year and the new constitution isn't even law yet, but already Hungary is seen as a basket case.

God alone knows what another three (or 7) years will produce. Some commentators are still optimistic that "the people" will prevent OV from doing his worst, or that Fidesz simply won't do anything really mad. But I see no support for this view in reality.

OV and Fidesz will continue to do whatever they want, nothing will stop them - the EU, democracy (what there is left of it), the opposition, the people, their own conscience, nothing.

I see only two futures for Hungary in the next 5 to 10 years: either further descent into inept government, bizarre shits of policy and economic collapse, or, quite simply, blood on the streets.

Although, thinking about it, I can't see any reason why we won't get both. Greece is going to look like a picnic by comparison.

[Ron]

Paul:Thanks for the Esztergom link, Ron. Interesting, if frustrating and depressing, reading.

I agree with you, same here, until I was reading that the opposition started to work together (even ultra right) and people start to work to keep things moving. That is very positive.

If this is kept on going, that movement will be even stronger than facebook or the student events. It will be the middle class of real Hungarians.

The questions are will it happen and when.

[Paul]

Sorry, Ron, but the real question is will it be able to achieve anything?

And I'm afraid the answer is 'no'. OV will just ignore them, exactly as he is ignoring reality in Esztergom (and elsewhere).

We have to face the fact that OV has all the power. The opposition can do nothing except take to the streets. This is Libya, not Egypt.

[Johnny Boy]

So you admit you know very little about Szívós Mária. You repeatedly admit you haven't really heard of her except for some of her role during politically disturbed times. You are unaware of her title ("mestertanár"), you are completely at a loss.

Yet this does not keep you from pretending to be "frightened" about what kind of people can become the members of the constitutional court.

Isn't that strange?
(Knowing you, it's not: you are not interested in real factors, you are interested in spreading your discrediting propaganda, based entirely on political bias.)

To help you out, "mestertanár" is completely out of the rankings of teachers at a university. This title is awarded to those who make outstanding efforts to help young talents along their way in their profession. Like organizing special training programs for the most talented, and so on.
A "mestertanár" can be a professor, an assistant professor, or any teacher of any rank.

[Eva S. Balogh]

Odin: "But as a people they are not daft, see what happens when one (like our Hostess) breaks free of the language bonds."

Don't overestimate my accomplishments. I simply had no choice. In addition, I was relatively young when learning a language is easier. And, perhaps most important, living in English-language environment makes learning the language and speaking it idiomatically much easier than learning it from books.

[GW]

Johnny Boy, it's not the fact the the contributors here know nothing about Ms Szivos, it's the fact that NO ONE knows anything about her jurisprudence, at the very least some baseline for judging her record as a judge, her knowledge of the law, and her judicial philosophy. Instead she's a stealth candidate, essentially brought forward by the government on a "trust us" basis. If you are unable to recognize the fact that no democracy can be governed on a "trust us" basis, then you have simply failed to learn any lesson from Hungarian history between the end of WWI and 1989.