Targeting Disciplinary Courts

Hungary has faced significant challenges to judicial independence in recent years, becoming an attractive model for similar actions in other states. For over a decade, Hungarian judges have had to endure various violations, including forced early retirement, irregular judicial appointments, restrictions on freedom of expression, workplace discrimination, media smear campaigns and the lowest judicial salaries in the European Union. Disciplinary actions have also been a convenient tool for exerting control over judges, especially those who speak out to protect their own independence. The incumbent Chief Justice appears to have been working for some time to take control over disciplinary proceedings. In a recent development, the sweeping outrage of judges against planned structural reforms may have created the political opportunity to further silence dissenting voices. The Chief Justice’s New Year Greetings made it clear that the threat is real. Hungary could be on the verge of a full-scale judicial capture.

Disciplinary initiative as a method of muzzling judges

The example of Poland shows that muzzling judges through disciplinary actions can serve as a systemic method to undermine judicial independence. In Hungary, the first notable incident occurred in 2018, when Tünde Handó, the then-President of the National Office for the Judiciary (NOJ), responsible for the central administration of courts, and certain court presidents attempted to initiate disciplinary proceedings against members of the National Judicial Council (NJC). The proceedings were ultimately discontinued as the NJC did not consent to disciplinary measures against its members, a legal prerequisite. Another serious breach was the initiation of disciplinary proceedings by the President of the Budapest-Capital Regional Court against a judge, who referred preliminary questions to the Court of Justice of the European Union on issues of judicial independence, resulting in a landmark decision. The disciplinary initiative was quickly withdrawn. Thus, the procedure did not end with a sanction either, but, like the other abovementioned violations, it had a chilling effect on judges who intended to stand up for judicial independence.

Consequently, a significant difference compared to Poland is that in Hungary, disciplinary proceedings initiated against judges in a flawed manner in highly sensitive cases were discontinued immediately after the initiation phase without progressing to completion or resulting in sanctions. This also means that in Hungary, the disciplinary courts (called service courts by the law) have not been tested as to whether they are partners in orchestrating such operations. However, their independence appears evident, as they themselves have come under attack.

Hungarian rules on disciplinary proceedings

In Hungary, judicial disciplinary proceedings are governed by a combination of primary and secondary legal norms. Primary norms are established through constitutional acts passed by a two-thirds majority in the Parliament. Secondary norms, adopted by the service courts and approved by the NJC, further regulate disciplinary procedures. Together, these norms form a binding framework for all judges, regardless of their judicial level or position, ensuring a uniform approach to disciplinary accountability and guaranteeing relative institutional independence of service courts within the judiciary.

Disciplinary proceedings are adjudicated by two service courts with nationwide jurisdiction: the First Instance Service Court and the Second Instance Service Court. Service court judges are full-time acting judges nominated at plenary meetings of courts and are appointed by the NJC for a nine-year term. Judges holding certain leadership positions are ineligible for service court appointments further guaranteeing institutional independence. The NJC also appoints the presidents of service courts, and reviews and approves their annual reports, which are published on the judiciary’s intranet. Anonymized final decisions are publicly available. Professional misconduct is defined by law as instances where judges culpably violate their service obligations or harm the reputation of the judiciary through lifestyle or behavior. The effective Code of Judicial Ethics, adopted in 2022 by the NJC, outlines the minimum rules of conduct expected in both official and personal capacities, emphasizing the importance of integrity and professionalism in maintaining public trust in the judiciary. This disciplinary system, under the control of the top-level judicial self-governance, ensures that the internal independence of service courts is fully guaranteed.

Issues of substance and procedure

It cannot be concealed, however, that there are some shortcomings in the regulation of disciplinary proceedings. The process within which secondary norms are adopted lacks the standards of lawmaking. Judges under disciplinary proceedings may face suspension, salary withholding, and restrictions on promotions or bonuses as interim measures imposed before the final decision, which conflicts with the presumption of innocence. Service court hearings are not public, even if requested by the judge involved, which undermines transparency. Another issue is the lack of clear and comprehensive procedural rules governing key safeguards of disciplinary hearings. In 2022, the President of the First Instance Service Court highlighted these gaps by submitting proposals to amend the relevant legislation, but no conclusive action was taken.  The current lack of clear procedural regulations undermines legal certainty and the right to a fair trial, potentially inviting concerns about undue interferences with respect to the removability of a judge. These problems are known to the Ministry of Justice, as it has established a working group on the issue with the aim of renewing the regulation. While new legislation is expected, it is feared that legislative steps will demolish the internal independence of service courts, and this fear is not unfounded.

Dark forces

Recently, Chief Justice András Zs. Varga – who was elected President of the Kúria (the Supreme Court of Hungary) in 2020 without courtroom experience through tailor-made legislation and disregarding the NJC’s opposing opinion – has launched fierce attacks against service courts. Rather than seeking additional safeguards for the procedural framework, his actions appear aimed at undermining the internal independence of disciplinary courts.

In his view, since an amendment to the Fundamental Law ”abolished” separate courts, the legitimacy of service courts is questionable. It is true that the Fundamental Law originally contained a reference to separate courts established for certain categories of cases, in particular administrative and labor disputes, and that this reference was deleted from the text in 2019. Nevertheless, the intention to abolish service courts cannot be derived from this modification, especially, because these continue to function under an act of constitutional rank, and no legal action has been taken to challenge their existence. It seems that Chief Justice Varga created a theoretical excuse to question the legitimacy of service courts waiting for the political moment to put this theory to work.

A political moment for capture

In late 2024, hundreds of Hungarian judges published open letters on the website of judicial associations to protest against the agreement that linked judicial salary increases to structural reforms, signed by the Minister of Justice and the Presidents of NOJ, the Kúria and the NJC, the latter acting under political pressure. In their public statement, the service court presidents declared their support towards the protesting judges, emphasizing that “within the legal framework, under the Code of Judicial Ethics and international conventions, judges have the right to express their opinions and are even obliged to do so in order to protect the independence of the judiciary. We will ensure that service courts uphold this principle in their proceedings and that judges may not be retaliated against for their opinion expressed with respect to the agreement.”

Chief Justice Varga sharply criticized the service courts at the next NJC meeting, claiming that its presidents fabricate falsehoods when “stepping out of their judicial role, denying the requirement of impartiality, and giving prior exemption from the consequences of any unconstitutional or illegal conduct, they lead the forefront of misleading judges.” It should also be noted that Chief Justice Varga has challenged the Code of Judicial Ethics before the Constitutional Court, mainly because he considered that it allowed an overly broad interpretation to freedom of expression. The case is still pending before the Constitutional Court, contributing to the chilling effect when it comes to the protection of judicial independence. Taking note of this development, the Committee of Ministers of the Council of Europe included the proceeding initiated against the Code of Judicial Ethics in monitoring the implementation of the Baka-case.

Happy New Year to Service Courts?

Verbal attacks by the Chief Justice on service courts went on in his 2025 New Year’s greetings to judges of the Kúria, in which he condemned those who have stood up for judicial independence, stating: “Those – fortunately few in number – who we know to have acted not out of misunderstanding or momentary impulse, but deliberately, knowingly and willingly. Having fed the public with falsehoods, they have even been willing to ridicule the judiciary in the streets or to help to institutionalize their departure from the judicial role as leaders of a formation that considers itself a court. They have tried to harm the Kúria – although it was not a real danger – and they have tried to harm Hungary’s courts even more – and it was a real danger. We will try to restore this too.”

The “formation that considers itself a court” is obviously no other than the service courts. They, along with the judges who have spoken out publicly in defense of judicial independence, have been threatened by Chief Justice Varga. His words of implied sanctions have been condemned by the NJC, the Hungarian Association of Judges and, more surprisingly, by the current NOJ President, who can also be considered a political appointee of the regime. All the representatives of the judiciary were therefore united in their opposition to the threats made by the Chief Justice. At one of the last meetings of the former NJC, in a heated debate recorded in the minutes, NOJ President György Senyei addressed Chief Justice Varga: “Everyone knows, or at least many of us know, that your wishful dream is to overpower the judiciary. Anyone who expresses a contrary opinion is treated as an enemy.”

We now see further evidence of this claim. There are reports of a Kúria judge being sanctioned for expressing his opinion (which the Chief Justice denies). In his quoted New Year’s letter, Chief Justice Varga threatened all judges who publicly condemned the agreement that linked pay rise with reforms, but his primary target is the independent service courts.

This is no coincidence. As a beneficiary of continuous legislation, he has already gained great influence over the jurisdiction through the limited case law system, the uniformity complaints procedure and by reshaping the case allocation scheme, while he has appointed several judges to the Kúria through unlawful practices. However, Chief Justice Varga does not yet exercise full control over all the country’s judges and has had no influence on the development of disciplinary cases. At least for now.

In the bull’s eye

Chief Justice Varga’s significant influence over the legislature is evident: Recently, he secured a threefold pay rise for Kúria judges compared to all other judges, with the government sidelining the NOJ President’s financial proposals in an unlawful manner. Simultaneously, he keeps putting pressure on judges not to express their opinions, as he also did before, even though this kind of violation is a long-standing issue in Hungary. In his latest letter, Chief Justice Varga warned the service court presidents that their statements do not fall within the scope of the protection of the judges’ freedom of expression.

In 2023, Hungary passed legislation to improve judicial independence. As a result, the European Commission decided to partially unfreeze EU funds to Hungary. Concerns persist that the forthcoming and yet partly unknown dangerous judicial reforms anticipated in the widely criticized quadrilateral agreement and their implementation method could further undermine judicial independence. In addition, the NJC’s weakness to resist, coupled with Varga’s increasing influence and his targeting of disciplinary courts, heightens fears of a full-scale judicial capture. It would be better to avoid this.