26 October 2022

Useless and Maybe Unconstitutional

Hungary’s Proposed Judicial Review of the Prosecutorial Decisions

With money for its Cohesion Programs on the line, the Hungarian government has proposed a series of measures to convince European Union institutions that it can properly handle EU funds. Otherwise, the Council will (or at least it should) vote to accept a proposal from the Commission to reduce Hungary’s budget allocations under the Conditionality Regulation. In previous blogposts, we have analyzed the two new institutions that the Hungarian government has already introduced by law and is on track to set up by December 1, the Integrity Authority and the Anti-Corruption Task Force, and we have shown that neither one is truly politically independent nor does either one have serious powers. Hungarian NGOs agree with this assessment.

In this blogpost, we will look at another aspect of the “reforms”: a new procedure that seems to allow the general public to challenge in court the decisions of Hungarian public prosecutors to drop corruption cases. As we will show, the new procedure is nearly impossible to use and adds little value to existing controls on the public prosecutor. In addition, the Hungarian Constitutional Court may declare it unconstitutional in any event.

First, a bit of background. In both the 2007-2013 and the 2014-2021 EU budgets, Hungary had the largest number of “financial corrections” of any EU Member State. (Financial corrections are refunds to the EU of money spent wrongly.) Hungary has been notorious in dropping OLAF files and in not complying with the recommendations issued by the Council of Europe’s Group of Countries Against Corruption (GRECO) which concluded in 2022 that Hungary’s performance was “globally unsatisfactory.” Hungary continues to refuse to sign onto the European Public Prosecutor’s Office even though a recent survey showed that 71% of Hungarians want the country to join.

Faced with substantial cuts to its EU funds, the Hungarian government has promised a long list of fixes for its corruption problems. The lack of high-level corruption prosecutions has long been an irritant to the EU, so one set of fixes identifies a set of existing “corruption crimes” and provides public oversight of the public prosecutor’s office by offering a new procedure through which members of the general public can challenge in court the decisions of the prosecutor’s office to drop these corruption cases without indictment.

As with the Integrity Authority and Anti-Corruption Task Force, however, this new avenue for challenging the public prosecutor’s inaction amounts to less than it appears. The government has created yet another Potemkin façade on the old institutions that have been at a minimum ineffective and perhaps even complicit in systemic corruption in Hungary to date.

The New Motion for Reconsideration

The new procedure to increase opportunities for challenging prosecutorial decisions was passed by the Hungarian Parliament in a nontransparent legislative procedure on 3 October 2022 as Bill T-706, amending the existing Criminal Procedure Code. The new law identifies a particular set of existing crimes as “major crimes related to the exercise of public authority or the management of public property” (new §817/A in the Criminal Procedure Code) and moves into this new category the crimes of corruption, abuse of office, embezzlement, fraud, misappropriation of public property, harm to the public budget, failing to properly supervise those with budgetary responsibilities, restricting competition in public procurement, as well as participation in a criminal organization and money laundering in relation to these crimes. Only these crimes are subject to the new procedure outlined in the law.

Already under the existing Criminal Procedure Code, the victim of a crime or the complainant who brought the crime to the attention of the authorities had the right to submit a complaint against a decision by the prosecutor or other investigative authority (like the National Tax Office or police) when it did not result in an indictment (§ 369 (1) Criminal Procedure Code). The new procedure extends the deadline for victims and complainants who want to file such a complaint in a corruption case from eight days to one month (new §817/C/1). Under the existing Criminal Procedure Code and retained in the new law, victims who are dissatisfied with the prosecutor’s dismissal of a case could already choose to press the case themselves as a substitute private prosecutor (§787 Criminal Procedure Code).

Since the EU has been pressuring the Hungarian government to provide additional oversight of the public prosecutor’s office, the new law adds the possibility that anyone could take up the same rights that the victims and complainants already had and ask the prosecutor to reconsider a corruption case or, if that fails, to seek a court order to reopen the case. If a court refuses to order the prosecutor to reopen a case, the members of the general public who use this new right may bring a private prosecution on their own.

But while the law seems to throw open the doors to everyone to check the public prosecutor, it excludes the state or “authorities that exercise public powers” from the ability to exercise this new right. The problem is, however, that the term “authorities that exercise public powers” is not precisely defined in the new Hungarian law. Although the Hungarian Constitutional Court has specified the meaning of this term in other contexts on a case-by-case basis, legal security would require that the term be clarified or that this new law explicitly point to some other legal authority whose definition the new law is explicitly adopting. (For example, the Tax Law and Act CLII of 2017 on EU Customs provide more specification.)

The exclusion of public authorities as eligible users of this new legal power would seem to exclude all those state bodies that are supposed to be fighting corruption on the front lines, including the public procurement and audit offices (like EUTAF which audits EU funds). In addition, the new Integrity Authority and the Anti-Corruption Task Force will most likely be excluded too, together with OLAF, as they all exercise powers related to public finances and decision-making on the allocation of EU funds. Because the institutions included among the “authorities that exercise public powers” are not clear, however, a case challenging the meaning of this phrase could of course be brought in the courts, up through the packed Supreme Court (Kúria) or the packed Constitutional Court. (For more about how the Kúria was packed, see here, and for how the Constitutional Court was packed, see here.) In short, if any arguably public body were to try to challenge the prosecutor’s decisions, packed courts at the highest levels of the Hungarian judiciary would have the power to interpret the law to exclude them.

That leaves the general public and NGOs as the new holders of rights under this new law. But will they know enough about any particular investigation that has been dropped to challenge the prosecutor to open it again? The law requires the public prosecutor to maintain a public list of investigations that are closed both without an indictment and without a motion for reconsideration raised by the victim or complainant, and mandates all decisions to be posted within five days, available for all to see (though for only one month). In theory, then, the public can learn what the prosecutor has done and decide whether or not to challenge dismissals of cases.

Suddenly, a Right to Privacy

But this is where the new procedure gets Kafkaesque. The Hungarian government has suddenly discovered the right to privacy when it comes to posting information about investigations dropped without indictment. This is the very government that has authorized unlimited police surveillance (as the European Court of Human Rights found in 2016 and then reconfirmed on 29 September 2022) and that has used Pegasus to spy on journalists, lawyers and the political opposition (as investigative reporting has revealed and then elaborated by documenting even more spying tools in use by the Hungarian government). Because of the right of data privacy held by suspects in criminal investigations, suddenly honored to a fault by the Hungarian government, dropped investigations will be posted to this public website without any individually identifiable information about who was being investigated or implicated in the corruption. Instead, the public files will use pseudonyms (new §817/C/2) and the details will be redacted so that those who were investigated cannot be identified out of concern for their privacy rights. One can imagine, of course, that Hungarian government’s excuse will be that EU law requires this.

The law brags that the database will be fully searchable by case number, the particular office that did the investigation, the date the decision was made and the precise crime involved. But there will be no public details of the case itself that would allow it to be associated with a particular person or persons. Who outside the relevant investigatory authority will know any of the details that can be searched in the database? And who outside these agencies can find a case they care about if no recognizable details are revealed? The general public will certainly not be able to tell much from the way that the case notices are published and therefore the general public will not find it easy to use their new-found rights.

Having the information to file a challenge is not the only problem. The new law places heavy burdens on the challenger once she decides to contest the case. The challenger must include with the request to reopen the case full legal reasoning explaining why the case should not have been closed. In addition, the law encourages the challenger to provide evidence to demonstrate that the facts of the case warrant prosecution (new §817/D/1).

But can the person submitting the motion for reconsideration see the work the prosecutor has already done? Absolutely not! As the law says, “the person submitting the motion for reconsideration may only see the anonymized decision and the anonymized list of case files among the case files before submitting the motion for reconsideration” (new §817/C/8). Anonymization of the files therefore applies especially to those who might file a motion for reconsideration. From the law, it is hard to see how the person filing the motion will know if their motion even applies to the particular decision they are challenging.

Even if challengers can figure out precisely which case has been dropped, more barriers are put in their way. They must secure legal representation, must communicate with the relevant authorities only through their counsel, may not ask for compensation of their costs in bringing such a motion, and cannot be excused if they failed to meet a time limit or due date even when the delay occurs through no fault of their own. Plus, of course, they must essentially make the case that the prosecutor should have made, with evidence and legal reasoning – something that will surely impose additional costs on challengers (§817/A/3-5).

Despite putting all of these burdens on challengers, the law creates short deadlines. The motion for reconsideration must be made within a month of the prosecutor’s decision. Making the case that the prosecutor didn’t make in less than one month may be impossible without access to the prosecutor’s files. Without having the power of the state to interrogate witnesses, demand the production of documents and otherwise track down evidence, how will a private individual or even an NGO do all this work in less than a month – or at all?

The new motion for reconsideration is designed to look like it is opening up the workings of the public prosecutor’s office for public oversight, but it does nothing of the kind. Instead, the prosecutor can hide behind an overblown right to privacy the only information that would allow outsiders to make that office accountable. The motion for reconsideration looks like compliance theater.

The Court at the End of the Road

And it gets worse. Suppose that a motion for reconsideration actually jumps all of these hurdles, challenges a decision that the challenger has properly guessed is the one that goes with their motion, and manages to present a full case for review against these tight deadlines. More obstacles appear in the law once the challenger prepares the case.

The motion for reconsideration does not go directly to a court for review, despite the public announcements that a judicial remedy will be provided. The motion makes its first stop back at the office that dropped the case (the prosecutor’s office or other statutorily designated investigatory body) and that office makes the first determination of whether the motion for reconsideration is well-founded (new §817/D/2). If that office agrees with the motion, the office cancels its earlier decision to drop the case and orders a continuation of the procedure. Of course, one could imagine that the path of least resistance for any office once challenged might be simply to announce that the case has been reopened and then to slow-walk it as long as general statutory deadlines permit. Under the existing Criminal Procedure Code, decisions must be made in a case within two years of the interrogation of the suspect with an additional six months granted for exceptional cases. Remedies will not be speedy. And of course, there is still no requirement that an indictment will eventually issue.

If the office that dropped the case does not find the motion for reconsideration to be well-founded, it must transfer the motion up one level within the same agency to determine whether the case should be reopened. If that appellate authority finds that the case does not merit reopening based on the arguments and evidence of the petitioner, that reviewing office must then send the petition to a court for review (new §817/D/3). The court then acts as something like a second level of appeal, with the first level taking place inside the very agency that is being complained against in the motion.

The Hungarian government promised the European Commission that there would be a way for a court to review decisions by the public prosecutor and other investigatory authorities to drop corruption cases and, like many of the government’s promises, this one is literally true but in general misleading. After all of the obstacles put in the way of getting to that court, there is indeed a court at the end of the road.

That said, there is only one court at the end of that road. All motions for reconsideration go to the investigating magistrates attached to the Central District Court of Buda (in Hungarian: the Budai Központi Kerületi Bíróság, BKKB) (§817/E/1). The investigative judge at the BKKB who is assigned to this case will at last have access to the case files generated by the prosecutor’s office as well as to the documents submitted by the petitioner (new §817/F/1). After considering all the evidence and legal arguments, the investigating magistrate can either decide that the challenge to the prosecutor’s decision is unfounded and reject the motion, or she can order the prosecutor to reopen the case by annulling the decision to close the case (new §817/F/2-5). The judge cannot order a specific conclusion, no matter how strong the evidence. Indictment is still left for the public prosecutor’s office, as before (new §817/G). The only remedy available through a court, then, is for the judge to order the prosecutor to reopen the case. And then the matter is back in the prosecutor’s hands.

If the petitioner loses at this stage, there is no appeal to a higher court, but she may proceed with a private prosecution of the alleged offender in a corruption crimes case (new §817/H-I). The petitioner, now acting as private prosecutor, has two months to prepare the indictment (new §817/L) and finally gains access to the prosecutor’s files, except those that have been sealed (though the law specifies no grounds on which these files can be sealed). The petitioner must work through (and pay for) her own counsel who is the only person entitled to deal directly with the courts in this matter. Once the indictment has been prepared and submitted to a court, the judge will examine it to determine whether the person designated as the defendant can be reasonably suspected of having committed the named crime (new §817/N) and whether the indictment has met a series of formal requirements. If an indictment is rejected by the court at this stage, there is no appeal (new §817/M/7). The case is over.

If the indictment is accepted, it will be served on the defendant who, together with defense counsel, will gain access to the files, accusations and evidence. At this point, the petitioner will “exercise the rights of the prosecutor’s office and perform the tasks of the prosecutor’s office” including issuing arrest warrants and detention orders (new §817/Q/1). But all of this is still being done by a private individual or group, with required aid of counsel, but without any financial resources of the state, so it will quickly become expensive and technical, and will almost inevitably fall outside the prior experience of almost anyone who undertakes this responsibility. If during the trial proceedings, the petitioner or her counsel are not present, fail to follow the rules of the court or disrupt the proceedings, the whole private prosecution may be terminated (new §817/R).

Most crucially, however, if the private prosecution fails and the defendant is acquitted, the petitioner bringing the private prosecution must pay the expenses of both sides as well as court costs (new §817/T). The petitioner may not ask for a retrial or review of the case (new §817/U) as this court procedure gives the challenger only one opportunity to make the case.

This, then, is what passes for the new oversight on the office of the public prosecutor in corruption cases. Those who challenge prosecutors through this procedure must act in the dark, not knowing which case is which on the basis of anonymized publication of case dispositions. Then petitioners must repeat the work of the public prosecutors without being able to consult them through most of the stages of the process. By the time the petitioner sees the prosecutor’s files, the petitioner might already have repeated much of the investigation and incurred substantial costs. Because all costs fall on the petitioners (including those of the defendant if the petitioner loses in court), this is a right that can get very expensive very quickly – and it is almost surely doomed to failure because the prosecution always has the ability to reopen and prolong the case at any stage prior to the launching of a private prosecution without any promise of a satisfactory conclusion.

Seen as a whole, this new procedure for challenging prosecutor’s decisions in court gives the courts many reasons to shut down the attempt to challenge the prosecutor, and there are no appeals along the way. If the prosecution and the courts play hardball, the petitioner can go solo and run a prosecution on her own, expenses and all. But who would really do that given the investment it would require – and would there be any chance such a prosecution could succeed?

We might also add that, because this new remedy attaches only to the crimes designated as corruption crimes, the public prosecutor can avoid any danger of being challenged in this way by simply classifying the underlying crime as something else. Thus, fraud can become lying to the authorities or misappropriation of public property can become garden-variety theft. Once the prosecutor drops cases investigated under those headings, this new law provides no remedy.

Despite having a court at the end of the road, virtually all roads in this procedure lead back to the public prosecutor who is nearly impossible to bypass. Given that the Commission launched the Conditionality Regulation against Hungary, pointing to the weak investigations in the misspending of Union funds “due to concentration of powers in the hands of the Prosecutor General’s Office” (para. 34), this new procedure might be mistakenly seen to loosen that concentration. But it doesn’t really do so.

The Other Court at the End of the Road – The Constitutional Court

The bill has passed the Parliament, so the European Commission and the Council may well believe that Hungary has complied with its promise to provide a judicial remedy when investigatory authorities in Hungary have dropped corruption investigations too soon. But with this new procedure, there is an additional catch. It isn’t law yet.

After the bill passed the Parliament, the government submitted a motion to ask the Parliament to send the act to the Constitutional Court to examine its conformity with the Fundamental Law. So the Parliament has now asked the Constitutional Court to decide whether anyone but the public prosecutor has the legal capacity to bring a public indictment. The Constitutional Court therefore will have to answer whether these new rules that provide for private pro