All quiet in the judiciary: low voice of Hungarian judges and the role of European courts

Hungary has received international attention in recent years for being the first fully consolidated democracy to turn into an autocracy. Neither domestic checks and balances, such as an independent judiciary, nor transnational institutions, such as the European Union and the Council of Europe have been able to intercept the process, and by now autocratization has reached a level, where resistance is less and less effective. The judiciary is no exception. The Hungarian judiciary is traditionally apolitical, and the legislative framework reflects a highly restrictive approach to judicial free speech which fundamentally shapes judges’ understanding of the scope of their freedom of expression. We seek to determine the core of this understanding as we believe that it presents a major obstacle to mobilizing judges to defend judicial independence. Since 2010, the government have been putting constant political pressure on courts, and most recently, even court executives have taken various steps to silence judges critical of some elements of the legal system or the current form of court administration. All these seriously discourage judges from making extrajudicial statements in matters related to the rule of law and judicial independence. On the one hand, the paper deals with judges exercising their right to freedom of expression as a rare form of resistance against the autocratic government of Hungary ever since 2010. On the other hand, the paper also discusses the responsibility of the European institutions, when responding to the violations of the freedom of expression of judges and to the dismantlement of judicial independence more generally. The European Court of Human Right’s judgment in the Baka case together with the Council of Europe’s failure to enforce it, and the decision of Court of Justice of the European Union on the early retirement age of judges seem to demonstrate that the European courts often chose the simpler solution, which besides national government’s actions also lower the voice of Hungarian judges.