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28th Oct 2021

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Hungarian judge claims she was pushed out for political reasons

A Hungarian judge has filed a complaint with the EU Commission, arguing she was forced out of the country's judiciary because she had asked for a preliminary ruling from the European Court of Justice (ECJ) on sections of the Hungarian government's laws on restricting asylum.

And the ECJ - in a response to the judge's request for a preliminary ruling - said in 2020 that those parts of Hungary's asylum rules are contrary to EU rules.

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Judge Gabriella Szabó's decision to question the stricter asylum rules - which came to force in 2018 - then put her in direct conflict with prime minister Viktor Orbán's government and its strong anti-migration policy.

"We can confirm that the commission received this letter which we are now looking into it," a commission spokesperson told EUobserver.

In August 2018, Szabó had asked for a preliminary ruling from the European Court of Justice to check if the stricter rules are compatible with the EU asylum law.

A Syrian migrant's asylum application had been rejected earlier that summer, because the new rules said that if an asylum-seeker arrives in Hungary via a safe transit country, such as neighbouring Serbia, their application is inadmissible.

The human rights NGO, Hungarian Helsinki Committee, challenged the Immigration and Asylum Office's decision in court on behalf of the migrant.

Following Szabó's request, the ECJ in March 2020 ruled the new Hungarian rules were indeed contrary to EU legislation.

It also meant that Hungarian courts have not been able to apply that part of the law that went against EU rules.

As a freshly-appointed administrative judge in 2018, Szabó's tenure lasted for three years - after which the Budapest Regional Court evaluated her work, before she could be appointed indefinitely.

But in March this year, that court deemed her unsuitable during the evaluation process and did not recommend her unlimited appointment - which means her mandate ended on 30 June.

Szabó sent a complaint in March to EU Commission vice-president Věra Jourová and justice commissioner Didier Reynders about her case, detailing the reasons she believes her removal is politically-motivated.

"Ordering for a preliminary reference, I was immediately subject of harassments and discrimination in Hungary, also within my court," Szabó wrote in her complaint to the commission, seen by EUobserver.

She cites an attack by pro-government media, and a private warning from a former president of the administrative and labour court - where Szabó worked - that with such decisions she "won't be prolonged for indefinite time".

"The findings of the evaluation are arbitrary and aim [at] personal retaliation," Szabó said in the complaint, arguing that it was "very rare" to disqualify judges in the first evaluation, and that the assessment disregarded the favourable opinion of her by a senior judge at the appellate court.

"It is presumable that the real motivation of my removal from the judiciary can be linked to my previous order for a preliminary reference that interferes [with] the political interests of the Hungarian government. Although my superiors didn't refer to this directly as the main reason of my disqualification, but the general circumstances and certain overlaps clearly show the malicious intentions of the court management," Szabó wrote.

The commission's assessment could now take up to a year.

'Deterrence'

Gábor G. Székely, lawyer for judge Szabó, told EUobserver: "She has received informal, and formal, signals that she should not be asking questions from the European Court of Justice".

"If there had been so much problem with her work as they now say, they should have intervened earlier, she should not have been allowed to work for three years," Székely said.

EUobserver has also asked the Hungarian court in charge. The Budapest Regional Court said it cannot comment on questions relating to Szabó's case.

"For reasons concerning the rights of the individual, we are not able to answer the questions contained in your request," the court said in an emailed statement.

Asked what evidence he has of political pressure, Székely said "all the signs and circumstances point to this".

"Of course, for my part, this is more of a professional opinion than tangible physical evidence," he said.

"We are not simply talking about political pressure here, but rather a series of actions born of a compulsion to comply, which, of course, is also interwoven with the political thread," Székely added.

"The goal is deterrence, to set an example. The messages are 'nobody can tell the Hungarian courts what to do, don't ask for preliminary rulings'," Székely said.

Szabó has since challenged the evaluation at a so-called "service court", designed to deal with matters concerning judges.

Commission challenge

In July 2018, the EU Commission started its own infringement procedure on the same asylum issue on which Szabó requested a preliminary ruling, saying the "introduction of a new non-admissibility ground for asylum applications, not provided for by EU law," is in violation of the EU asylum rules.

The commission said that the new law - dubbed 'Stop Soros' by the Hungarian authorities themselves - and the constitutional amendment on asylum curtail the right to asylum in a way that breaks EU rules.

The advocate general's non-binding opinion on the matter in February reconfirmed that Hungary's legislation on new grounds for inadmissible asylum application - namely, if the applicant transited through a safe country before arriving in Hungary - is against EU rules.

The advocate general also said that part of the legislation that criminalises providing assistance to asylum seekers, such as counselling and legal advice, also breaks EU rules.

Rule-of-law concerns

Szabó's case would not be the first time a judge in Hungary has been targeted for turning to the European Court of Justice.

The commission's 2020 annual report on rule of law cites a case from 2019.

In that instance, the Kúria (Hungary's highest court), based on a motion by the prosecutor general, declared a preliminary reference to the ECJ unlawful. It considered the judge's questions - part of which referred to the independence of Hungary's judiciary - irrelevant.

The commission's report also notes that in October 2019, the president of the Budapest Regional Court, Péter Tatár-Kis, "referring explicitly to the judgment of the Kúria, initiated disciplinary proceedings against the judge", Csaba Vasvári, who issued the preliminary reference. A month later, the court president withdrew his motion.

This April, the advocate general of the ECJ said that the contested decision of the Kúria "undermine[s] the power of the national court to refer questions" to the ECJ for a preliminary ruling and "therefore undermine[s] the operation of the preliminary ruling mechanism".

In the case of Szabó, according to the complaint sent to the commission, court president Tatár-Kis called on her to resign after her evaluation deemed her unsuitable. He also launched another procedure regarding her competence at the service court, according to Szabó's lawyer.

The commission's rule-of-law report also said that "over the past years, judicial independence in Hungary has been raised by EU institutions as a source of concern", and that the "call for strengthening judicial independence, [...] remains to be addressed."

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