SECOND SECTION
CASE OF BAKA v. HUNGARY
(Application no.
20261/12)
JUDGMENT
(Merits)
STRASBOURG
27 May 2014
This
judgment will become final in the circumstances set out in Article 44 § 2 of
the Convention. It may be subject to editorial revision.
In the case of
Baka v. Hungary,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Işıl Karakaş,
Nebojša Vučinić, judges,
Helena Jäderblom, ad hoc judge,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy
Section Registrar,
Having
deliberated in private on 15 April 2014, delivers the following judgment, which
was adopted on that date:
PROCEDURE
1. The case originated in
an application (no. 20261/12) against the Republic of Hungary lodged with the
Court under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr András Baka
(“the applicant”), on 14 March 2012.
2. The applicant was
represented by Mr A. Cech, a lawyer practising in Budapest. The Government were
represented by their Agent, Mr Z. Tallódi, of the
Ministry of Public Administration and Justice.
3. The applicant alleged,
in particular, that he had been denied access to a tribunal to contest the premature
termination of his mandate as President of the Supreme Court. He also
complained that he had been removed from office as a result of the views and
positions that he had expressed publicly in his capacity as President of the
Supreme Court.
4. On 29
November 2012 the
application was communicated to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time (Article 29 §
1).
5. On
5 March 2013 the President of the Section granted the Hungarian Helsinki
Committee, the Hungarian Civil Liberties Union, the Eötvös Károly
Institute, and the Helsinki Foundation for Human Rights of Poland, leave, under
Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, to
intervene as third parties in the proceedings.
6. Mr
A. Sajó, the judge
elected in respect of Hungary, was unable to sit in the case (Rule 28). The
Government accordingly appointed Ms Helena Jäderblom, the judge
elected in respect of Sweden, to sit in his place (Article 26 § 4 of the
Convention and Rule 29 § 1 (a) of the Rules of Court as in force at the time).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
7. The applicant was born in
1952 and lives in Budapest.
A. Election
of the applicant as President of the Supreme Court and his functions
8. On 22 June 2009, after
seventeen years of service (1991-2008) as a judge at the European Court of
Human Rights and, subsequently, more than one year’s service as a member of the
Budapest Court of Appeal, the applicant was elected by the Parliament of
Hungary, by decision no. 55/2009 (VI.24) OGY, as President of the Supreme
Court for a six-year term, until 22 June 2015.
9. In that capacity, the
applicant not only performed managerial tasks but also had a judicial role,
presiding over deliberations on uniformity issues and guiding decisions. He was
also President of the National Council of Justice. This second function was
added to the tasks of the President of the Supreme Court in 1997 by the
Organisation and Administration of the Courts Act (Act LXVI of 1997). As the
head of the National Council of Justice, the applicant was under an explicit statutory
obligation to express an opinion on parliamentary bills that affected the
judiciary, after having gathered and summarised the opinions of different
courts via the Office of the National Council of Justice.
10. On 13 October 2011 the
General Assembly of the Network of the Presidents of the Supreme Judicial
Courts of the European Union unanimously elected the applicant President of the
Network for a two-year term (from 2011 to 2013).
B. Background
to the case
11. In April 2010 the
alliance of Fidesz–Magyar Polgári Szövetség (Fidesz–Hungarian Civic Union,
hereinafter “Fidesz”) and the Christian Democratic People’s Party (“the
KDNP”) obtained a two-thirds parliamentary majority and undertook a programme of
comprehensive constitutional reform. Thereafter, the applicant spoke up several
times in order to express his views on the integrity and independence of the
judiciary. In his professional capacity as President of the Supreme Court and
the National Council of Justice, the applicant expressed his views on four
issues: the Nullification Bill; the retirement age of judges; the amendments to
the Code of Criminal Procedure; and the new Organisation and Administration of
the Courts Bill.
12. Firstly, the
Nullification Bill (subsequently Act XVI of 2011) sought to redress convictions
relating to the crowd dispersion in autumn 2006. The applicant criticised the
manner in which that goal would be achieved, namely by reopening final
judgments and annulling through legislation certain judicial decisions. On 12
February 2011 the applicant’s spokesman explained to the Népszabadság newspaper that, in the applicant’s view:
“the Bill ordering the annulment of some
judicial decisions delivered in relation to the 2006 riots gives cause for
concern, because it violates the right of judges to freely assess evidence.
This is a serious constitutional problem. ... the judiciary is examining the
Bill only from a professional point of view and distances itself from any kind
of political debate. András Baka [the applicant], President of the National
Council of Justice, hopes that Parliament will choose a legal technique that
eliminates the problem of unconstitutionality”.
On 8 March
2011, the day after the adoption of the Bill, István Balsai (Fidesz MP,
Chairman of the Constitutional, Judicial and Standing Orders Committee of
Parliament at the relevant time), responded to the critiques of the judiciary
in a press conference, where he declared: “The adopted legal solution was said
to be unfortunate. Now, I myself find it unfortunate if a member of the
judiciary, in any position whatsoever, tries to exert influence over the
legislative process in such a way”.
13. Secondly, in relation
to the proposal to reduce the mandatory retirement age of judges (from seventy
to the general retirement age of sixty-two) in Article 26 (2) of the
Fundamental Law of Hungary, on 7 April 2011 court presidents,
including the applicant, addressed a letter to different actors in the
constitutional process (the President of the Republic, the Prime Minister, the
Speaker of Parliament) in which they pointed out the possible risks to the
judiciary posed by that proposal. Their concern was that by abolishing the possibility
for judges to remain in office until the age of seventy, the proposed rule
would force one tenth of Hungarian judges (274 persons) to end their
careers unexpectedly in 2012. In the morning of 11 April 2011 (the day of the
vote on the proposals for amendment), the applicant addressed a letter to the
Prime Minister in which he stressed that the proposal was humiliating and
professionally unjustifiable; it infringed the fundamental principles of
independence, status and irremovability of judges; and it was also
discriminatory, since only the judiciary was concerned. He added as follows:
“It is, however, unacceptable if a political party or the majority of
Parliament makes political demands on the judiciary and evaluates judges by
political standards.”
The same day,
Parliament adopted the above-mentioned proposal (see Relevant domestic law
below).
14. On 14 April 2011 the
plenary session of the Supreme Court, the applicant in his capacity as
President of the National Council of Justice, as well as the presidents of
regional and county courts addressed a communiqué to the Hungarian and European
Union public, pleading for the autonomy and independence of the judiciary and
criticizing the new mandatory retirement age for judges. The relevant extracts
from the communiqué read as follows:
“According to
the proposal, the mandatory retirement age of judges will be reduced by eight
years as of 1 January 2012. As a result, the tenure of 228 judges (among them
121 judges responsible for court administration and professional supervising)
will be terminated the same day, without any transition period, due to the fact
that they will have turned 62. By the 31 December 2012 a further 46 judges will
have to terminate their career. As a consequence of this decision the
timeliness of judicial proceedings will significantly deteriorate (reassignment
of nearly 40 000 cases will be necessary, which may even cause several
years’ delay in the judicial proceedings of tens of thousands of clients). The
administration of courts will be seriously hindered since the replacement of
dozens of retiring judges is extremely difficult.
The multiple
effect of the forced pensioning off, without any real justification, of highly
qualified judges, who have several years of experience and practice, and most
of whom are at the apex of the hierarchy, will fundamentally shatter the
functioning of the court system – leaving aside other unforeseeable
consequences. Moreover, the proposal is unfair and humiliating with respect to the
persons concerned, who took an oath to serve the Republic of Hungary and to
administer justice and who devoted their life to the judicial vocation.
It is
incomprehensible why the issue of the retirement age of judges is worth
regulation in the Fundamental Law. There is only one answer: by including it in
the Fundamental Law, there will be no chance to contest this legal rule, which
violates the fundamental principles of a democratic state governed by the rule
of law, before the Constitutional Court.
Such an
unjustified step insinuates a political motivation. ”
15. Thirdly, on 14 June
2011, Bill T/3522 on the amendment of certain legislation concerning judicial procedure
and the judicial system (including the Code of Criminal Procedure) was
submitted to Parliament. At the applicant’s request, the Criminal Law Division
of the Supreme Court prepared an analysis of the Bill, which was communicated
to Members of Parliament. As no substantive changes were made to the Bill
(enacted on 4 July 2011 as Act LXXXIX of 2011), the applicant decided to
challenge the Act before the Constitutional Court on grounds of
unconstitutionality and violation of obligations enshrined in international
treaties, making use of that prerogative for the first time in Hungarian
history. The Constitutional Court, in its decision no. 166/2011.(XII.20.) AB of
19 December 2011, established the unconstitutionality of the impugned
provisions and quashed them (notably, the provision concerning the Attorney
General’s right to establish court competence by derogation from default
statutory rules).
16. Lastly, the applicant
expressed his views in a parliamentary debate on two new Cardinal Bills: the
Organisation and Administration of the Courts Bill (no. T/4743) and the Legal
Status and Remuneration of Judges Bill (no. T/4744). According to the
explanatory memorandum to the Bills, it was proposed that the National Council
of Justice be abolished and replaced by a National Judicial Office and a
National Judicial Council. The purpose of those proposals was to separate
judicial and managerial functions, which had been “unified” in the person of
the President of the Supreme Court, who was at the same time president of the
National Council of Justice. The proposed reform sought to concentrate the
tasks of judicial management in the hands of the president of the new National
Judicial Office, while leaving the responsibility for overseeing the uniform
administration of justice with the president of the Supreme Court (renamed with
the historical appellation “Kúria”). On 26 October 2011, the applicant
addressed a detailed analysis of the Bills to Parliament, taking account of the
comments received from judges throughout the country. He also decided to
express his opinion directly before Parliament, in accordance with Article 45 §
1 of Parliamentary Decision 46/1994 (IX.30) OGY on the Rules of Parliament. In
his speech, delivered on 3 November 2011, the applicant raised his concerns
about the fact that the draft legislation did not address the structural
problems of the judiciary, but left them to the discretion of the chief
executive of an external administration (the president of the new National
Judicial Office), to whom excessive and, in Europe, unprecedented powers were
being conferred without adequate accountability.
C. Removal
of the applicant as President of the Supreme Court
17. The Fundamental Law of
25 April 2011 established that the highest judicial body would be the Kúria
(the historical Hungarian name for the Supreme Court).
18. On 19 October 2011, in
an interview on ATV, the State Secretary of Justice, Róbert Répássy, MP,
declared that under the Organisation and Administration of the Courts Bill (no.
T/4743), the new Kúria would have the same function as the current Supreme
Court and that only the Supreme Court’s name would change. He said that the
legislation “will certainly not provide any legal ground for a change in the
person of the Chief Justice”. Some months earlier, on 14 April 2011, during a
debate on the Fundamental Law, another Fidesz politician, Gergely Gulyás, MP,
had declared on Inforádió that the President of the Supreme Court would remain
the same and that only the name of the institution would change.
19. On 19 November 2011,
Gergely Gulyás submitted a Bill (no. T/4996) to Parliament proposing an amendment
to the 1949 Constitution. The amendment sought to provide that Parliament would
elect the president of the Kúria by 31 December 2011 at the latest.
20. On 20 November 2011,
MPs János Lázár and Péter Harrach, Fidesz and KDNP party leaders respectively,
submitted a Bill (no. T/5005) to Parliament on the transitional provisions
of the Fundamental Law of Hungary. Under section 11 the legal successor of the
Supreme Court and the National Council of Justice would be the Kúria for the
administration of justice, and the President of the National Judicial Office
for the administration of the courts. Pursuant to section 11(2) of the
Transitional Provisions of the Fundamental Law of Hungary Bill, the mandates of
the President of the Supreme Court as well as of the President and members of
the National Council of Justice would be terminated upon the entry into force
of the Fundamental Law. The reasoning of the Bill stipulated that it provided
comprehensive regulation of the succession of the Supreme Court, the National
Council of Justice and their President. The successor (body or person) would be
different according to the different nature of the separated functions. Having
regard to the modifications of the court system, the Bill provided that the
mandates of the President of the Supreme Court currently in office, as well as
that of the President and members of the National Council of Justice, would be
terminated upon the entry into force of the Fundamental Law.
21. In order to bring other
legislation into line on this issue, on 23 November 2011 a Fidesz MP,
Ferenc Papcsák, submitted an amendment to sections 185 and 187 of the
Organisation and Administration of the Courts Bill. The amendment sought to
terminate the mandates of the members and President of the National Council of
Justice as well as those of the President and Vice-President of the Supreme
Court upon the entry into force of the Fundamental Law.
22. On 28 November 2011
Parliament enacted both the Organisation and Administration of the Courts Bill
(as Act CLXI of 2011) and the Constitution of the Republic of Hungary
(Amendment) Bill (as Act CLIX of 2011), the content of which is described
above. The Transitional Provisions of the Fundamental Law of Hungary Bill was
adopted without amendment on 30 December 2011 and published (as Transitional
Provisions of the Fundamental Law of Hungary) in the Official Gazette on
31 December 2011. The date of the entry into force of the Fundamental
Law was scheduled for 1 January 2012.
23. The applicant’s mandate
was terminated on 1 January 2012, three and a half years before its normal date
of expiry.
D. Election
of a new president to the Kúria
24. In order for a new
president to be elected to the Kúria in due time, the Constitution of the
Republic of Hungary (Amendment) Act (Act CLIX of 2011, adopted on 28 November
2011, see paragraph 22 above) entered into force on 2 December 2011. On 9
November 2011, the Organisation and Administration of the Courts Bill was
amended with the introduction of a new criterion for the election of the new
president of the Kúria. It provided that he or she would be elected by
Parliament from among the judges appointed for an indeterminate term, having
served at least five years as a judge (section 114(1) of Act CLXI of 2011 – see
Relevant domestic law below). On 9 December 2011, the President of the Republic
proposed that Parliament elect Péter Darák as President of the Kúria and
Tünde Handó as President of the National Judicial Office. On 13 December 2011,
Parliament elected those candidates in accordance with the proposal of the
President of the Republic.
E. Consequences
of the early termination of the applicant’s mandate as President of the Supreme
Court
25. The applicant is
serving as a judge of the new Kúria (civil section). According to the internal
regulation on press contacts at the Kúria, he is no longer entitled to express
his opinions freely, as the giving of interviews is subject to prior consent by
the President of the Kúria.
26. The premature
termination of the applicant’s mandate has also had pecuniary consequences.
Firstly, he has lost the remuneration and other benefits (social security,
presidential residence, personal protection) to which a president of the
Supreme Court is entitled throughout the period of the fixed presidential term.
Secondly, outgoing presidents of the Supreme Court had the statutory right
to certain benefits (an allowance for six months following the termination of
his or her mandate, an office and a secretariat with two employees for two
years, a pension supplement for life) of which the applicant was also deprived.
The Remuneration and Allowances Act 2000 dealing, inter alia, with the entitlements of the President of the Supreme
Court, was repealed as from 1 January 2012. Section 227(1) of the Legal
Status and Remuneration of Judges Act 2011 (as amended on 28 November
2011, in force from 1 January 2012) supplemented this abrogation and stipulated
that the repealed legislation would be applied to any former president of the
Supreme Court only to the extent that he or she was entitled to the allowance
specified in sections 26(1) and 22(1) (pension supplement for life), if he or
she had reached retirement age at the time of the entry of force of the Act and
had requested the allowance.
27. Since the applicant had
not attained retirement age by 1 January 2012, he could not claim
payment of that post-function benefit.
F. European
Commission procedures and the proceedings before the Court of Justice of the
European Union
28. On 12 December 2011, EU
Justice Commissioner Viviane Reding wrote a letter to the Hungarian authorities
raising concerns on the issue of the retirement age of judges. An annex to the
letter also raised the issues of the President of the new National Judicial
Office and the transformation of the Supreme Court into the Kúria, in
particular the early termination of the applicant’s mandate as President of the
Supreme Court before the end of the regular term. The Hungarian authorities
answered and the European Commission, on 11 January 2012, issued a
statement on the situation of Hungary.
29. On 17 January 2012, the
Commission decided to open “accelerated” infringement proceedings against
Hungary on, inter alia, the
independence of the judiciary.[1]
As regards the new mandatory retirement age for judges (and prosecutors), the
Commission stated that EU rules on equal treatment in employment (Directive
2000/78/EC) prohibited discrimination at the workplace on grounds of age. Under
the case-law of the Court of Justice of the EU, an objective and proportionate
justification was needed if a government were to decide to reduce the
retirement age for one group of people and not for others. The Commission did
not find any objective justification for treating judges and prosecutors
differently from other groups, notably at a time when retirement ages across
Europe were being progressively increased. The Commission also asked Hungary
for more information regarding the new legislation on the organisation of the
courts. In its press release IP/12/24, the Commission stated as follows:
“[u]nder the
law, the president of a new National Judicial Office concentrates powers
concerning the operational management of the courts, human resources, budget
and allocation of cases. ... In addition, the mandate of the former president
of the Supreme Court, who was elected for six years in June 2009, was
prematurely terminated at the end of 2011. In contrast, other former judges of
the Supreme Court continue their mandate as judges of the new Curia, which has
replaced the Supreme Court.”
30. On 7 March 2012, the
Commission decided to send Hungary a reasoned opinion on the measures regarding
the retirement age of judges and an administrative letter asking for further
clarifications regarding the independence of the judiciary, in particular in
relation to the powers attributed to the President of the National Judicial
Office (powers to designate a court in a given case and the transfer of judges
without consent).
31. On 7
June 2012, the European Commission referred the case to the Court of Justice of
the European Union (case C-286/12). On 6 November 2012, the Court of
Justice declared that by adopting a national scheme requiring the compulsory
retirement of judges, prosecutors and notaries when they reach the age of
sixty-two – giving rise to a difference in treatment on grounds of age which is
not proportionate as regards the objectives pursued – Hungary had failed to
fulfil its obligations under Council Directive 2000/78/EC of 27 November 2000,
which established a general framework for equal treatment in employment and
occupation. The court observed that the categories of persons concerned by the
provisions at issue benefited, until their entry into force, from a derogation
allowing them to remain in office until the age of seventy, which gave rise, in
those persons, to a well-founded expectation that they would be able to remain
in office until that age. However, the provisions at issue abruptly and
significantly lowered the age-limit for compulsory retirement, without
introducing transitional measures to protect the legitimate expectations of the
persons concerned.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. Constitution
of 1949
32. The relevant articles
of the Constitution (as amended and in force at the material time) provided as
follows:
Article 47
“(1) The
Supreme Court shall be the highest judicial organ of the Republic of Hungary.
(2) The
Supreme Court shall ensure uniformity in the application of the law by the
courts; its uniformity resolutions shall be binding on all courts.”
Article 48
(1)
“[t]he President
of the Supreme Court shall be elected by Parliament upon the recommendation of
the President of the Republic ... A majority of two-thirds of the votes of
Members of Parliament shall be required to elect the President of the Supreme
Court.”
B. Organisation and Administration of the Courts Act (Act
LXVI of 1997)
33. Section 62 of the Act
listed the president of a court among the so-called “court executives”, that is
judges responsible for the management and administration of courts and judicial
organisational units.
34. Under section 69 of the
Act, court executives were appointed for six years.
35. Section 73 of the Act
contained an exhaustive list of reasons for terminating the mandates of court
executives. It provided that:
“[t]he term of
office of a court executive shall come to an end by:
a) mutual
agreement,
b) resignation,
c) dismissal,
d) the
expiry of the period of the term of office,
e) the
termination of the person’s judicial mandate”.
36. Under section 74/A(1)
of the Act, if an appraisal of the court executive’s management activity
established his or her incompetence for such a managerial position, the court
executive was to be dismissed from his or her office with immediate effect. The
dismissed court executive was entitled to seek a legal remedy before the
Service Tribunal to contest the dismissal within fifteen days of service of a
dismissal notice (section 74/A(2)).
37. The Act established the
National Council of Justice and added the function of being at the same time
President of that Council to those of President of the Supreme Court. The
President of the National Council of Justice was under an explicit statutory
obligation to express an opinion on parliamentary Bills that affected the
judiciary, after having gathered and summarised the opinions of different
courts via the Office of the National Council of Justice (section 46(1)(q) of
the Act).
C. Legal Status and Remuneration of Judges Act (Act LXVII of
1997)
38. Under section 57(2),
sub-paragraphs (ha) and (hb) of the Act, a judge was entitled to serve beyond
the general retirement age, up to the age of seventy.
D. Fundamental
Law of Hungary of 25 April 2011, which entered into force on 1 January 2012
39. Articles 25 and 26 of
the Fundamental Law provide as follows:
Article 25
“(1) The courts shall administer
justice. The supreme judicial body shall be the Kúria.
(2) The courts shall decide on:
a) criminal matters, civil disputes,
and other matters defined by law;
b) the legitimacy of administrative
decisions;
c) the conflict of local ordinances
with other legislation and on their annulment;
d) the
establishment of non-compliance by a local authority with its statutory
legislative obligations.
(3) In
addition to the responsibilities defined by paragraph (2), the Kúria shall
ensure uniformity in the judicial application of laws and shall make decisions accordingly,
which shall be binding on the courts.
...
(8) The
detailed rules for the organisation and administration of the courts, and of
the legal status and remuneration of judges shall be regulated by a Cardinal
Act[2].”
Article 26
“(1) Judges
shall be independent and only subordinated to laws, and may not be instructed
in relation to their judicial activities. Judges may be removed from office
only for the reasons and in a procedure defined by a Cardinal Act. Judges shall
not be affiliated to any political party or engage in any political activity.
(2) Professional
judges shall be appointed by the President of the Republic as defined by a
Cardinal Act. No person under thirty years of age shall be eligible for the
position of judge. With the exception of the President of the Kúria, no judge
may serve after reaching the general retirement age.
(3) The
President of the Kúria shall be elected by Parliament from among the judges for
nine years on the proposal of the President of the Republic. The election of
the President of the Kúria shall require a two-thirds majority of the votes of
Members of Parliament.”
E. Constitution
of the Republic of Hungary (Amendment) Act (Act CLIX of 2011), which
entered into force on 2 December 2011
40. The Constitution of Hungary was
amended as follows, with regard to the election of the President of the Kúria:
Section 1
“The
Constitution shall be amended with the following section:
“Section 79.
In accordance with Article 26 § 3 of the Fundamental Law, Parliament shall
elect the President of the Kúria by 31 December 2011 at the latest.”
F. Transitional
Provisions of the Fundamental Law of Hungary, 31 December 2011
41. The Transitional
Provisions of the Fundamental Law of Hungary read, in so far as relevant, as
follows:
Section 11
“(1) The
legal successor of the Supreme Court, the National Council of Justice and their
President shall be the Kúria for the administration of justice, and the
President of the National Judicial Office for the administration of the courts,
with any exceptions defined by the relevant Cardinal Act.
(2) The
mandates of the President of the Supreme Court and the President and members of
the National Council of Justice shall be terminated when the Fundamental Law
comes into force.”[3]
Section 12
“(1) If a judge has reached the general
retirement age defined by Article 26 § 2 of the Fundamental Law before 1 January 2012, his
or her service shall be terminated on 30 June 2012. If a judge reaches the
general retirement age defined by Article 26 § 2 of the Fundamental Law in
the period between 1 January and 31 December 2012, his or her service
shall be terminated on 31 December 2012.”
Section 29
“(2) ... The Transitional Provisions
shall form part of the Fundamental Law.”
G. Organisation
and Administration of the Courts Act (Act CLXI of 2011)
42. The relevant parts of
the Organisation and Administration of the Courts Act read as follows:
Chapter VIII
President of the Kúria and court leaders
32. President of the Kúria
Section 114
“(1) The President of the Kúria shall be elected by
Parliament from among judges appointed for an indeterminate duration and with
at least 5 years of judicial service in accordance with Article 26 § 3 of the
Fundamental Law.”
Chapter XV
Transitional Provisions
58. Election of the
President of the NJO and the President of the Kúria for the First Time
Section 177
“(1) The President of the Republic shall nominate the
President of the NJO and the President of the Kúria for the first time by 15
December 2011, at the latest. The nominees shall be heard by the committee of
Parliament responsible for justice.
(2) Parliament shall elect the President of the NJO and the
President of the Kúria for the first time by 31 December 2011....”
60.
Determination of Date of Expiry of Mandates and Beginning of New Mandates
Section 185
“(1) The
mandates of the National Council of Justice (hereinafter the NCJ) and its
members, its President as well as the President and the Vice-President of the
Supreme Court and the Head and Deputy Head of the Office of the NCJ shall be
terminated upon the entry into force of the Fundamental Law.
(2) The
mandates of the President of the National Judicial Office and the President of
the Kúria shall commence as of 1 January 2012. ...”
Section 187
“The mandates
of court executives appointed before 1 January 2012 shall be valid for the term
determined in their appointments, except as set forth in section 185(1).”
Section 188
“(1) The
legal successor of the Supreme Court, the National Council of Justice and its
President is the Kúria for the purposes of activities related to the
administration of justice, while in respect of the administration of courts,
the President of the National Judicial Office, except as determined in the
Cardinal Laws.”
43. Under section 173 of
the Act, section 177 entered into force on the day following its promulgation
(3 December 2011), and sections 185, 187 and 188 entered into force on 1
January 2012.
H. Legal
Status and Remuneration of Judges Act (Act CLXII of 2011), which entered into
force on 1 January 2012
44. The relevant parts of
the Legal Status and Remuneration of Judges Act provide as follows:
Section 90
“A judge shall be exempted [from judicial
service]:
...
(h) if the judge
(ha) has
reached the applicable retirement age (hereinafter referred to as the “upper
age limit”). This provision does not apply to the President of the Kúria ...”.
Section
227
“(1) The person who occupied the office of President of the
Supreme Court prior to the entry into force of the present Act shall be
governed by the provisions of Act XXXIX of 2000 on the remuneration and
benefits of the President of the Republic, the Prime Minister, the Speaker of
the House, the President of the Constitutional Court and the President of the
Supreme Court, inasmuch as he shall be entitled to the benefits under section
26(1) and section 22(1) of Act XXXIX of 2000 on the remuneration and benefits
of the President of the Republic, the Prime Minister, the Speaker of the House,
the President of the Constitutional Court and the President of the Supreme
Court if he had reached retirement age at the time of the entry into force of
the present Act and requested the benefits.”
Section 230
“(1) The
provisions of the present Act shall govern judges reaching the upper age limit
before 1 January 2013, subject to the differences set forth in subsections (2)
and (3).
(2) If a judge has reached the upper age limit before 1
January 2012, the initial date of the exemption period is 1 January 2012, while
the closing date is 30 June 2012, and his judicial mandate shall cease as of 30
June 2012. The proposal concerning exemption shall be made at a time which
permits the adoption of the decision on exemption on 30 June 2012, at the
latest.
(3) If the judge reaches the upper age limit between 1
January 2012 and 31 December 2012, the initial date of the exemption
period is 1 July 2012, while the closing date is 31 December 2012, and his
judicial mandate shall cease as of 31 December 2012. The proposal
concerning exemption shall be made at a time which permits the adoption of the
decision on exemption on 31 December 2012, at the latest.”
I. Constitutional Court’s judgment no. 33/2012 of 16 July
2012
45. In its judgment of 16
July 2012, the Constitutional Court declared unconstitutional and, therefore, annulled
the provisions on the compulsory retirement age of judges (sections 90(ha) and
230 of the 2011 Act) as of 1 January 2012 (the date of entry into force of
the Legal Status and Remuneration of Judges Act). The Constitutional Court held
that the new regulation violated the constitutional requirements for judicial
independence on both “formal” and “substantive” grounds. From the formal point of view, a Cardinal Act must determine the length
of judicial service and the retirement age in order to guarantee the
irremovability of judges. Reference to the “general retirement age” in an
ordinary Act does not fulfil that requirement. As regards the substantive
unconstitutionality of the provision, the new regulation resulted in the
removal of judges within a short period of three months. Notwithstanding the
relative freedom of the legislator to determine the maximum age of judges, and
the fact that a certain age cannot be deduced from the Fundamental Law, the
Constitutional Court held that the introduction of a lowered retirement age for
judges must be made gradually, with an appropriate transition period and
without violating the principle of the irremovability of judges. The greater
the difference between the new retirement age and seventy years of age, the longer
the transitional period required for introducing a lower retirement age.
Otherwise, the irremovability of judges, which constitutes an essential element
of independence of the judiciary, is violated.
J. Constitutional Court’s decision
no. IV/2309/2012 of 19 March 2013
46. The
Vice-President of the Supreme Court, appointed by the President of the Republic
following the applicant’s proposal as of 15 November 2009, for six years,
was also removed from his executive position as of 1 January 2012 by virtue of
section 185(1) of the Organisation and Administration of the Courts Act (Act
CLXI of 2011), which stated that the mandate of the Vice-President of the
Supreme Court must be terminated when the Fundamental Law enters into force.
The former Vice-President submitted a constitutional complaint to the
Constitutional Court claiming that the termination of his position violated the
rule of law, the prohibition of retroactive legislation and his right to a
remedy. In its decision no. IV/2309/2012, passed by eight votes to seven,
the Constitutional Court rejected the complaint. It stated that the premature
termination of the claimant’s term of office as Vice-President of the Supreme
Court had not violated the Fundamental Law, since it was sufficiently justified
by the full-scale reorganisation of the judicial system and the important
changes in the tasks and competences of the President of the Kúria. It noted
that the Kúria’s tasks and competences had been broadened, in particular with
regard to the supervision of the legality of municipal council regulations.
Seven judges dissented and considered that changes with regard to the judicial
system or the new Kúria had not fundamentally affected the status of the
Vice-President. The dissenting judges concluded that the premature termination
of the claimant’s term of office had weakened the guarantees for the separation
of powers, had been contrary to the prohibition of retroactive law-making and
had breached the principle of the rule of law and the right to a remedy.
III. COUNCIL
OF EUROPE MATERIAL
A. Opinions
of the Venice Commission
47. The relevant extracts
from the Opinion on the Fundamental Law of Hungary adopted by the Venice
Commission at its 87th Plenary Session (Venice, 17-18 June 2011,
CDL-AD(2011)016), read as follows:
“107. According
to Article 25 (1) of the new Constitution, the ‘Curia’ (the Hungarian
historical name for the Supreme Court), will be the highest justice authority
of Hungary. In the absence of transitional provisions and despite the fact that
the election rules for its president remain unchanged in the new Constitution a
question arises: will this change of the judicial body’s name result in replacement
of the Supreme Court’s president by a new president of the ‘Curia’? As to the
judges, they ‘shall be appointed by the President of the Republic as defined by
a cardinal Act.’ (Article 26 (2)). This also leaves of margin of interpretation
as to the need to change (or not) the composition of the supreme body.
108. As
stipulated by Article 26 (2), the general retirement age will also be applied
to judges. While it understands that the lowering of the judge’s retirement age
(from 70 to 62) is part of the envisaged reform of the judicial system, the
Commission finds this measure questionable in the light of the core principles
and rules pertaining to the independence, the status and immovability of judges
. According to different sources, this provision entails that around 300 of the
most experienced judges will be obliged to retire within a year.
Correspondingly, around 300 vacancies will need to be filled. This may
undermine the operational capacity of the courts and affect continuity and
legal security and might also open the way for undue influence on the
composition of the judiciary. In the absence of sufficiently clear information
on the reasons having led to this decision, the Commission trusts that adequate
solutions will be found, in the context of the reform, to address, in line with
the requirements of the rule of law, the difficulties and challenges engendered
by this measure. ...
140. As
previously indicated, the reference in the second paragraph of the Closing
Provisions to the 1949 Constitution seems to be in contradiction with the
statement, in the Preamble, by which the Hungarian 1949 Constitution is
declared as invalid. The Venice Commission tends to interpret this apparent
inconsistency as a confirmation of the fact that the said statement does not
have legal significance. Nevertheless, it is recommended that this is
specifically clarified by the Hungarian authorities. The adoption of
transitional provisions (as required by the third paragraph of the Closing
Provisions), of particular importance in the light of the existence, for
certain provisions of the new Constitution, of possibly diverging
interpretations, could be used as an excellent opportunity for providing the
necessary clarifications. This should not be used as a means to put an end to
the term of office of persons elected or appointed under the previous
Constitution.”
48. In the Position of the
Government of Hungary on this Opinion, transmitted by the Minister for Foreign
Affairs of Hungary on 6 July 2011 (see CDL(2011)058), the Government fully
subscribed to the suggestion in paragraph 140 of the Opinion and assured the
Venice Commission that the drafting of the transitional provisions of the
Fundamental Law would not be used to unduly put an end to the terms of office
of persons elected under the previous legal regime.
49. The relevant extracts
from the Opinion on the Legal Status and Remuneration of Judges Act (Act CLXII
of 2011) and the Organisation and Administration of the Courts Act (Act CLXI of
2011), adopted by the Venice Commission at its 90th Plenary Session
(Venice, 16-17 March 2012, CDL-AD(2012)001), read as follows:
“2. The President of the Curia
111. In
its opinion on the new Constitution, the Venice Commission appealed to the
Hungarian authorities that the occasion of adopting transitional provisions
‘should not be used as a means to put an end to the term of office of persons
elected or appointed under the previous Constitution’. In its reply to the
Venice Commission, the Hungarian Government pointed out that ‘Hungary fully
subscribes to this suggestion and assures the Commission that the drafting of
transitional provisions will not be used to unduly put an end to the terms of
office of persons elected under the previous legal regime.’
112. Article
25 of the Fundamental Law provides that the supreme judicial body shall be the
Curia. According to Art. 11 of the Temporary Provisions of the Fundamental Law,
the Curia is the heir (legal successor) to the Supreme Court. All judges of the
Supreme Court remained in office as judges with the exception of its President.
Section 114 AOAC established a new criterion for the election of the new
President, which leads to the ineligibility of the former President of the
Supreme Court as President of the Curia. This criterion refers to the time
served as a judge in Hungary, not counting the time served as a judge for
instance in a European Court. Many believe that the new criterion was aimed at
preventing an individual person – the actual president of the Supreme Court -
from being eligible for the post of the President of the Curia. Although the
Law was formulated in a general way, its effect was directed against a specific
person. Laws of this type are contrary to the rule of law.
113. Other
countries have rules that accept time periods that judges have spent abroad.
Section 28.3 ALSRJ states that a judge’s long-term secondment abroad shall be
regarded as time completed at the service post occupied prior to the
commencement of his or her time abroad. The Law does not provide for a minimum
time a judge must have spent in Hungary before being posted abroad. Therefore,
regulations of equivalence between national and international functions should
be established, particularly with regard to requirements that a person has to
fulfil in order to be appointed e.g. President of the Curia. Furthermore, it is
highly uncommon to enact regulations that are retroactive and lead to the
removal from a high function such as the President of the Curia.
114. The
unequal treatment between the judges of the Supreme Court and their President
is difficult to justify. The Hungarian authorities seem to argue that the
nature of the tasks of the President of the Curia and of the Supreme Court are
radically different, and that the latter would be more engaged in
administrative matters as the President of the previous National Council of the
Judiciary, whereas the President of the Curia would deal more with substantive
law and ensure the uniformity of the case-law. However, this argument is not
convincing. The experience of the European Court of Human Rights could be
particularly useful for the tasks of the President of the Curia.
115. Since
the provision of the Fundamental Law concerning the eligibility to become President
of the Curia might be understood as an attempt to get rid of a specific person
who would be a candidate for the President, who has served as president of the
predecessor of the Curia, the law can operate as a kind of a sanction of the
former president of the Supreme Court. Even if this is not the case, the
impression, that this might be the case, bears the risk of causing a chilling
effect, thus threatening the independence of the judiciary.”
50. The relevant extracts
from the Opinion on the Cardinal Acts on the Judiciary that were amended
following the adoption of Opinion CDL‑AD(2012)001 on Hungary, adopted by
the Venice Commission at its 92nd Plenary Session (Venice, 12-13
October 2012, CDL-AD(2012)020), read as follows :
“XII. Transitional issues - Retirement of judges and President of the
Curia
74. The amendments to the ALSRJ (Act CLXII of 2011 on the
Legal Status and Remuneration of Judges) did not pertain to the criticisms
expressed in the Opinion of the Venice Commission on the provisions on the
retirement age. All those judges who would have reached the age limit by 31
December 2012 at the latest were released by presidential order of 7 July 2012.
75. The Venice Commission acknowledges the judgment no.
33/2012 (VII. 17) AB határozat of 16 July 2012 of the Hungarian Constitutional
Court, which declared the sudden reduction of the upper-age limit for judges
unconstitutional. It trusts that the Hungarian authorities will respect this
judgment and ensure its implementation, i.e. re-instate the former judges to
their previous positions. It seems that the labour courts have started to
reinstate the retired judges. The Venice Commission’s delegation has however
learned that the implementation of this judgment has resulted in considerable
legal uncertainty. While the legal basis of early retirement was annulled with ex
tunc effect, the individual resolutions of the President of Hungary, which
dismissed some ten per cent of the Hungarian judges, are considered to remain
in force, even if their legal basis had ceased to exist. The President of
Hungary did not repeal them. The Legislator should adopt provisions
re-instating the dismissed judges in their previous position without requiring
them to go through a re-appointment procedure.
76. The President of the NJO invited the judges concerned to
appeal to the labour courts in order to have their dismissal reversed. Several
judges already won their cases before the labour courts, but these judgments
were appealed against by the President of the NJO because she disagreed with
their reasoning. Most importantly, even final judgments of the labour courts
would not result in a reinstatement of the judges concerned in their previous
position, but they will go through a new appointment process and could be
assigned to other courts than those, which they belonged to before their
dismissal.
77. In September 2012, the Hungarian Government introduced
the legislative proposal T/8289, which would amend the Transitory Provisions of
the Fundamental Law, introducing a new retirement age of 65 years for judges
and prosecutors. Judges who are older than 65 would (after their
re-appointment) be able to continue in office for one year before they would
have to retire. The legislative proposal remains however silent on how the
dismissed judges should be reinstated, leaving open only the way through the
labour courts.
78. The Commission’s delegation was told that automatic
reinstatement would be impossible because new judges had been appointed in the
meantime and not all judges wished to be reinstated. The Commission is of the
opinion that it should be possible to find a legislative solution that takes
into account the various cases.
79. Furthermore, the legislative proposal provides that
judges who are over the age of 62 cannot have leading positions in the courts.
This concerns reinstated judges but in the future also all other judges who
turn 63. They would lose their leading position and would have to terminate
their career as an ordinary judge. Apart from the fact that these judges are
the most experienced to lead the courts, such a limitation constitutes evident
age discrimination. The delegation was told that these experienced judges
should train younger judges rather than hold leading positions in courts. This
argument is hard to follow because younger judges learn from older ones
precisely when they see how they act in leading positions.
80. The situation of the dismissed judges is very
unsatisfactory. The Legislator should adopt provisions re-instating dismissed
judges who so wish in their previous position without requiring them to go
through a re-appointment procedure.
81. The Hungarian Legislator did not address the remarks on
the eligibility to become President of the Curia, which should be revised.”
B. Press
Release of the Council of Europe Commissioner for Human Rights
51. The relevant extracts
from the press release published on 12 January 2012 by the Council of
Europe Commissioner for Human Rights read as follows:
“Furthermore,
the Commissioner has noted steps taken in Hungary which might undermine the
independence of the judiciary. As a consequence of the lowering of the
retirement age for judges, more than 200 new judges will now have to be
appointed. This measure has been accompanied by a change in the procedure for
such appointments, which now rests on the decision of a single politically
appointed individual. Moreover, the Commissioner considers it unfortunate that,
as a consequence of the new law on the judiciary, the mandate of the President
of the Supreme Court has been terminated before the end of the regular term.
The approach whereby judges are appointed by the President of the National
Judicial Office, who is nominated by the government for nine years, gives rise
to serious reservations. The judiciary must be protected from undue political
interference.”
C. The
Parliamentary Assembly
52. On 25 April 2013 the
Committee on the Honouring of Obligations and Commitments by the Member States
of the Parliamentary Assembly adopted Opinion AS/Mon(2013)08 and recommended
that the Assembly open a monitoring procedure in respect of Hungary because of
the serious and sustained concerns about the extent to which the country was
complying with its obligations to uphold the highest possible standards on
democracy, human rights and the rule of law. The relevant extracts of the
Opinion concerning the case of the applicant read as follows:
“4.3.3. The
dismissal of the President of the Supreme Court
113. The Curia
that was established by the Fundamental Law is the legal successor to the
Supreme Court of Hungary. The Cardinal Act on the Judiciary therefore provides
that all judges of the Supreme Court can serve until the end of their mandate.
However, an exception was made for the President of the Supreme Court, who
needed to be re-elected. In addition, a new election criterion for the
President of the Supreme Court was adopted. According to this new criterion, a
candidate must have at least five years’ experience as a judge in Hungary. Time
served on international tribunals is not taken into account.
114. The
unequal treatment of the President of the Supreme Court is highly questionable.
These new provisions are widely seen as being solely adopted to dismiss the
sitting President of the Supreme Court, Mr Baka, who in the past had been
critical of the government’s policies of judicial reform and who had
successfully challenged a number of government decisions and laws before the
Constitutional Court. Mr Baka was the
Hungarian Judge to the European Court of Human Rights from 1991 to 2007, and
was elected President of the Supreme Court by the Hungarian parliament in
June 2009. Mr Baka had not previously served a five year term as a judge
in Hungary, and was therefore, despite his 17 years of experience as a judge on
the ECHR, ineligible for the post of President of the Curia. The widespread
perception that these legal provisions were adopted against a specific person
is strengthened by the fact that in June 2011 the parliament adopted a decision
that suspended all appointment procedures for judges until 1 January 2012, when
Mr Baka would no longer be in office. This despite the backlog in cases that is
often mentioned by the authorities as one of the underlying reasons for the
reform of the judiciary. As mentioned by the Venice Commission, generally
formulated legal provisions that are in reality directed against a specific
person or persons are contrary to the rule of law. In addition the politically
motivated dismissal of the President of a Supreme Court could have a chilling
effect that could threaten the independence of the judiciary.”
53. On 25 June 2013, the
Parliamentary Assembly decided not to open a monitoring procedure in respect of
Hungary, but resolved to follow the situation in the country closely. The
Parliamentary Assembly called on the Hungarian authorities to continue their
open and constructive dialogue with the Venice Commission (Resolution
1941(2013)).
D. European
Charter on the Statute for Judges of 8-10 July 1998
54. The relevant extracts
from the Charter read as follows:
“1.3. In
respect of every decision affecting the selection, recruitment, appointment, career
progress or termination of office of a judge, the statute envisages the
intervention of an authority independent of the executive and legislative
powers within which at least one half of those who sit are judges elected by
their peers following methods guaranteeing the widest representation of the
judiciary. ...
5.1. The
dereliction by a judge of one of the duties expressly defined by the statute,
may only give rise to a sanction upon the decision, following the proposal, the
recommendation, or with the agreement of a tribunal or authority composed at
least as to one half of elected judges, within the framework of proceedings of
a character involving the full hearing of the parties, in which the judge
proceeded against must be entitled to representation. The scale of sanctions
which may be imposed is set out in the statute, and their imposition is subject
to the principle of proportionality. The decision of an executive authority, of
a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is
open to an appeal to a higher judicial authority. ...
7.1. A
judge permanently ceases to exercise office through resignation, medical
certification of physical unfitness, reaching the age limit, the expiry of a
fixed legal term, or dismissal pronounced within the framework of a procedure
such as envisaged at paragraph 5.1 hereof.
7.2. The
occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than
reaching the age limit or the expiry of a fixed term of office, must be
verified by the authority referred to at paragraph 1.3 hereof.”
E. Recommendation
CM/Rec(2010)12 of the Committee of Ministers to member states on judges:
independence, efficiency and responsibilities
55. The relevant extracts
from the appendix to this recommendation read as follows:
“Tenure and irremovability
49. Security
of tenure and irremovability are key elements of the independence of judges.
Accordingly, judges should have guaranteed tenure until a mandatory retirement
age, where such exists.
50. The
terms of office of judges should be established by law. A permanent appointment
should only be terminated in cases of serious breaches of disciplinary or
criminal provisions established by law, or where the judge can no longer
perform judicial functions. Early retirement should be possible only at the
request of the judge concerned or on medical grounds. ...
52. A
judge should not receive a new appointment or be moved to another judicial
office without consenting to it, except in cases of disciplinary sanctions or
reform of the organisation of the judicial system.”
IV. THE
EUROPEAN PARLIAMENT
56. The European
Parliament, in its resolution of 16 February 2012 on the recent political
developments in Hungary (2012/2511(RSP)), expressed serious concern at the
situation in Hungary in relation, among other things, to the exercise of
democracy, the rule of law, respect for and protection of human and social
rights, and the system of checks and balances. It explained that under the
Fundamental Law and its Transitional Provisions, the Supreme Court had been
renamed the Kúria, and the six-year mandate of the former President of the
Supreme Court had ended prematurely after two years. The European
Parliament called on the European Commission to monitor closely the possible
amendments and the implementation of the criticised laws and their compliance
with European treaties, and to conduct a thorough study to ensure
“the full
independence of the judiciary, in particular ensuring that the National
Judicial Authority, the Prosecutor’s Office and the courts in general are
governed free from political influence, and that the mandate of
independently-appointed judges cannot be arbitrarily shortened.”
V. OTHER
INTERNATIONAL TEXTS ON THE INDEPENDENCE OF THE JUDICIARY
57. The Basic Principles on
the Independence of the Judiciary were adopted by the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, held in
Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of
29 November 1985 and 40/146 of 13 December 1985. The relevant points
read as follows:
“12. Judges,
whether appointed or elected, shall have guaranteed tenure until a mandatory
retirement age or the expiry of their term of office, where such exists. ...
18. Judges
shall be subject to suspension or removal only for reasons of incapacity or
behaviour that renders them unfit to discharge their duties. ...
20. Decisions in disciplinary, suspension or removal proceedings should
be subject to an independent review. This principle may not apply to the
decisions of the highest court and those of the legislature in impeachment or
similar proceedings. ...”
58. In its General Comment
no. 32 on Article 14 of the International Covenant on
Civil and Political Rights (Right to equality before courts and
tribunals and to a fair trial) published on 23 August 2007, the
United Nations Human Rights Committee stated:
“The
requirement of competence, independence and impartiality of a tribunal in the
sense of article 14, paragraph 1, is an absolute right that is not subject to
any exception. The requirement of independence refers, in particular, to the procedure
and qualifications for the appointment of judges, and guarantees relating to
their security of tenure until a mandatory retirement age or the expiry of
their term of office, where such exist, the conditions governing promotion,
transfer, suspension and cessation of their functions, and the actual
independence of the judiciary from political interference by the executive
branch and legislature. States should take specific measures guaranteeing the
independence of the judiciary, protecting judges from any form of political
influence in their decision-making through the constitution or adoption of laws
establishing clear procedures and objective criteria for the appointment,
remuneration, tenure, promotion, suspension and dismissal of the members of the
judiciary and disciplinary sanctions taken against them. A situation where the
functions and competencies of the judiciary and the executive are not clearly
distinguishable or where the latter is able to control or direct the former is
incompatible with the notion of an independent tribunal. It is necessary to
protect judges against conflicts of interest and intimidation. In order to
safeguard their independence, the status of judges, including their term of
office, their independence, security, adequate remuneration, conditions of
service, pensions and the age of retirement shall be adequately secured by law.
Judges may be dismissed only on serious grounds of misconduct or incompetence,
in accordance with fair procedures ensuring objectivity and impartiality set
out in the constitution or the law. The dismissal of judges by the executive,
e.g. before the expiry of the term for which they have been appointed, without
any specific reasons given to them and without effective judicial protection
being available to contest the dismissal is incompatible with the independence
of the judiciary. The same is true, for instance, for the dismissal by the
executive of judges alleged to be corrupt, without following any of the
procedures provided for by the law.”
59. The Inter-American
Court of Human Rights, in its case-law concerning the independence of the
judiciary, has referred to the UN Basic Principles on the Independence of the
Judiciary and to the General Comment No. 32 of the Human Rights Committee. In
its case of The Constitutional Court
(Camba Campos and Others) v. Ecuador, judgment of 28 August 2013, paragraph
199, the Inter-American Court established that the independence of the
judiciary covers the subjective right of the judge not to be removed from
office except in the cases provided for by law, either through a fair procedure
ensuring judicial guarantees or where his/her term of office has expired. When
the right of the judge to remain in office is arbitrarily affected, the Inter-American
Court finds a violation of the right to judicial independence guaranteed by
Article 8.1 of the American Convention on Human Rights, in conjunction with the
right to have access and remain in the exercise of public service, under
general conditions of equality, protected by Article 23.1.c of the American
Convention.
60. The Universal Charter
of the Judge was approved by the International Association of Judges on 17
November 1999. Its Article 8 reads as follows:
“Art.8 Security of office
A judge cannot
be transferred, suspended or removed from office unless it is provided for by
law and then only by decision in the proper disciplinary procedure.
A judge must
be appointed for life or for such other period and conditions, that the
judicial independence is not endangered.
Any change to
the judicial obligatory retirement age must not have retroactive effect.”
61. The Mt. Scopus Revised
International Standards of Judicial Independence were approved on 19 March 2008
by the International Association of Judicial Independence and World Peace
International Project of judicial independence. Their relevant part reads as
follows:
“3.2.
Legislation introducing changes in the terms and conditions of judicial service
shall not be applied to judges holding office at the time of passing the
legislation unless the changes improve the terms of service and are generally
applied.
3.3. In case
of legislation reorganising or abolishing courts, judges serving in these
courts shall not be affected, except for
their transfer to another court of the same or materially comparable status.”
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
62. The applicant
complained that he had been denied access to a tribunal
to defend his rights relating to his premature dismissal as President of the
Supreme Court. He contended that his dismissal was the result of legislation at
constitutional level, thereby depriving him of any possibility of seeking
judicial review, even by the Constitutional Court. Article 6 § 1 of the
Convention provides, in so far as relevant, as follows:
“In the
determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
A. The
parties’ submissions
1. The
Government
63. The Government argued
that Article 6 was not applicable in the present case and that therefore the
applicant’s complaint was incompatible ratione
materiae with the provisions of the Convention. They maintained that the
two cumulative conditions of the Eskelinen
test (see Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II) had been met, rendering
Article 6 inapplicable to the applicant’s dispute. First, as the applicant had
admitted, access to a court in order to appeal against the termination of his
mandate as President of the Supreme Court had been excluded by the very nature
of the act complained of. Therefore the Government were of the opinion that the
first condition of the Eskelinen test
had been fulfilled. In this regard, they noted that other cases in which the
Court had considered Article 6 applicable to civil servants’ disputes did not concern
the right of access to a court as such, but rather the question of whether the
procedural guarantees of Article 6 § 1 had been complied with. Secondly, as
regards the second condition of the Eskelinen
test, they submitted that the applicant’s post as
President of the Supreme Court had involved, by its very nature, the exercise
of powers conferred by public law and duties designed to safeguard the general
interests of the State (the Government referred to Harabin v. Slovakia (dec.), no. 62584/00, 9 July 2002).
The exclusion of access to a court in respect of the termination of that post
had therefore been justified on objective grounds in the State’s interest.
2. The applicant
64. The
applicant contended that none of the conditions of the Eskelinen test had been met in order to render Article 6
inapplicable in his case. As regards the first condition, an implied bar was
not enough; the national law must expressly exclude access to court for a
certain post or category of staff, and that exclusion must be of an abstract
nature, that is, it must concern all office-holders and not a specified person.
Hungarian law, rather than excluding access to a court, expressly ensured that
a court executive had the right of access to a court in the event of his or her
dismissal, in accordance with the general rules applicable to all court
executives, including the President of the Supreme Court (see paragraphs 34-36
above). The applicant had been de facto dismissed
from his position as court executive and should have had the right of access to
a court under the domestic law. However, he had had no opportunity to contest
that measure because the respondent State, by legislating for his personal
dismissal in the Fundamental Law, had effectively deprived him of his existing
right of access to a court. In the applicant’s view, the nature of the impugned
act could not be the ground for exclusion, as the Government had argued.
65. As
regards the second condition of the Eskelinen
test, the applicant argued that the Harabin
decision to which the Government had referred was irrelevant in the present
case, since it had been adopted before the Eskelinen
judgment. Only the post-Eskelinen case-law
should be taken into consideration in respect of judges’ employment disputes
(see Olujic v. Croatia, no.
22330/05, 5 February 2009, and Harabin v.
Slovakia, no. 58688/11, 20 November 2012). Therefore, the nature of the
applicant’s post as President of the Supreme Court did not justify, in itself,
the exclusion of access to a court in respect of his dismissal. Quite the
contrary, given the principle of judicial independence, it might be highly
advisable to provide for judicial review in order to safeguard the security of
tenure and the irremovability of the Chief Justice. Moreover, considering that
his dismissal had been the result of abusive legislation, the applicant
maintained that abusive resort to legislation could not be justified on
objective grounds in a democratic society governed by the rule of law.
B. The Court’s assessment
1. Admissibility
66. Before
the judgment in the Vilho Eskelinen case, the Court had
held that employment disputes between the authorities and public servants whose
duties typified the specific activities of the public service, in so far as the
latter was acting as the depositary of public authority responsible for
protecting the general interests of the State, were not “civil” and were
therefore excluded from the scope of Article 6 § 1 of the Convention (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999‑VIII). Likewise,
employment disputes involving posts in the judiciary were also excluded from
the scope of Article 6 § 1 because although the judiciary was not part of the
ordinary civil service, it was nonetheless considered part of typical public
service (see Pitkevich
v. Russia (dec.), no. 47936/99, 8 February
2001; as regards the president of a Supreme Court, see Harabin (dec.), cited above).
67. In
the Vilho Eskelinen case the Court
revisited the applicability of Article 6 § 1 and held that it was for the
Contracting States, in particular the competent national legislature, and not
the Court, to identify expressly those areas of public service involving the
exercise of the discretionary powers intrinsic to State sovereignty where the
interests of the individual must give way. If a domestic system barred access
to a court, the Court would verify that the dispute was indeed such as to
justify the application of the exception to the guarantees of Article 6. If it
did not, then there was no issue and Article 6 § 1 would apply (see Vilho Eskelinen and Others [GC], cited above,
§ 61).
68. According to that case-law, an applicant’s status as a civil servant can justify excluding
the protection embodied in Article 6 subject to two conditions. Firstly,
the State in its national law must have expressly excluded access to court for
the post or category of staff in question. Secondly, the exclusion must be
justified on objective grounds in the State’s interest (ibid., § 62). In order for the
exclusion to be justified, it is not enough for the State to establish that the
civil servant in question participates in the exercise of public power. The
State must also show that the subject matter of the dispute at issue is related
to the exercise of State power. Thus, there can in principle be no
justification for the exclusion from the guarantees of Article 6 of ordinary
employment disputes on the basis of the special nature of the relationship
between the particular civil servant and the State in question. There will, in
effect, be a presumption that Article 6 applies. It will be for the respondent
Government to demonstrate, firstly, that its national law has expressly
excluded access to court for the civil-servant applicant and, secondly, that
the exclusion of the rights under Article 6 for the civil servant is justified
(ibid. § 62).
69. Following
the Vilho Eskelinen case, the
Court has found Article 6 to be applicable to disputes concerning the payment
of judges’ salaries and other benefits (see Petrova and Chornobryvets v. Ukraine, nos. 6360/04
and 16820/04, § 15, 15 May 2008). It has also found it to be applicable to
disputes concerning judges’ appointment (see Juricic v. Croatia, no. 58222/09, §§ 53-57, 26 July 2011),
promotion (see Dzhidzheva-Trendafilova v.
Bulgaria (dec.), no. 12628/09, §§ 42-50, 9 October 2012), transfer (see Tosti v. Italy (dec.), no.
27791/06, 12 May 2009), disciplinary measures (see Harabin, cited above, §§ 122-23) and removal from office (see Olujić v. Croatia, cited above,
§§ 31-44, and G. v. Finland,
no. 33173/05, § 34, 27 January 2009) in cases where the domestic law
allowed access to a court to challenge the relevant decisions. In particular,
it has found Article 6 to be applicable under its civil head to disciplinary
proceedings against the president of a Supreme Court (see Harabin, cited above, §§ 122-23), including those leading to the
latter’s dismissal (see Olujic, cited
above, §§ 34-45; see also, for the dismissal of a judge of the Supreme Court, Oleksandr Volkov v. Ukraine, no.
21722/11, §§ 87-91, 9 January 2013).
70. The
Court has found Article 6 to be inapplicable to proceedings concerning
recruitment (see Apay v. Turkey (dec.), no. 3964/05,
11 December 2007) and disciplinary proceedings concerning the termination
of employment of public prosecutors (see Nazsiz v. Turkey (dec.), no.
22412/05, 26 May 2009), on the ground that the domestic law expressly excluded
the right of access to court and that this exclusion was objectively based on
the State’s interest.
71. Turning to the present
case, the Court notes that the criterion introduced in the Vilho Eskelinen and Others judgment in respect of its competence ratione materiae relates to and is
indistinguishable from the merits of the applicant’s complaint that he was
denied access to a tribunal competent to examine his grievances related to his
premature dismissal as President of the Supreme Court. Accordingly, the Court
holds that the issue of whether the Court is competent ratione materiae to examine the applicant’s complaint under Article
6 of the Convention should be joined to the merits (see, mutatis mutandis, Nedelcho Popov v. Bulgaria, no. 61360/00, §
32, 22 November 2007).
72. The Court finds that
this complaint is not manifestly ill-founded within the meaning of Article 35 §
3 (a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
73. The Court reiterates
that Article 6 § 1 of the Convention secures to everyone the right to have any claim
relating to his civil rights and obligations brought before a court or
tribunal. In this way it embodies the “right to a court”, of which the right of
access – that is, the right to institute proceedings before the courts in civil
matters – constitutes one aspect (see Golder
v. the United Kingdom, judgment of 21 February 1975, § 36, Series A
no. 18). However, the right of access to the courts is not absolute but may be
subject to limitations that do not restrict or reduce the access left to the
individual in such a way or to such an extent that the very essence of the
right is impaired. Furthermore, a limitation will not be compatible with
Article 6 § 1 if it does not pursue a legitimate aim and if there is not a
reasonable relationship of proportionality between the means employed and the
aim sought to be achieved (see Ashingdane
v. the United Kingdom, judgment of 28 May 1985, § 57, Series A no. 93, and Markovic and Others v. Italy [GC], no.
1398/03, § 99, ECHR 2006‑XIV).
74. In the present case,
the Court notes that under the Hungarian domestic system, judges of the Supreme
Court, including their president, were not expressly excluded from the right of
access to a court (see, conversely, Apay and Nazsiz, cited above). Domestic law expressly provided for
the right to a court in the event of dismissal of a court executive: the
dismissed court executive was entitled to contest his or her dismissal before
the Service Tribunal (section 74/A(2) of the Organisation and Administration of
the Courts Act (Act LXVI of 1997), see paragraph 36 above).
75. The Court observes that
the applicant’s access to a court was impeded, rather than by express
exclusion, by the fact that the impugned measure, namely the premature termination
of his mandate as President of the Supreme Court, had been written into the
Fundamental Law itself (section 11(2) of the Transitional Provisions of the
Fundamental Law of Hungary, see paragraph 41 above) and was therefore not
subject to any form of judicial review, including by the Constitutional Court.
Unlike the former Vice-President of the Supreme Court, who was able to file a
constitutional complaint with the Constitutional Court against the statutory
provision which terminated his term of office (see paragraph 46 above), the
termination of the applicant’s mandate as President of the Supreme Court was
provided for by the Fundamental Law and as such could not be challenged before
the Constitutional Court. In those circumstances, the nature of the impugned
measure itself rendered the applicant’s access to a court impossible in
practice. The Court reiterates that in order for the first condition of the Eskelinen test to be met, national law
must expressly exclude access to a court for the post or category of staff in
question.
76. In view of the above, the
Court considers that the Government have not demonstrated that the legal policy
choice of enacting the premature termination of the applicant’s mandate, as
President of the Supreme Court, into the Fundamental Law involved an express
identification by the Government, in particular the national legislature, of an
“[area] of public service involving the exercise of the discretionary powers
intrinsic to State sovereignty where the interests of the individual must give
way”, as elaborated in Vilho Eskelinen (see
§ 61). Therefore, it cannot be concluded that the national law “expressly
excluded access to a court” for the applicant’s claim. The first condition of
the Eskelinen test has not been met
and Article 6 applies under its civil head.
77. Furthermore, even
assuming that the national legislative framework specifically denied the
applicant the right of access to a court and that the first condition of the Eskelinen test was therefore met, as the
Government claimed, the Court considers that the applicant’s exclusion from the
right of access to a court was not justified. Relying on
the Court’s reasoning in its decision in the case of Harabin (cited above), the Government maintained that the
applicant’s post as President of the Supreme Court involved by its very nature
the exercise of powers conferred on him by public law and duties designed to
safeguard the general interests of the State. The Court reiterates that
according to the new approach adopted in Vilho
Eskelinen, the mere fact that the applicant is in a sector or department
which participates in the exercise of power conferred by public law is not in
itself decisive. In order for the
exclusion to be justified, it is for the State to show that the subject matter
of the dispute at issue is related to the exercise of State power or that it
has called into question the special bond of trust and loyalty between the
civil servant and the State (see Vilho
Eskelinen and Others, cited above, § 62). In the present case, the Government have not adduced any
arguments to show that the subject matter of the dispute, which related to the
premature termination of the applicant’s mandate as President of the Supreme Court,
was linked to the exercise of State power in such a way that the exclusion of
Article 6 guarantees was objectively justified. In this regard, the Court
considers it significant that the former Vice-President of the Supreme Court,
unlike the applicant, was able to challenge the premature termination of his
mandate before the Constitutional Court (see paragraph 46 above).
78. In these circumstances,
and in applying the Vilho Eskelinen criteria,
the Court finds that it is competent ratione
materiae to examine the present complaint and, furthermore, that there has
been a violation of the applicant’s right of access to a tribunal competent to
examine the premature termination of his mandate as President of the Supreme
Court, as guaranteed by Article 6 § 1 of the Convention.
79. The Court accordingly
dismisses the Government’s preliminary objection and finds that there has been
a violation of Article 6 § 1 of the Convention.
II. ALLEGED
VIOLATION OF ARTICLE 10 OF THE CONVENTION
80. The applicant
complained that he had been dismissed as a result of the
views he had expressed publicly in his capacity as President of the Supreme Court
and the National Council of Justice on four issues of fundamental importance
for the judiciary. He alleged that there had been a breach of Article 10 of the
Convention, which, in so far as relevant, provides:
“1. Everyone
has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers...
2. The
exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as
are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.”
A. The
parties’ submissions
1. The
applicant
81. The applicant contended
that he had been dismissed from his position as President of the Supreme Court
for expressing his views, in his professional capacity, on four issues of fundamental
importance for the judiciary (the Nullification Act, the retirement age of
judges, the amendments to the Code of Criminal Procedure and the new
legislation on the Organisation and Administration of the Courts). It was not
only his right to express his opinion, but also one of his duties as President
of the National Council of Justice. There was a causal relationship between the
expression of those views and his premature dismissal. According to the
applicant, his allegation was corroborated by the fact that the Government had
previously denied that the new regulation on the competences of the new Kúria
would necessitate the termination of the mandates of persons elected under the
previous Constitution (see Position CDL(2011)058 of the Government transmitted
to the Venice Commission on 6 July 2011, paragraph 48 above). The idea of the
applicant’s dismissal did not emerge until late November 2011, subsequent to
the criticisms expressed by him (including in his parliamentary speech of 3
November 2011). In order to show that his removal from office was the result of
the expression of his views, he referred to several statements in the Hungarian
and international press, as well as to reports by international organisations
(see the Opinions of the Monitoring Committee of the Parliamentary Assembly of
the Council of Europe, paragraph 52 above, and of the Venice Commission
(CDL-AD(2012)001, § 115), paragraph 49 above).
The applicant argued that the alleged link
between the changes affecting the Supreme Court and the termination of his
mandate had been created only as a subsequent pretext by the Government. In any
event, although the institution’s name had changed, both the function of the
new Kúria and the nature of the role of its president remained essentially the
same. The function for which the applicant had been elected had not ceased to
exist. In this regard, the applicant emphasised that in a democratic society
governed by the rule of law, no reconsideration, either by the legislature or
by the executive, of the suitability of any elected judicial official was
allowed before the expiry of the term of office of that official, without
prejudice to the statutory grounds for dismissal or revocation. In his case, it
had been proved beyond reasonable doubt by many sufficiently strong, clear and
concordant inferences that the premature termination of his mandate as
President of the Supreme Court amounted to an interference with his right to
freedom of speech.
82. The applicant further argued
that the interference with his freedom of expression was not “prescribed by
law”, as required by the second paragraph of Article 10. The impugned
legislative provisions removing him from office were aimed at him as an
individual. They were arbitrary, abusive, retroactive and incompatible with the
Convention requirements concerning the quality of law in a democratic society
governed by the rule of law. Moreover, the legislature had failed to
demonstrate the existence of a legitimate aim.
83. Lastly, the applicant
considered that the interference of which he was complaining could not be
regarded as “necessary in a democratic society”. In discharging his
constitutional duty as head of the judiciary, he had freely and legitimately
expressed his views on new legislation affecting the judiciary. As a result, he
had not only been dismissed from his position but all of the benefits and
allowances due to an outgoing president of the Supreme Court had also been
removed retroactively. Those disproportionate and punitive measures, with their
potential chilling effect, compromised the independence of the judiciary as a
whole.
2. The
Government
84. The Government
contended that there had been no interference with the applicant’s freedom of
expression, since the termination of his mandate as President of the Supreme
Court was not related to the opinions he had expressed. The fact that the
public expression of his opinions pre-dated the termination of his mandate was
not sufficient to prove that there was a causal link between them. The
applicant’s mandate had been terminated because of the fundamental changes in
the functions of the supreme judicial authority in Hungary, renamed as Kúria.
The function for which the applicant had been elected had ceased to exist upon
the entry into force of the Fundamental Law. His election and activities had
been mostly connected with the functions of the President of the National
Council of Justice, which had been separated from those of the President of the
new Kúria. In addition, the functions and competences of the Kúria itself had
also been changed and broadened. Therefore, the professional requirements
stemming from those new functions could not have been taken into account when
the applicant’s suitability for the post of President of the Supreme Court had
been considered. Relying on the Constitutional Court’s judgment of 19 March
2013 concerning the termination of the mandate of the Vice-President of the
Supreme Court, the Government were of the opinion that the major changes in the
functions of the President of the Supreme Court also justified reconsideration
of his suitability for the post of President of the new Kúria. Furthermore, the
requirement that the new President of the Kúria should have at least five
years’ judicial service guaranteed the influence of the judiciary in the
selection of candidates for that post. The post was now more judicial and less
managerial than that of the President of the Supreme Court. The Government
invited the Court to conclude that the applicant’s complaint under Article 10
was manifestly ill-founded.
B. Observations
of the third-party interveners
85. The
Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the
Eötvös Károly Institute observed that the present case was an outstanding
example of how violations of individual fundamental rights were intertwined
with processes threatening the rule of law. In their view, this case was part
of a general pattern of weakening of the system of checks and balances that had
taken place in the past three years in Hungary. They referred to other
legislative steps aimed at the early removal of individual State officials,
notably the Supreme Court’s Vice-President, whose constitutional complaint had
been examined by the Constitutional Court (see paragraph 46 above), but also
the Data Protection Commissioner and members of the National Election
Committee. They also referred to other examples of legislation targeting
individuals, retroactive legislation (see N.K.M. v. Hungary, no. 66529/11,
14 May 2013) and other legislative measures threatening the independence of the
judiciary (such as the right of the president of the National Judicial Office
to transfer cases). They maintained that this case should be examined in the
general context in Hungary and in the light of the importance of the rule of
law and the independence of the judiciary. The widespread use of legislation
targeting individuals could remove a wide range of significant issues from
judicial scrutiny. The Court should therefore delve “behind the appearances”
and examine the real purpose of such legislation and the effect it might have
on individuals’ Convention rights.
86. The Helsinki
Foundation for Human Rights of Poland considered that this case was of high
significance not only to Hungary but also in terms of constitutional relations
between legislative or executive authorities and the judiciary in general. They
referred to the principle of the irremovability of judges as one of the most
important guarantees of judicial independence (see paragraphs 55, 57 and 60
above), as well as to the principle of the separation of powers (see Sacilor-Lormines v. France, no.
65411/01, ECHR 2006‑XIII). They stressed that while legislative
authorities had the power to introduce reforms of the constitutional system of
justice, that power could not be regarded as unlimited. The reorganisation of
the courts system must not have a negative effect on judges currently holding
office (they cited the Mt. Scopus Revised International Standards of Judicial
Independence, see paragraph 61 above) and thus it should not be used as a tool
to remove a particular judge.
C. The Court’s assessment
1. Admissibility
87. The Court notes that
this complaint is not manifestly ill-founded within the meaning of Article 35 §
3 (a) of the Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
88. The
Court notes that the status which the applicant enjoyed as President of the Supreme Court
did not deprive him of the protection of Article 10 (see Harabin v. Slovakia, no. 58688/11, § 149,
20 November 2012). Moreover, having regard in particular to the
growing importance attached to the separation of powers (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99,
§ 193, ECHR 2003-VI, and Stafford v. the United Kingdom [GC],
no. 46295/99, § 78, ECHR 2002-IV) and the importance of safeguarding
the independence of the judiciary, any interference with the freedom of
expression of a judge in a position such as the applicant’s calls for close
scrutiny on the part of the Court (see Harabin (dec.), no.
62584/00, 29 June 2004). However, in order to determine whether this
provision was infringed, it must first be ascertained whether the disputed
measure amounted to an interference with the exercise of the applicant’s
freedom of expression – in the form of a “formality, condition, restriction or
penalty” – or whether it lay within the sphere of the right of access to or
employment in the civil service, a right not secured in the Convention. In
order to answer this question, the scope of the measure must be determined by
putting it in the context of the facts of the case and of the relevant
legislation (for recapitulation of the relevant case-law, see Wille v. Liechtenstein [GC], no. 28396/95, §§ 42-43, ECHR 1999‑VII; Harabin (dec.), cited above; Kayasu v. Turkey, nos. 64119/00 and 76292/01, §§ 77-79, 13 November 2008; Kudeshkina v. Russia, no. 29492/05, § 79, 26 February 2009; Poyraz v. Turkey, no. 15966/06, §§ 55-57, 7 December 2010; and Harabin v. Slovakia, cited above, §
149).
89. In the Wille case, the Court
found that a letter sent to the applicant (the President of the Liechtenstein
Administrative Court) by the Prince of Liechtenstein announcing his intention
not to reappoint him to a public post constituted a “reprimand for the previous
exercise by the applicant of his right to freedom of expression” (see Wille, cited above, § 50). The Court
observed that in that letter the Prince had criticised the content of the
applicant’s lecture and announced the intention to sanction him because he had
freely expressed his opinion on questions of constitutional law. The Court
therefore concluded that Article 10 was applicable and that there had been an
interference with the applicant’s right to freedom of expression. Similarly, in
Kudeshkina v. Russia (cited above), the Court observed that the decision to bar the applicant from holding judicial office had been prompted by her statements to the media.
Neither the applicant’s eligibility for public
service nor her professional ability to exercise judicial functions was part of
the arguments before the domestic authorities. Accordingly, the measure
complained of essentially related to freedom of expression, and not to the
holding of a public post in the administration of justice, the right to which
is not secured by the Convention.
90. On the contrary, in the Harabin case (see Harabin (dec.), cited in § 88 above), the Court considered
that the Government’s proposal (based on a report by the Minister of Justice)
to revoke the applicant’s appointment as President of the Supreme Court
essentially related to the applicant’s ability to exercise his functions, that
is, to the appraisal of his professional qualifications and personal qualities
in the context of his activities and attitudes relating to State administration
of the Supreme Court. In the Court’s view, the measure complained of lay, as
such, within the sphere of holding a public post related to State
administration of justice, a right not secured in the Convention. The documents
before the Court did not indicate that the proposal to remove the applicant
from office had been exclusively or preponderantly prompted by the views that
he had expressed on a draft amendment to the Constitution. The Court concluded
that there had been no interference with the exercise of the applicant’s right
to freedom of expression. Similarly, in the Harabin
judgment it was the applicant’s professional behaviour in the context of
the administration of justice which represented the essential aspect of the
case. The disciplinary proceedings related to the discharge by the applicant of
his duties as President of the Supreme Court, and therefore lay within the
sphere of his employment in the civil service. The disciplinary offence of
which the applicant was accused and found guilty did not involve any statements
or views expressed by him in the context of a public debate or in the media.
The Court also concluded that the disputed measure did not amount to an
interference with the exercise of the applicant’s right to freedom of
expression (see Harabin judgment,
cited above, §§ 150-53).
91. The Court considers
that the issue at the heart of the present case is whether the applicant’s
mandate as President of the Supreme Court was terminated solely as a result of
the reorganisation of the judiciary in Hungary, as the Government have claimed,
or whether, as the applicant has argued, as a consequence of the views he
expressed publicly on legislative reforms affecting the judiciary.
92. The Court notes at the
outset that in his capacity as President of the Supreme Court and the National
Council of Justice, the applicant expressed his views on different legislative
reforms affecting the judiciary between 12 February and 3 November 2011
(see paragraphs 11-16 above). He expressed his opinions through his spokesman,
through public letters or communiqués, including with other members of the
judiciary, by challenging legislation before the Constitutional Court, or by
directly addressing Parliament in a speech (3 November 2011). On
19 November 2011, a bill proposing an amendment to the 1949
Constitution was submitted to Parliament by a member of the governing party.
The amendment proposed that Parliament should elect the president of the new
Kúria by 31 December 2011 at the latest. On 20 November 2011, two leaders of
the political parties forming the parliamentary majority submitted to
Parliament a Bill on the Transitional Provisions of the Fundamental Law.
Pursuant to section 11(2) of the Bill, the mandate of the President of the
Supreme Court would be terminated upon the entry into force of the Fundamental
Law. That measure was also included in a proposal to amend the Organisation and
Administration of the Courts Bill (Bill T/4743), submitted by another member of
the governing party on 23 November 2011. On 28 November and 30 December 2011,
all those proposals were adopted and enacted. The effect was to terminate the
applicant’s term of office as President of the Supreme Court as of 1 January
2012, when the Fundamental Law entered into force and the new Kúria became the
legal successor of the Supreme Court.
93. The Court also notes
that on 9 November 2011, the Organisation and Administration of the Courts Bill
was amended and a new criterion was introduced as regards eligibility for the
post of President of the Kúria. This criterion related to the time served as a
judge in Hungary (at least five years); the time served as a judge in an
international court was not counted. The fact that the applicant did not meet
the new requirement led to his ineligibility for the post of President of the
new Kúria.
94. The Court observes that
the proposals to terminate the applicant’s mandate as President of the Supreme
Court as well as the new eligibility criterion for the post of President of the
Kúria were all submitted to Parliament after he had publicly expressed his
views on the legislative reforms at issue, and were adopted within an extremely
short time. In fact, in two interviews given on 14 April and 19 October 2011 –
that is, before those proposals were submitted to Parliament – two members of
the parliamentary majority, one of whom was State Secretary of Justice, had
declared that the President of the Supreme Court would continue as President of
the Kúria. The Court further notes that on 6 July 2011, the Government of
Hungary assured the Venice Commission that the drafting of the transitional
provisions of the Fundamental Law would not be used to unduly put an end to the
terms of office of persons elected under the previous legal regime.
95. The Court is not
convinced by the Government’s arguments that the impugned measure was a
necessary consequence of the fundamental changes in the functions of the
supreme judicial authority in Hungary and its president. The fact that the
functions of the President of the National Council of Justice were separated
from those of the President of the new Kúria is not sufficient in itself to
conclude that the functions for which the applicant had been elected ceased to
exist on the entry into force of the Fundamental Law, as the Government have
argued. Furthermore, neither the applicant’s ability to exercise his functions as
president of the highest court in Hungary, nor his professional behaviour were
called into question before the domestic authorities (see, conversely, Harabin (judgment), cited above, §
151; and Harabin (dec.), cited
above).
96. The Court considers
that the above facts and the sequence of events in their entirety corroborate
the applicant’s version of events, namely that the early termination of his
mandate as President of the Supreme Court was not the result of a justified
restructuring of the supreme judicial authority in Hungary, but in fact was set
up on account of the views and criticisms that he had publicly expressed in his
professional capacity on the legislative reforms concerned.
97. In view of the above,
the Court concludes that the early termination of the applicant’s mandate as
President of the Supreme Court was a reaction against his criticisms and
publicly expressed views on judicial reforms and thereby constituted
an interference with the exercise of his right to freedom of expression, as
guaranteed by Article 10 of the Convention. The Court will therefore examine
whether it was justified under paragraph 2 of Article 10 of the
Convention.
98. The
Court notes that the applicant contested that the interference with his freedom
of expression was “prescribed by law” or pursued a legitimate aim. However,
even if such interference were “prescribed by law” and in pursuit of legitimate
aims so as to satisfy the requirements of Article 10 § 2 of the Convention in
that respect, the Court considers that it was not “necessary in a democratic
society”, for the following reasons.
99. The
Court attaches particular importance to the office held by the applicant, the
statements or views that he expressed publicly, the context in which they were
made and the reaction thereto. In his professional capacity as President of the
Supreme Court and of the National Council of Justice, the applicant expressed
his opinion on four legislative reforms affecting the judiciary. The reforms
concerned issues related to the functioning and reform of the judicial system,
the independence and irremovability of judges and the retirement age of judges.
The Court reiterates that issues concerning the functioning of the justice
system constitute questions of public interest, the debate of which enjoys the
protection of Article 10 (see Kudeshkina,
cited above, § 86). Even if an issue under debate has political
implications, this is not in itself sufficient to prevent a judge from making a
statement on the matter (see Wille, cited above, § 67).
100. The
Court notes that it was not only the applicant’s right but also his duty as
President of the National Council of Justice to express his opinion on
legislative reforms affecting the judiciary, after having gathered and
summarised the opinions of different courts. The applicant also used his
prerogative to challenge some of the legislation concerned before the
Constitutional Court and the possibility to express his opinion directly before
Parliament during the relevant parliamentary debate. There is no evidence to
conclude that the views expressed by the applicant went beyond mere criticism
from a strictly professional perspective, or that they contained gratuitous
personal attacks or insults.
101. As
regards the proportionality of the interference, the Court notes that the
applicant’s term of office as President of the Supreme Court was terminated three
and a half years before the end of the fixed term applicable under the
legislation in force at the time of his election. Furthermore, although the
applicant remained in office as a judge of the new Kúria, the premature
termination of his mandate as President of the Supreme Court had pecuniary
consequences, namely the loss of the remuneration and other benefits applicable
to that post for the rest of his presidential term. The Court reiterates that
the fear of sanction has a “chilling effect” on the exercise of freedom of
expression and in particular risks discouraging judges from making critical
remarks about public institutions or policies, for fear of losing their
judicial office (see, mutatis mutandis, Wille, cited above, §
50, and Kudeshkina, cited above,
§§ 98-100). This effect, which works to the detriment of society as a whole, is
also a factor that concerns the proportionality of, and thus the justification
for, the sanction imposed on the applicant.
102. The
Court reiterates that the fairness of proceedings and the procedural guarantees
afforded (see, mutatis mutandis, Steel and Morris v. the
United Kingdom, no. 68416/01, § 95, ECHR 2005‑II, § 95,
and Kudeshkina, cited above, § 83)
are factors to be taken into account when assessing the proportionality of an
interference with the freedom of expression guaranteed by Article 10. The
absence of an effective judicial review of the impugned measure may also lead
to the violation of Article 10 (see Saygılı and Seyman v. Turkey, no. 51041/99,
§§ 24-25, 27 June 2006, and Lombardi
Vallauri v. Italy, no. 39128/05, §§ 45-56, 20 October 2009). In the
instant case, in the light of the considerations that led it to find a
violation of Article 6 of the Convention, the Court considers that the impugned
measure was not subject to effective judicial review by the domestic courts.
103. Having
regard to the foregoing considerations, the Court finds that the interference
with the applicant’s right to freedom of expression was not necessary in a
democratic society. Accordingly, there has been a violation of Article 10 of
the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
104. The
applicant further complained that his premature dismissal from his position had
unjustifiably deprived him of the peaceful enjoyment of his possessions,
namely: (a) the vested benefits that would have been due to him during his term
of office, and (b) the post-term benefits as an outgoing president of the
Supreme Court. He complained that the post-term benefits had been abrogated by
customised and retroactive legislative measures. He relied on Article 1 of
Protocol No. 1. In his observations, the applicant submitted that if the Court
would not allow full compensation for those claims as damage inextricably
linked to the violation of Article 10, he would maintain his position as to the
need for separate scrutiny under this provision. Article 1 of Protocol No. 1
reads, in its relevant part, as follows:
“Every natural
or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and
subject to the conditions provided for by law and by the general principles of
international law.
The preceding
provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
105. The Court reiterates
that future income cannot be considered to constitute
“possessions” unless it has already been earned or is definitely payable (see Erkan v. Turkey (dec.), no. 29840/03, 24
March 2005 and Anheuser-Busch Inc. v.
Portugal [GC], no. 73049/01, § 64, ECHR 2007‑I). There is no
right under the Convention to continue to be paid a salary of a particular
amount (see Vilho
Eskelinen and Others [GC], cited above, § 94). The dismissal of
the applicant from the post of President of the Supreme Court indeed precluded
him from receiving a further salary in that post. Furthermore, the new
legislation passed in 2011 prevented him from enjoying the special post-retirement
benefits as a former President of the Supreme Court. However, that income had
not been actually earned. Nor can it be argued that it was definitely payable
(see Volkov v. Ukraine (dec.), no.
21722/11, 18 October 2011; see conversely,
N.K.M. v. Hungary, no. 66529/11, 14 May 2013).
106. It follows that this complaint is
incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 § 3 (a) and must be
rejected in accordance with Article 35 § 4.
IV. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
107. The
applicant complained, under Article 13 taken in conjunction with Article 10 of
the Convention and Article 1 of Protocol No. 1, that he had been deprived of an
effective domestic remedy in relation to his premature dismissal from office.
108. The Government
contended that Article 13 was not applicable in the present case, since the
applicant could not be considered to have an arguable claim under Article 10.
109. The Court reiterates
that Article 13 requires a remedy in domestic law only in respect of grievances
which can be regarded as “arguable” in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April
1988, § 52, Series A no. 131).
110. In so far as the complaint
under Article 13 concerns the existence of a domestic remedy in respect of his
complaints under Article 1 of Protocol No. 1, the Court notes that it has
already declared them inadmissible in paragraph 106 above. Accordingly,
the applicant did not have an “arguable claim” of a violation of Article 1 of
Protocol No. 1 and, therefore, Article 13 of the Convention is
inapplicable.
111. It follows that this
part of the complaint under Article 13 of the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of
Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4
thereof.
112. In so far as the
complaint under Article 13 concerns the existence of a domestic remedy in
respect of the complaint under Article 10, the Court considers
that it is admissible. However, the Court notes that the role of Article 6 in
relation to Article 13 is that of a lex
specialis, the requirements of Article 13 being absorbed by more stringent
requirements of Article 6 (see, for example, Efendiyeva v. Azerbaijan, no. 31556/03, § 59, 25 October 2007).
Given the Court’s
findings under Article 6 of the Convention, the present complaint does not give
rise to any separate issue (see Oleksandr Volkov, cited above, § 189).
113. Consequently, the Court
holds that it is not necessary to examine the complaint under Article 13 in
conjunction with Article 10 of the Convention separately.
V. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION
114. Lastly, the applicant
complained that he had been treated differently from
other office holders in analogous situations (other court executives, the
president of the Constitutional Court), as a consequence of his having
expressed politically controversial opinions. The measures directed against him
therefore constituted unjustified differential treatment on the ground of
“other opinion”. He relied on Article 14 of the Convention, taken in
conjunction with Articles 6 and 10 and Article 1 of Protocol No. 1.
115. The
Government argued that since Article 6 was not applicable in the present case,
Article 14 was not applicable either. As regards the applicant’s complaint
under Article 14 read in conjunction with Article 10, they were of the opinion
that this complaint was essentially the same as the one under Article 10, and
therefore should also be declared manifestly ill-founded. Nevertheless, they
noted that the applicant’s position as President of the Supreme Court differed
from that of other judges and other holders of public office elected by
Parliament.
116. As the
Court has consistently held, Article 14 of the Convention complements the other
substantive provisions of the Convention and its Protocols. It has no
independent existence since it has effect solely in relation to “the enjoyment
of the rights and freedoms” safeguarded by those provisions. Although the
application of Article 14 does not presuppose a breach of those provisions –
and to this extent it is autonomous – there can be no room for its application
unless the facts at issue fall within the ambit of one or more of the latter
(see Hans-Adam von Liechtenstein v.
Germany [GC], no. 42527/98, § 91, ECHR 2001-VIII).
117. The
Court has already found that the facts at issue do not fall within the ambit of
Article 1 of Protocol No. 1. It therefore concludes that they do not attract
the protection of Article 14 in conjunction with Article 1 of Protocol No. 1.
It follows that the applicant’s complaint is incompatible ratione materiae with the
provisions of the Convention and the Protocols thereto, within the meaning of Article 35 § 3 (a) of the
Convention, and must be rejected pursuant to Article 35 § 4.
118. As
regards the applicant’s complaints under Article 14 read in conjunction with
Articles 6 and 10, the Court finds that these complaints are intrinsically
linked to the complaints submitted under Articles 6 and 10 of the Convention
and must therefore be declared admissible. However, having regard to its
findings in paragraphs 79 and 103 above, the Court considers it unnecessary to
examine these complaints separately.
VI. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
119. Article 41 of the
Convention provides:
“If the Court finds
that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
120. The applicant claimed
that as a result of the premature termination of his mandate as President of
the Supreme Court and the entry into force of retroactive legislation
concerning the remuneration of his post, he had lost his salary as President,
other benefits attached to that position as well as the post-term benefits
(severance allowance and pension supplement for life) to which he would have
been entitled as a former President of the Supreme Court. He provided a
detailed calculation of his claim for pecuniary damage, which amounted to
742,520 euros (EUR). He also claimed that as a consequence of the premature
termination of his mandate, his professional reputation and career had been
damaged and he had suffered considerable frustration. He sought an award of
just satisfaction for non-pecuniary damage in the amount of EUR 20,000.
121. As regards the costs
and expenses before the Court, the applicant claimed EUR 153,532. The claim consisted
of legal fees of the applicant’s representatives, who had spent 669.5 hours
working on the case; fees for other legal work (research, translations)
amounting to 406.9 hours; and other expenses (details of which were provided).
122. The Government
contested the applicant’s claim for pecuniary damage and submitted that through
this claim he had reintroduced his complaint under Article 1 of Protocol No. 1.
They contended that his claims for damages for the loss of future income and
other property-related damages were unfounded and irrelevant. As regards costs
and expenses, the Government argued that the applicant’s costs incurred on
account of claiming damages for loss of future income as well as his complaint
concerning the violation of his right to property could not be considered to
have been necessarily incurred or reasonable.
123. In the circumstances of
the present case, the Court considers that the question of the application of
Article 41 is not ready for decision. That question must accordingly be
reserved and the subsequent procedure fixed, having regard to any agreement
which might be reached between the Government and the applicant (Rule 75 §§ 1
and 4 of the Rules of Court).
FOR THESE
REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join to the merits the issue of whether it is competent ratione materiae to
examine the complaint under Article 6 § 1 of the Convention;
2. Declares the complaints concerning Articles 6 § 1, 10, 13 in conjunction with Articles 10, and 14
in conjunction with Articles 6 § 1 and
10 admissible and the remainder of the application inadmissible;
3. Holds that it is competent ratione materiae to examine the complaint under Article 6 § 1 of the Convention
and that there has been a violation of the said article;
4. Holds that
there has been a violation of Article 10 of the Convention;
5. Holds that there is no need to examine
the complaint under Article 13 in conjunction with Article 10 of the
Convention;
6. Holds that there is no need to examine the
complaint under Article 14 in conjunction with Articles 6 § 1 and 10 of the
Convention;
7. Holds that the question of the
application of Article 41 of the Convention is not ready for decision and
accordingly,
(a) reserves the said question;
(b) invites the Government and the applicant to submit, within three
months from the date on which the judgment becomes final according to Article
44 § 2 of the Convention, their written observations on the matter and, in particular,
to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same
if need be.
Done in
English, and notified in writing on 27 May 2014, pursuant to Rule 77 §§ 2 and 3
of the Rules of Court.
Abel Campos Guido Raimondi
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules
of Court, the separate opinion of Judge Spano is annexed to this judgment.
G.RA.
A.C.
CONCURRING
OPINION OF JUDGE SPANO
1. This case
discloses a clear-cut violation of Article 10 of the Convention. I therefore
fully concur with my colleagues. I write separately to address an issue not
examined in the Court’s judgment (see paragraph 98), namely whether the
interference with the applicant’s Article 10 rights pursued a “legitimate aim”
as required by Article 10 § 2.
2. The Court
correctly concludes that the “early termination of the applicant’s mandate as President
of the Supreme Court was a reaction against his criticism and publicly
expressed views on judicial reforms and thereby constituted an interference
with the exercise of his right to freedom of expression” (see paragraph 97 of
the judgment).
3. When
considering whether such a measure pursued a legitimate aim within the meaning
of Article 10 § 2
of the Convention, it bears reiterating that the right
to freedom of expression has as its fundamental purpose the safeguarding of the
democratic process, the “rule of law”
being one of the “fundamental principles of a democratic
society” (see Klass and Others v.
Germany, 6
September 1978, § 55, Series A no. 28). Furthermore,
the Court has previously held in a case concerning the
freedom of expression of civil servants that issues relating to the “separation
of powers” can involve “very
important matters in a democratic society which the public has a legitimate
interest in being informed about and which fall within the scope of political
debate” (see Guja v. Moldova [GC], no. 14277/04, § 88, ECHR 2008).
4. In the present
case, the highest judicial office-holder of a constitutionally separate and
independent branch of government lost his position as President of the Supreme
Court prematurely, due only to his expressive activity in furtherance of a
statutory duty to promote the interests of the judiciary in its relations with
the other branches. The measure used by the legislature to remove him from
office was a singular law of constitutional pedigree, clearly directed at the
applicant and at him alone. Hence, it is axiomatic that the premature
termination of the applicant’s mandate, on the basis of his publicly expressed
views on the separation of powers and the independence of the judiciary, did
not and could not have pursued a legitimate aim within the meaning of
Article 10 § 2 of the Convention.
[1] Article 258 of the
Treaty on the Functioning of the European Union (TFUE) gives the Commission, as
guardian of the Treaties, the power to take legal action against a Member State
that is not respecting its obligations under EU law.
[2] Cardinal Acts need a two thirds
majority to be adopted or changed.
[3] The Fourth Amendment to the
Fundamental Law of 25 March 2013 transferred the text of section 11 of the
Transitional Provisions into point 14 of the Final Provisions of the
Fundamental Law.