BAKA v. HUNGARY

SECOND SECTION

Application no. 20261/12
András BAKA
against Hungary
lodged on 14 March 2012

STATEMENT OF FACTS

The applicant, Mr András Baka, is a Hungarian national, who was born in 1952 and lives in Budapest. He is represented before the Court by Mr A. Cech, a lawyer practising in Budapest.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Election of the applicant as President of the Supreme Court and his functions

On 22 June 2009, after 17 years of service (1991-2008) as a judge at the European Court of Human Rights and, subsequently, more than one year of service as a member of the Metropolitan High Court, the Parliament of Hungary elected the applicant, by its decision no. 55/2009 (VI.24) OGY, President of the Supreme Court for a six-year term, until 22 June 2015.

In this quality, the applicant not only performed managerial tasks but acted also in his judicial function, as he presided over several deliberations on uniformity issues and guiding decisions. He was also the 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 Act LXVI of 1997 on the Organisation and Administration of Courts. As the head of the National Council of Justice, the applicant was explicitly empowered and obliged by the law to express an opinion on parliamentary bills that affected the judiciary, after having gathered and summarised the opinion of different courts via the Office of the National Council of Justice.

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).

2. Background to the case

After April 2010, when the alliance of Fidesz-Magyar Polgári Szövetség (Fidesz-Hungarian Civic Union, hereinafter Fidesz) and KDNP (Christian Democratic People’s Party) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional reform, 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, namely the Nullification Act, the retirement age of judges, the amendments to the Code of Criminal Procedure and the new Act on the Organisation and Administration of Courts.

Firstly, as regards the Nullification Act (Act XVI of 2011 on redressing the convictions relative to the crowd dispersion in autumn 2006), the applicant criticised the manner in which it intended to reach its goal (reopening final judgments and annulling by the legislature certain judicial decisions ). The spokesman of the applicant explained on 12 February 2011 to the journal Népszabadság that in the applicant’s view “the Bill ordering annulment of some judicial decisions delivered in relation to 2006 riots gives cause for concern, because it violates the judges’ right to free assessment of evidence. This is a serious constitutional problem”. He stressed that “the judiciary examines 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 the Parliament will choose a legal technique that eliminates the problem of unconstitutionality”. The day after the adoption of the Bill, on 8 March 2011, István Balsai (Fidesz MP, chairman of the Constitutional, Judicial and Standing Orders Committee of the 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 unfortunate if a member of the judiciary, in any position whatsoever, tries to exert influence over the legislative process in such a way”.

Secondly, in relation to the proposal to reduce the mandatory retirement age of judges (from 70 to the general retirement age, 62 years old) in Article 26 (2) of the new Constitution, on 7 April 2011 court presidents, including the applicant, addressed a letter to different actors in the constitutional process (President of the Republic, Prime Minister, Speaker of the Parliament, etc.) in which they pointed out the possible risks to the judiciary posed by this proposal. Their concern was that the proposed rule abolished the possibility for judges to exercise their function until the age of 70 and, as a consequence, would force one tenth of the Hungarian judges (274 persons) to terminate their career 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 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 the Parliament expresses political demands on the judiciary and evaluates judges by political standards”. That same day, the Parliament adopted the above-mentioned proposal (see Relevant domestic law, below).

On 14 April 2011 the plenary session of the Supreme Court, the 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 criticising 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 1st 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. Until the 31st 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. (...).”

Thirdly, on 14 June 2011, Bill T/3522 on the amendment of certain Acts concerning judicial procedure and the judicial system (among which the Code of Criminal Procedure), was submitted to the Parliament. At the request of the applicant, the Criminal Law Division of the Supreme Court prepared an analysis of the Bill, which was communicated to the members of the Parliament. As no substantive changes were made to the Bill (adopted on 4 July 2011 as Act LXXXIX of 2011), the applicant decided to challenge the Act before the Constitutional Court on the ground of unconstitutionality and violation of obligations enshrined in international treaties, making use of this prerogative for the first time in Hungarian history. The Constitutional Court, in its decision 166/2011 (XII.20) AB of 19 December 2011, established the unconstitutionality of the impugned provisions and quashed them (notably, the provision concerning the Chief Prosecutor’s right to establish court competence by derogation from default statutory rules).

Lastly, the applicant expressed his views in the parliamentary debate on the new cardinal Acts on the Organisation and Administration of Courts (Bill T/4743) and on the Legal Status and Remuneration of Judges (Bill T/4744). According to the explanatory memorandum to the Bills, it was proposed that the National Council of Justice be abolished and be replaced by a National Judicial Office and a National Judicial Council. These proposals were made for the purpose of separating 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 concept underlying the proposed reform aimed at concentrating the tasks of judicial management in the hands of the President of the new National Judicial Office, while leaving the charge of overseeing the uniform administration of justice with the President of the Supreme Court (renamed with the historical appellation “Curia”). On 26 October 2011, the applicant addressed a detailed analysis of the Bills to the Parliament, having regard to the comments received from judges all around the country. He also decided to express his opinion directly before the Parliament, in accordance with Section 45 (1) of the Parliamentary Decision 46/1994 (IX.30) OGY on the Rules of the Parliament. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the fact that the structural problems of the judiciary were not addressed by the legislation but left to the discretion of the chief executive of an external administration (President of the new National Judicial Office) who was assigned excessive and, in Europe, unprecedented powers without any adequate accountability.

3. Removal of the applicant as President of the Supreme Court

The new Constitution of 25 April 2011 established that the highest judicial body would be the Curia (Hungarian historical name for the Supreme Court).

On 19 November 2011, MP Gergely Gulyás, deputy head of the Fidesz fraction, submitted a Bill (no. T/4996) to the Parliament, proposing an amendment of the 1949 Constitution. According to this amendment, the Parliament should elect the President of the Curia by 31 December at the latest.

On 20 November 2011, MP János Lázár and MP Péter Harrach, fraction leaders of the Fidesz and the KDNP respectively, submitted a Bill (no. T/5005) to the Parliament on the Transitional Provisions of the new Constitution. Its Article 11 provided that the legal successor of the Supreme Court, the National Council of Justice and its President would be the Curia for the administration of justice, and the President of the National Judicial Office for the administration of courts. Pursuant to Article 11(2) of the Transitional Provisions, the President of the Supreme Court as well as the President and the members of the National Council of Justice would have their term of office terminated upon the entry into force of the Fundamental Law.

In order to regulate this issue also on an “ordinary” legislative level, a proposal was submitted on 23 November 2011 by a Fidesz MP, Ferenc Papcsák. This was aimed at amending Sections 185 and 187 of the Bill T/4743 on the Organisation and Administration of Courts, to the effect that the term of office of the National Council of Justice and its members, its President as well as the President and the Vice-President of the Supreme Court would be terminated upon the entry into force of the Fundamental Law.

On 28 November 2011 the Parliament adopted both the Bill T/4743 (as Act CLXI of 2011 on the Organisation and Administration of Courts) and the Bill T /4996 (as Act CLIX of 2011 on the Amendment of the Act XX of 1949 on the Constitution of the Republic of Hungary) with the content described above. The date of the entry into force of the Fundamental Law was set at 1 January 2012.

The applicant’s term of office was terminated on 1 January 2012, three and a half years before its normal date of expiry.

4. Election of a new President to the Curia

In order for a new President to be elected to the Curia in due time, Act CLIX of 2011 on the Amendment of the Act XX of 1949 on the Constitution of the Republic of Hungary entered into force on 2 December 2011. On 9 November 2011, the Bill on the Organisation and Administration of Courts was amended and a new criterion was introduced as regards the election of the new President of the Curia. This law provides that the President of the Curia shall be elected by the Parliament from among the judges appointed for an indeterminate term, having at least 5 years of service status as a judge (Section 114 (1) of the Act CLXI of 2011, see Relevant domestic law, below). The President of the Republic proposed to the Parliament, on 9 December 2011, the election of Péter Darák as President of the Curia and the election of Tünde Handó as President of the National Judicial Office. On 13 December 2011, the Parliament elected the candidates in accordance with the proposal of the President of the Republic.

5. Consequences of the applicant’s early termination of office

The applicant is serving as a judge of the new Curia (civil section). According to the internal regulation on press contacts at the Curia, the applicant is no longer entitled to express his opinion freely, the giving of interviews being subject to prior consent on behalf of the President of the Curia.

The premature termination of his office has also entailed pecuniary consequences. Firstly, he has lost the remuneration and other benefits (social security, presidential residence, personal protection, etc.) to which a President of the Supreme Court is entitled throughout the period of the fixed presidential term. Secondly, an outgoing President of the Supreme Court had statutory right to some benefits (allowance during six months following the termination of his/her office, office and a secretariat with two employees for two years, pension supplement for life) – of which the applicant was also deprived. Act XXXIX of 2000 on the Remuneration and Allowances of, inter alia, the President of the Supreme Court, was repealed as from 1 January 2012. Section 227 (1) of the Act CLXII of 2011 on the Legal Status and Remuneration of Judges (as amended on 28 November 2011 and as entered into force on 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 reached the retirement age by the entry of force of the Act, and requested the allowance.

Since the applicant would not have attained the retirement age by 1 January 2012, he could not claim payment of this post-function benefit.

6. The European Commission procedures and the proceedings before the Court of Justice of the European Union

On 12 December 2011, EU Justice Commissioner Viviane Reding wrote a letter to the Hungarian authorities to raise concerns on the issue of the age of retirement 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 Curia, 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.

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 recalled that EU rules on equal treatment in employment (Directive 2000/78/EC) prohibit 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 is needed if a government decides 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. The Commission, in its press release IP/12/24, 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.”

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).

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 of the European Union declared that by adopting a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach the age of 62 – which gives 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 establishing 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 70, 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 of such a kind as to protect the legitimate expectations of the persons concerned.

B. Relevant domestic law

1. Constitution of 1949

The relevant Articles of the Constitution 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 the 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 the Parliament upon the recommendation of the President of the Republic (...) A majority of two-thirds of the votes of the Members of Parliament shall be required to elect the President of the Supreme Court.”

2. Act LXVI of 1997 on the Organisation and Administration of Courts

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.

According to section 69 of the Act, court executives were appointed for six years.

Section 73 of the Act contained an exhaustive list of causes for termination of the term of office of court executives. It provided that:

“[t]the term of office of a court executive shall terminate 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 office”.

According to Section 74/A (1) of the Act, if an appraisal of the court executive’s management activity established his/her incompetence for such managing position, the court executive was to be dismissed from his/her office with immediate effect. The dismissed court executive was entitled to seek a legal remedy before the Service Tribunal contesting the dismissal, within 15 days upon service (Section 74/A (2)).

The Act established the National Council of Justice and added the function of being at the same time the President of this Council to the tasks of the President of the Supreme Court. The President of the National Council of Justice was explicitly empowered and obliged by the law to express an opinion on parliamentary Bills that affected the judiciary, after having gathered and summarized the opinion of different courts via the Office of the National Council of Justice (Section 46 (1) a) of the Act).

3. Act LXVII of 1997 on the Legal Status and Remuneration of Judges

According to Section 57 (2), points ha) and hb) of the Act, a judge was entitled to serve, beyond the general retirement age, until he or she became 70 years old.

4. Constitution of 25 April 2011, entered into force on 1 January 2012

Articles 25 and 26 of the new Constitution provide as follows:

Article 25

“(1) Courts shall administer justice. The supreme judicial body shall be the Curia.

(2) Courts shall decide on:

a) criminal matters, civil disputes, other matters defined by laws;

b) the legitimacy of administrative decisions;

c) the conflict of local ordinances with other legislation and their annulment;

d) the establishment of a local government’s neglect of its statutory legislative obligation.

(3) In addition to the responsibilities defined by Paragraph (2), the Curia shall ensure uniformity in the judicial application of laws and shall make decisions accordingly, which shall be binding on courts.

(...)

(7) The detailed rules for the organisation and administration of courts, and of the legal state and remuneration of judges shall be regulated by a cardinal Act.”

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 only be removed from office 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 Curia, no judge may serve who is older than the general retirement age.

(3) The President of the Curia shall be elected from among its members for nine years by Parliament on the recommendation of the President of the Republic. The election of the President of the Curia shall require a two-thirds majority of the votes of the Members of Parliament.”

5. Act CLIX of 2011 on the amendment of the Act XX of 1949 on the Constitution of the Republic of Hungary, entered into force on 2 December 2011

Section 1

“The Constitution shall be amended with the following Section 79:

“Section 79. The Parliament shall elect, according to paragraph (3), Article 26 of the Fundamental Law, by 31 December 2011 at the latest, the President of the Curia.”

6. Transitional Provisions to the Fundamental Law of Hungary, 31 December 2011

Article 11

“(1) The legal successor of the Supreme Court, the National Council of Justice and its President shall be the Curia for the administration of justice, and the President of the National Judicial Office for the administration of courts with the exception 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.”

Article 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 relationship 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 2012 and 31 December 2012, his or her service relationship shall be terminated on 31 December 2012.”

Article 29

“(2) (...) The Transitional Provisions shall form part of the Fundamental Law.”

7. Act CLXI of 2011 on the Organisation and Administration of Courts

Chapter VIII
President of the Curia and court leaders

32. President of the Curia

Section 114

“(1) The President of the Curia 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 Curia for the First Time

Section 177

(1) The President of the Republic shall nominate the President of the NJO and the President of the Curia 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 Curia 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 term of office 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 Curia shall commence as of 1 January 2012. (...)”

Section 187

“The term of office of the court executives appointed before 1 January 2012 shall last until the date fixed in their appointment, except for the cases regulated in Section 185 (1).”

Section 188

“(1) The legal successor of the Supreme Court, the National Council of Justice and its President is the Curia 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.”

According to Section 173 of the Act, Section 177 entered into force the on the day following its promulgation (3 December 2011), and Sections 185, 187 and 188 on 1 January 2012.

8. Act CLXII of 2011 on the Legal Status and Remuneration of Judges, entered into force on 1 January 2012

Section 90

“A judge shall be exempted:

(...)

h) if the judge

ha) has completed the applicable old-age pension age (hereinafter referred to as the “upper age limit”), not including the President of the Curia (...)”.

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 completed the old-age pension age by the entry into force of the present Act and requested the benefits.”

Section 230

“(1) The provisions of the present Act shall govern judges completing the upper age limit before 1 January 2013 subject to the differences set forth in Paragraphs (2) and (3).

(2) If the judge completed the upper age limit before 1 January 2012, the initial day of the exemption period is 1 January 2012, while the closing day is 30 June 2012, and his judicial office shall cease effective 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 completes the upper age limit between 1 January 2012 and 31 December 2012, the initial day of the exemption period is 1 July 2012, while the closing day is 31 December 2012, and his judicial office shall cease effective 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.”

9. Constitutional Court’s judgment no. 33/2012 of 16 July 2012

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 Law of 2011 on judges) as of 1 January 2012 (the date of entry into force of the Act on the Status and Remuneration of Judges). The Constitutional Court held that the new regulation violated the constitutional requirements for judicial independence on both formal and substantial grounds. From the formal point of view, a cardinal act shall determine the length of judicial service and the retirement age in order to guarantee the irremovability of judges. Therefore, the reference to the “general retirement age” laid down in an ordinary Act does not fulfil this requirement. As regards the substantial unconstitutionality, the new regulation resulted in the removal of judges within a short period, within 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 of judges shall be made gradually, within an appropriate transitory period and without the violation of the principle of irremovability of judges. The greater the difference between the new retirement age and 70 years, the longer the transitional period for introducing a lower retirement age which is needed. If not, the irremovability of judges, which constitutes an essential element of the judicial independence, is violated.

C. Council of Europe material

1. Opinions of the Venice Commission

The relevant extracts from the Opinion on the New Constitution 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.”

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 of § 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.

The relevant extracts from the Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary, 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.”

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[2] 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.”

2. Press Release of the Council of Europe Commissioner for Human Rights

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.”

3. European Charter on the Statute for Judges of 8-10 July 1998

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 occurence 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.”

4. Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities

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.”

D. The European Parliament

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 others, to the exercise of democracy, the rule of law, the respect and protection of human and social rights and the system of checks and balances. It mentioned that “according to the new Constitution and its Transitional Provisions, the Supreme Court was renamed the ‘Curia’, and the 6 year-long mandate of the former Chairman of the Supreme Court was ended prematurely after two years” (considering F). At the same time, the European Parliament called on the European Commission to monitor closely the possible amendments and the implementation of the criticized laws and their compliance with the 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.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he has been denied access to a tribunal to defend his rights relating to his premature dismissal. He contends that his dismissal was a result of enactments in both the former and the new Constitution, thereby depriving it of judicial review, even by the Constitutional Court.

The applicant complains under Article 10 of the Convention that he was dismissed in connection with his views and public position expressed 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 argues that the impugned constitutional provisions removing him from office were arbitrary, abusive, retroactive and incompatible with the principle of the rule of law. The interference with his right to freedom of expression did not pursue a legitimate aim and was not necessary in a democratic society.

The applicant complains under Article 1 of Protocol No. 1 that his premature dismissal unjustifiably deprived him of the peaceful enjoyment of his possessions, namely, the vested benefits that would have been due to him during his term of office and as an outgoing president of the Supreme Court subsequent to the termination of his term of office.

The applicant complains under Article 13 taken in conjunction with Article 10 of the Convention and Article 1 of Protocol No. 1 that he was deprived of an effective domestic remedy in relation to his premature dismissal from office.

Finally, under Article 14 of the Convention, taken in conjunction with Articles 6 and 10 of the Convention and Article 1 of Protocol No. 1, the applicant complains that he has 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 a politically unwanted opinion. The measures directed against him therefore constituted unjustified differential treatment on the ground of “other opinion”, a ground of discrimination prohibited by Article 14.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention under its civil head applicable in the present case?

2. If so, did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

3. Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 10, as required by Article 13 of the Convention?

5. Has the applicant suffered discrimination in the enjoyment of his Convention rights, contrary to Article 14 of the Convention read in conjunction with Articles 6 and 10 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] It seems odd that the proposal intends to amend the Transitory Provisions in order to introduce an obviously permanent provision on the retirement age.

 

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