Communicated on 21 May 2014
SECOND SECTION
Application no. 22254/14
Lajos ERMÉNYI
against Hungary
lodged on 20 June 2012
STATEMENT OF FACTS
The applicant, Mr Lajos Erményi, is a Hungarian national, who was born in 1950 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.
As of 15 November 2009, the applicant was appointed Vice-President of the Supreme Court for a six-year term.
The mandate of the President of the Supreme Court was prematurely terminated upon the entry into force of the Fundamental Law on 1 January 2012, apparently as a reaction to his criticisms and publicly expressed views on judicial reforms (see Baka v. Hungary, no. 20261/12, § 97, not final).
In connection with these events, a proposal for the termination of the applicant’s mandate as Vice-President of the Supreme Court was also submitted to Parliament on 23 November 2011, and eventually adopted on 28 November 2011. Accordingly, as of 1 January 2012, the applicant was removed from his executive position, almost four years before the date of his mandate’s expiry.
The applicant 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. On 19 March 2013 the Constitutional Court rejected the complaint, with the participation of a former Member of Parliament who, before being elected judge of the Constitutional Court, had voted for the impugned law and had taken part in its preparation as the head of the competent Parliamentary Committee.
B. Relevant domestic law and practice
1. Constitution of 1949
The relevant articles of the Constitution (as amended and in force at the time of the applicant’s appointment) provided as follows:
Article 48 (1)
“The President of the Supreme Court shall be elected by Parliament upon the recommendation of the President of the Republic; its vice-presidents shall be appointed by the President of the Republic upon the recommendation of the President of the Supreme Court. ...”
2. Organisation and Administration of the Courts Act (Act LXVI of 1997)
Section 62 of the Act listed the Vice-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.
Under section 69 of the Act, court executives were appointed for six years.
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”.
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)).
3. Organisation and Administration of the Courts Act (Act CLXI of 2011)
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.”
4. Constitutional Court’s decision no. 3076/2013 of 19 March 2013
In its decision 3076/2013. (III. 27.) AB, adopted on 19 March 2013 by eight votes to seven, the Constitutional Court rejected the applicant’s constitutional complaint about the termination of his position, with the participation of a former Member of Parliament who, before being elected judge of the Constitutional Court, had voted for the impugned law and had taken part in its preparation as the head of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time.
The majority reasoning stated that the premature termination of the applicant’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 Curia. It noted that the Curia’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 Curia had not fundamentally affected the status of the Vice-President. The dissenting judges concluded that the premature termination of the applicant’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.
5. Act CLI of 2011 on the Constitutional Court
Section 62
“(1) That Member of the Constitutional Court who is a relative of the petitioner or of the petitioner’s legal representative, or participated in the court proceedings under adjudication either as a party or in any other way, as a judge in the making of a judicial decision, shall not participate in the adjudication of the constitutional complaint.
(2) That Member of the Constitutional Court, who is personally and directly concerned in the matter under adjudication and thus cannot be expected to pass an impartial, objective and unbiased decision on the case, shall not participate in the adjudication of the petition. ...”
COMPLAINTS
The applicant complains under Articles 6, 13 and 14 of the Convention, as well as under Article 1 of Protocol No. 1, that the premature termination of his mandate as Vice-President of the Supreme Court violated his Convention rights.
QUESTION TO THE PARTIES
Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 165, 166, 186, ECHR 2013)? If so, was that interference in accordance with the law and necessary in pursuit of a legitimate aim, given, in particular, that a former MP, who had previously voted for the impugned law and taken part in its preparation, participated in the adjudication of the measure’s constitutionality (see, mutatis mutandis, İhsan Ay v. Turkey, no. 34288/04, § 37, 21 January 2014)?
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