Communicated on 4 March 2014
SECOND SECTION
Application no. 45434/12
J.B. and 66 Others
against Hungary
lodged on 20 June 2012
STATEMENT OF FACTS
A. The circumstances of the case
The facts of the cases, as submitted by the applicants, may be summarised as follows.
Following legislation aimed at lowering the age-limit of judges from 70 to 62 years (Act no. CLXII of 2011), criticised by the Constitutional Court, the Venice Commission and the Court of Justice of the European Union ("ECJ"), on 11 March 2013 Parliament adopted an amendment to the impugned new rules (Act no. XX of 2013). According to the modified scheme, the reduction of the compulsory retirement age to a unified limit of 65 years will be effective as of 1 January 2023. Transitional provisions apply to the period between 2 April 2013 (the entry into force of the amendment) and 31 December 2022. During this interval, the age-limit for compulsory retirement varies between 70 and 65 years according to the date of birth of the person concerned (the older a judge is, the longer the preparation time accorded to him before compulsory retirement).
For those judges – such as the applicants – who had already been affected by the rules of compulsory retirement (eventually repealed by the Constitutional Court as unconstitutional) and forced to retire, the new law introduced the possibility to choose, within a 30-days’ time-limit to be counted from the amendment’s entry into force, from three options. The applicants fall into one of the categories outlined below.
Firstly, they could request a stand-by post at the court from which they retired, meaning that they would receive the difference between their pension allowance and 80 per cent of their last base salary (i.e. calculated without additional allowances which they had received for holding senior positions etc.) and, once in every three-year period, they may be ordered to perform judicial or managerial tasks for a maximum of two years.
Secondly, they could claim to be reinstated to their normal judicial service. In that case, they would also be entitled to their salary arrears for the period of their unconstitutionally ordered retirement. However, they could not be reinstated to their previous senior positions such as court president (vice-president) or head of division (deputy head of division), unless that position had not yet been filled in the meantime. There were only two such positions left vacant all over the country.
Thirdly, those who did not request reinstatement or placement in a stand-by post became entitled to lump sum compensation, equalling the amount of their one-year salary. Moreover, they could bring an action for the compensation of their residual damages.
In the applicants’ view, by introducing the above options, the legislator has in essence overwritten the outcome of any related labour proceedings meanwhile initiated by some ex-judges in pursuit of the Constitutional Court decision, because the above options were independent from those proceedings and effectively did not take them into account: in some cases, the judgments ordered the applicants’ reinstatement in their previous positions, whereas the intervening law made this virtually impossible; in other cases, judgments ordered the payment of interest on salary arrears, which was not the case under the subsequent legislation.
In connection with their complaint about discrimination (see below), the applicants also point out that, as of 11 December 2013, the 70 years age-limit for compulsory retirement for Constitutional Court judges was abolished. Consequently, if elected just before reaching the age of 70 (the new age-limit for appointment), Constitutional Court judges can remain in function even having passed 81 years of age, the mandate lasting 12 years. Moreover, the age-limit for lay assessors remained 70 years, although “in their activities concerning the adjudication of cases, the rights and obligations of the lay assessors are similar to those of judges”, according to Act no. CLXI of 2011 on the Organisation and Administration of Courts.
The applicants also stress that Act no. XX of 2013 did not provide for any compensation for their non-pecuniary damages related to their vexation and humiliation. Nor did the law acknowledge that their Convention rights had been violated.
COMPLAINTS
1. Relying on Article 6 § 1 of the Convention, the applicants complained that their right of access to court had been violated. In this respect they asserted that, prior to the Constitutional Court’s decision, they had been unable to challenge their retirement in court, the measure being statutorily legislated. Although subsequently the Constitutional Court’s decision had opened the way for bringing individual labour actions, their right of access to court was made obsolete by Act no. XX of 2013, which rendered any related labour judgments devoid of effect.
2. They also argued that, contrary to Article 13 of the Convention, there had been no available domestic remedies in respect of the impugned measure.
3. With reference to the ECJ judgment, the applicants complained that they had been subject of discrimination, in breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. They also referred to the regulation of the age-limit of Constitutional Court judges and lay assessors in this respect. Moreover, they complained about the fact that Act no. XX of 2013 fails to treat differently persons whose situations are significantly different, in that it provides for a unified amount of lump sum compensation.
4. Finally, the applicants claimed that their legitimate expectation to enjoy their status and remuneration as judges until the age of 70 had been violated in breach of Article 1 of Protocol No. 1.
QUESTION TO THE PARTIES
Has there been an interference with the applicants’ right to respect for their 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?
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