CASE OF BAKA v. HUNGARY
Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved
András Baka;Egidijus Kūris;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
7. The applicant was born in 1952 and lives in Budapest. 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). 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. 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. 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. 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. 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. 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.