CASE OF ERMÉNYI v. HUNGARY
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
6. The applicant was born in 1950 and lived in Budapest. 7. Having been a judge since 1 January 1978 and a member of the Supreme Court since 1 March 1994, on 15 November 2009 he was appointed Vice-President for a six-year term by the President of the Republic, after being proposed for the post by the President of the Supreme Court. 8. 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, in reaction to his criticisms and publicly expressed views regarding proposed judicial reforms (see Baka v. Hungary [GC], no. 20261/12, § 151, 23 June 2016). 9. In connection with these events, a proposal for the termination of the applicant’s mandate as Vice-President was submitted to Parliament on 23 November 2011, and was adopted on 28 November 2011 in the form of section 185 of Act no. CLXI of 2011 on the Organisation and Administration of the Courts (“the AOAC”) (see Baka, cited above, § 30). Accordingly, as of 1 January 2012, the applicant was removed from his position as Vice-President, three years and ten months before the scheduled expiry of his mandate. He remained in office as president of one of the Civil Law division benches of the Kúria (the historical appellation by which the Supreme Court was renamed in 2012). 10. On 7 February 2012 the applicant lodged a constitutional complaint with the Constitutional Court challenging the termination of his position. In its judgment no. 3076/2013. (III. 27.) AB, adopted by eight votes to seven, the Constitutional Court rejected the constitutional complaint. It held that the premature termination of the applicant’s term of office as Vice-President had not violated the Fundamental Law, since it had been sufficiently justified by the full-scale reorganisation of the judicial system and important changes made in respect of 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 (for the relevant parts of the Constitutional Court’s judgment see Baka, cited above, § 55). Seven judges dissented and considered that the changes concerning the judicial system, the new Kúria and the person of its president had not fundamentally affected the status of the Vice-President. The position of the Vice-President within the organisation of the supreme judicial instance had not changed. Under the Act LXVI of 1997 on the Organisation and Administration of the Courts, the Vice-President was already entitled to act in the stead of the President of the Supreme Court only with regard to managerial tasks at the Supreme Court, but not with regard to his or her functions as President of the National Council of Justice (see Baka, cited above, § 56). The dissenting judges concluded that the premature termination of the applicant’s term of office had not been sufficiently justified by the reorganisation of the judicial system; and that it had weakened the guarantees in respect of the separation of powers, had been contrary to the prohibition on retroactive legislation, and had breached the principle of the rule of law and the right to a remedy. 11. On 6 July 2012, as a consequence of the lowering of the judges’ mandatory retirement age pursuant to section 90 (ha) of Act no. CLXII of 2011 on the Legal Status and Remuneration of Judges (“the ALSRJ”) (see Baka, cited above, § 52), the President of the Republic released the applicant from his duties as a judge with effect from 31 December 2012. 12. In its judgment no. 33/2012. (VII. 17) AB of 16 July 2012, the Constitutional Court declared unconstitutional and consequently annulled the provisions on the compulsory retirement age of judges (see Baka, cited above, § 53). On the basis of that judgment, the Budapest Labour Court found, in a first-instance judgment of 21 March 2013, that the termination of the applicant’s judicial service had been unlawful and reinstated him – without, however, ordering his reinstatement in his previous position as president of one of the Civil Law division benches of the Kúria. 13. Following the Constitutional Court’s judgment of 16 July 2012, Parliament adopted a modified scheme governing the reduction of judges’ compulsory retirement age and provided different options for those who had already been affected by the unconstitutional legislation (see Act no. XX of 2013 referred to in Baka, cited above, § 54). The applicant opted not to be reinstated and received lump-sum compensation for the termination of post as a judge.