European Court of Human Rights: Hungary’s government unduly removed Supreme Court president

May 27, 2014

strahungary

The European Court of Human Rights delivered a landmark judgement against Hungary’s government today, ruling that the government had used the letter of the law to force the early termination of the mandate of the President of Hungary’s Supreme Court.

The court ruled that the Fidesz-KDNP govenrment unduly targeted the President of the Supreme Court for publicly criticizing the government’s legislative activities and terminated his mandate. This imposed a “chilling effect” on the entire judicial system, said the court.

Background

On 22 June 2009, after serving for seventeen years as a judge at the European Court of Human Rights (1991-2008), and then as a member of the Budapest Court of Appeal for over a year, parliament elected Andras Baka President of the Supreme Court for six years, that is, until June 2015. In this capacity, Baka was not only responsible for performing administrative tasks but also had a judicial role, presiding over deliberations and guiding decisions. He was also President of the National Council of Justice, a body required by law to express an opinion on parliamentary bills that affected the judiciary, after gathering and summarizing the opinions of different courts via the Office of the National Council of Justice.

In April 2010 the alliance of Fidesz–KDNP obtained a two-thirds parliamentary majority and undertook the task of implementing sweeping and comprehensive constitutional reform. During this time President of the Supreme Court Baka spoke up several times 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, he 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.

On 25 April 2011 parliament adopted the Fundamental Law of Hungary.  Hungary’s new constitution replaced the Supreme Court with a nearly identical body called the Kuria.

On 19 November 2011, Fidesz MP Gergely Gulyas (who frequently serves as prime minister Viktor Orban’s proxy) proposed an amendment providing for parliemtn to elect the president of the Kuria by 31 December 2011.  Other leading Fidesz-KDNP MPs, including Janos Lazar, Peter Harrach and Ferenc Papcsak, submitted a series of bills which had the effect of modified Hungary’sjudicial system so that that the term of the President of the Supreme Court ended at such time the Fudamental Law came into force, three and one half years before it was due to expire.

Baka brought the case before the European Court of Human Rights. 

The government’s decision to dismiss him as President of the Supreme Court, Baka contended, was carried out against him for expressing his views in a professional capacity on four particular issues of fundamental importance to judiciary. Baka believes that not only was it  right to express his opinion but it was also one of his duties as President of the National Council of Justice. Therefore, he argued, there was a causal relationship between the expression of those views and his premature dismissal. The measures directed against him therefore constituted unjustified differential treatment on the ground of “other opinion”.

In his case, it had been proved beyond reasonable doubt by many sufficiently strong, clear and concordant inferences that the premature termination of his mandate amounted to an interference with his right to freedom of speech.

The legislative provisions removing himwere aimed at him as an individual. They were arbitrary, abusive, retroactive and incompatible with the Convention requirements concerning the quality of law in a democratic society governed by the rule of law. Moreover, the legislature had failed to demonstrate the existence of a legitimate aim.

In discharging his constitutional duty as head of the judiciary, he had freely and legitimately expressed his views on new legislation affecting the judiciary. As a result, he had not only been dismissed from his position but all of the benefits and allowances due to an outgoing President of the Supreme Court had also been removed retroactively. Those disproportionate and punitive measures, with their potential chilling effect, compromised the independence of the judiciary as a whole.

Government dismissed his position because:

The Fidesz-KDNP argued that there had been no interference with Baka’s freedom of expression since termination of his mandate as President of the Supreme Court was not related to the opinions that he had expressed. The government also argued that the public expression of his opinions occurred before the termination of his mandate and was not sufficient proof of a causal link between the expression of his opinion and the termination of his mandate. Furthermore, the government argued, the function of the President of the Supreme Court ceased to exist upon the entry into force of the Fundamental Law on 1 January 2012. The government held Baka’s complaints to be “manifestly ill-founded”.

Third-party opinions were sought, here’s what they said:

The Hungarian Helsinki Committee, the Hungarian Civil Liberties Union (TASZ) and the Eötvös Károly Institute observed that the case was an outstanding example of how violations of individual fundamental rights were intertwined with processes threatening the rule of law. In their view, this case was part of a general pattern of weakening of the system of checks and balances that had taken place in the past three years in Hungary. They referred to other legislative steps aimed at the early removal of individual State officials, notably the Supreme Court’s Vice-President, whose constitutional complaint had been examined by the Constitutional Court, but also the Data Protection Commissioner and members of the National Election Committee.

They also referred to other examples of legislation targeting individuals, retroactive legislation and other legislative measures threatening the independence of the judiciary (such as the right of the president of the National Judicial Office to transfer cases).

They maintained that this case should be examined in the general context in Hungary and in the light of the importance of the rule of law and the independence of the judiciary. The widespread use of legislation targeting individuals could remove a wide range of significant issues from judicial scrutiny. The court should therefore delve “behind the appearances” and examine the real purpose of such legislation and the effect it might have on individuals’ Convention rights.

The Helsinki Foundation for Human Rights of Poland considered that this case was of high significance not only to Hungary but also in terms of constitutional relations between legislative or executive authorities and the judiciary in general. They referred to the principle of the irremovability of judges as one of the most important guarantees of judicial independence, as well as to the principle of the separation of powers. They stressed that while legislative authorities had the power to introduce reforms of the constitutional system of justice, that power could not be regarded as unlimited. The reorganisation of the courts system must not have a negative effect on judges currently holding office and thus it should not be used as a tool to remove a particular judge.

The European Court of Human Rights judgement in the case:

The European Court of Human Rights today released its judgement which states that the measures taken by Hungary’s ruling Fidesz-KDNP government to interfere with the exercise of Baka’s freedom of expression – in the form of a “formality, condition, restriction or penalty” – had been carried out against EU law.

The court’s final judgement summarizes that the issue at the heart of the case is whether Baka’s mandate as President of Hungary’s Supreme Court was terminated solely as a result of the reorganisation of the judiciary in Hungary, as the government claimed, or whether, as Baka argued, as a consequence of the views he expressed publicly on legislative reforms affecting the judiciary.

The court concluded that the early termination of his mandate was a reaction against his criticisms and publicly expressed views on judicial reforms, and thereby constituted an interference with the exercise of his right to freedom of expression.

Furthermore, the court holds Hungary’s government-imposed fear of sanction has a “chilling effect” on the exercise of freedom of expression and in particular risks discouraging judges from making critical remarks about public institutions or policies, for fear of losing their judicial office. This effect contributes to the detriment of society as a whole and such interference is unbecoming of a democratic society.

Judge Spano’s final thoughts

Judge Robert R. Spano of Iceland issued the following concurring opinion:

1. This case discloses a clear-cut violation of Article 10 of the Convention. I therefore fully concur with my colleagues. I write separately to address an issue not examined in the Court’s judgment (see paragraph 98), namely whether the interference with the applicant’s Article 10 rights pursued a “legitimate aim” as required by Article 10 § 2.

2. The Court correctly concludes that the “early termination of the applicant’s mandate as President of the Supreme Court was a reaction against his criticism and publicly expressed views on judicial reforms and thereby constituted an interference with the exercise of his right to freedom of expression” (see paragraph 97 of the judgment).

3. When considering whether such a measure pursued a legitimate aim within the meaning of Article 10 § 2 of the Convention, it bears reiterating that the right to freedom of expression has as its fundamental purpose the safeguarding of the democratic process, the “rule of law” being one of the “fundamental principles of a democratic society” (see Klass and Others v. Germany, 6 September 1978, § 55, Series A no. 28). Furthermore, the Court has previously held in a case concerning the freedom of expression of civil servants that issues relating to the “separation of powers” can involve “very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate” (see Guja v. Moldova [GC], no. 14277/04, § 88, ECHR 2008).

4. In the present case, the highest judicial office-holder of a constitutionally separate and independent branch of government lost his position as President of the Supreme Court prematurely, due only to his expressive activity in furtherance of a statutory duty to promote the interests of the judiciary in its relations with the other branches. The measure used by the legislature to remove him from office was a singular law of constitutional pedigree, clearly directed at the applicant and at him alone. Hence, it is axiomatic that the premature termination of the applicant’s mandate, on the basis of his publicly expressed views on the separation of powers and the independence of the judiciary, did not and could not have pursued a legitimate aim within the meaning of Article 10 § 2 of the Convention.

Referenced in this article:

Azért rúgták ki, mert bírálta a kormányt, Index.hu; 27 May 2014.

CASE OF BAKA V. HUNGARY, European Court of Human Rights; 27 May 2014.