Legal Policy Choice of Hungary
Andreea Popescu, 17 December 2014
On 15 December 2014, upon the request of the Hungarian Government, the ECHR referred the case Baka v. Hungary (application no. 20261/12) to the Grand Chamber. The case concerns the impossibility of the former President of the Supreme Court of Hungary to contest his dismissal operated by the adoption of a new Constitution (Article 6 § 1 of the Convention). It also concerns his freedom of expression, as the applicant considered that his dismissal was the result of the criticism he had publicly expressed of government policy on judicial reform when he was President of the Supreme Court (Article 10 of the Convention).
ECLJ welcomes this referral, as it considers that the Second Section of the Court incautiously hurried to judge rather a political issue than a legal one. Moreover, for the sake of objectivity, the Court should have been more prudent in assessing this case and not rush to easily adopt the “applicant’s version of events” (§ 96), as the applicant was one of its former judges.
The application concerns Mr Baka, a former judge at the European Court of Human Rights (1991-2008). In 2009, he was elected by the Parliament of Hungary as President of the Supreme Court of Justice of Hungary (“the Supreme Court”) for a six-year term, until June 2015. In that capacity, he was also the Head of the National Council of Justice and was under a legal duty to express his opinion on parliamentary bills affecting the judiciary. Between February and November 2011, Mr Baka criticized some legislative reforms – including a proposal to reduce the mandatory retirement age for judges from 70 to 62. He expressed his opinions through his spokesman, in public letters or communiqués, including to other members of the judiciary, as well as in a speech to Parliament. From April 2010 a programme of constitutional reform was undertaken in Hungary. Thus, on December 2011, the Transitional Provisions of the new Hungarian Constitution (Fundamental Law of Hungary of 2011) were adopted, providing that the legal successor to the Supreme Court would be the Kúria (the historical Hungarian name for the Supreme Court) and that the mandate of the President of the Supreme Court would terminate upon the entry into force of the Fundamental Law. As a consequence, Mr Baka’s mandate terminated on 1 January 2012 – i.e. three and a half years before its normal date of expiry. Therefore, Mr Baka lost the remuneration to which a President of the Supreme Court was entitled throughout his mandate as well as some post-function benefits (including severance allowance and pension supplement for life). According to the criteria for the election of the President of the new Kúria, candidates were required to have at least five years’ experience as a judge in Hungary. The time served as a judge in an international court was not counted and this led to Mr Baka’s ineligibility for the post of President of the new Kúria. In December 2011, the Parliament elected two candidates, Péter Darák as President of the new Kúria and Tünde Handó as President of the National Judicial Office. Mr Baka stayed in office as an ordinary judge of the Kúria.
In a judgment of 27 May 2014, the Second Section held, unanimously, that there had been a violation of Articles 6 § 1 and 10 of the Convention.
Regarding Article 6 § 1 of the Convention (access to court), the Court found that Mr Baka’s access to court had been impeded. To arrive to this conclusion, the Court assessed whether the two conditions required by its case-law were fulfilled in order for the exclusion of the civil servant from the access to the court be compatible with the Convention: 1) the State in its national law must have expressly excluded the access to court for the post or category of staff in question; 2) the exclusion must be justified on objective grounds in the State’s interest. An exclusion is objectively justified if the civil servant in question participates in the exercise of public power and if the subject matter of the dispute at issue is related to the exercise of State power (§ 68).
In the present case, the Court concluded that the first condition was not fulfilled as “the Government have not demonstrated that the legal policy choice of enacting the premature termination of the applicant’s mandate, (…) involved an express identification by the Government, in particular the national legislature, of an “[area] of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way”” (§ 76). Firstly, it noted that the judges of the Supreme Court, including its President were not expressly excluded from the right of access to the court, as a court executive could complain to the court in the event of his dismissal for incompetence for a managerial position (§ 74). Secondly, the Court observed that the applicant could not have access to the court as the measure of premature termination of his mandate had been written in the Constitution and was therefore not subject to any judicial review (including by the Constitutional Court), although the former Vice-President of the Supreme Court was able to file a Constitutional complaint.
It is to be noted that it is not convincingly established by the Court that the position of the applicant was not expressly excluded from the right of access to the court. If his access to the Court was not excluded by a specific law, it was clearly excluded by the Constitution. Moreover, the example given by the Court according to which a judge with an executive function could complain to the court in the event of his dismissal for incompetence for a managerial position is different from the situation of the applicant whose mandate prematurely ended because of the in-depth reform of the judiciary in Hungary and the important changes in the tasks and competences of the Kúria, as the Constitutional Court explained in its decision concerning the premature termination of the mandate of the Vice-President of the Supreme Court.
Moreover, the Court considered that even assuming that the first condition required by its case-law was fulfilled, the exclusion was not objectively justified as the “Government have not adduced any arguments to show that the subject matter of the dispute, which related to the premature termination of the applicant’s mandate as President of the Supreme Court, was linked to the exercise of State power in such a way that the exclusion of Article 6 guarantees was objectively justified” (§ 77). Or, the appreciation of the Constitutional Court of Hungary in the Vice-President of the Supreme Court’s case explains why such exclusion was justified: “it was sufficiently justified by the full-scale reorganization of the judicial system and the important changes in 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” (§ 46).
As to Article 10 of the Convention, the Court concluded that Mr Baka’s dismissal had been due to the criticism he had publicly expressed of government policy on judicial reform when he was President of the Supreme Court (§ 97), underlining that the fear of sanction, such as losing judicial office, could have a “chilling effect” on the exercise of freedom of expression and risked discouraging judges from making critical remarks about public institutions or policies (§ 101). To arrive to this conclusion the Court noted that the proposal to terminate the applicant’s mandate, as well as the new eligibility criterion for the post of President of Kúria were submitted to the Parliament after he had publicly expressed his views on the legislative reforms (§ 94). Moreover, the Court considered that the “facts and the sequence of events in their entirety corroborate the applicant’s version of events, namely that the early termination of his mandate as President of the Supreme Court was not the result of a justified restructuring of the supreme judicial authority in Hungary” ( § 96).
Behind the applicant’s complaints, what is really challenged in the present case is the choice of Hungary to proceed to a full-scale reorganization of its judicial system, legal policy choice that was adopted by the Hungarian Parliament. In a broader context, it is the new Hungarian Constitution that is attacked, a Constitution that rejects the communist heritage and the post-modern model of society. In 2011, ECLJ drafted a Memorandum on the new Constitution of Hungary showing its compatibility with the European human rights and international standards.
ECLJ hopes that the Grand Chamber of the Court will manifest more restraint and objectivity in judging issues that are tangent to the political will and sovereign choices for the society of a member State to the Convention.