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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1280/H46-15 |
10 March 2017 |
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1280th meeting, 7-10 March 2017 (DH) Human rights
H46-15 Baka v. Hungary (Application No. 20261/12) Supervision of the execution of the European Court’s judgments Reference document: |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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20261/12 |
BAKA |
23/06/2016 |
Grand Chamber |
Complex problem |
Case description
The case concerns the violation of the applicant’s right of access to a court on account of the lack of any form of judicial review to challenge the premature termination of his mandate as President of the Hungarian Supreme Court (violation of Article 6 § 1).
The applicant had served as a judge at the European Court from 1991 to 2008 and subsequently as a judge in Hungary. In 2009 he was elected as President of the Supreme Court for a six-year’ term, until 22 June 2015. As a consequence of the entry into force of certain constitutional and legislative amendments, the termination of his mandate came into effect on 1 January 2012 (i.e. three and a half years before its normal date of expiry) when the new Kúria became the legal successor to the Supreme Court. On 13 December 2011, Parliament had elected the new president of the Kúria (for nine years), and shortly before, on 9 November 2011, a new criterion was introduced as regards the eligibility for the post of President of the Kúria requiring a candidate to have served at least five years as a judge in Hungary. Time served as judge in an international court was not counted, which resulted in the applicant’s ineligibility for the post of President of the new Kúria (see §§ 146-147). The applicant remained in office as president of a civil-law division of the Kúria (see § 34).
The European Court also found that the premature termination of the applicant’s mandate was prompted by the views and criticisms of legislative reforms affecting the judiciary, publicly expressed by him in his professional capacity, and therefore violated his freedom of expression (violation of Article 10).
Status of execution
The authorities submitted an action report (DH-DD(2017)15) on 14 December 2016.
Individual measures:
The just satisfaction awarded by the Court in respect of all heads of damage costs and expenses was paid on time. The authorities argued that no further individual measure was necessary as the applicant’s original term of office as President of the Supreme Court had already expired before the judgment was delivered by the European Court and the latter did not indicate any required measure.
General measures:
The judgment was translated and published on the website of the government. The authorities submitted that no further general measure was necessary because the violation found by the Court resulted from a one-off constitutional reform of the Hungarian judicial system.
Analysis by the Secretariat
I. Individual measures:
As regards the just satisfaction awarded, the Court observed in its judgment that “without speculating on the exact amount of the salary and the benefits which the applicant would have received if the violations of the Convention had not occurred and if he had been able to remain in the post of President of the Supreme Court until the end of his term, […] the applicant has incurred pecuniary loss” (see § 191). It also considered that “the applicant must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy”. Therefore the Court awarded the applicant an aggregate sum of EUR 70,000 just satisfaction in respect of all heads of damage combined as well as EUR 30,000 in respect of costs and expenses.
The Hungarian authorities submitted that no other individual measures were necessary apart from the payment of the just satisfaction awarded.
As pointed out in their submission, the Court did not make any indications in its judgment as regards individual measures. However, irrespective of the lack of such indications, in accordance with the basic principles of the Convention as evidenced by the long standing practice of the Committee of Ministers, the respondent State is under an obligation to erase the consequences of the violations suffered by an applicant so as to restore, as far as possible, the previous status which might have existed if the wrongful act had not occurred (restitutio in integrum).
It is not set out in the Hungarian authorities’ submission that the consequences of the violations suffered by the applicant have been fully erased and/or why no further individual measures, apart from the payment of the just satisfaction awarded by the Court, (such as, by way of example, the applicant’s reinstatement into president’s office), are required or possible. In the alternative, the Hungarian authorities should inform the Committee of the further individual measures which will be taken to comply with this obligation. Explanations are in particular awaited as regards the applicant’s eligibility (in repeated or future elections) for the post of the President of the Kúria, which may require, for example, the lifting of the new eligibility criterion or the establishment of regulations of equivalence between national and international functions of judges (see §§ 59 and 17).
The Committee might wish to invite the Hungarian authorities to provide adequate explanations and concrete information on these questions.
II. General measures:
1) Right of access to a court (Article 6 § 1):
The premature termination of the applicant’s mandate as President of the Supreme Court was provided for in the transitional provisions of the Organisation and Administration of the Courts Act as well as included in the Transitional Provisions of the Fundamental Law (both in force since 1 January 2012). Therefore, this measure “was not reviewed, nor was it open to review, by an ordinary tribunal or other body exercising judicial powers” (see §§ 115, 121).
It should be recalled in this context that the Court noted “the growing importance which international and Council of Europe instruments, as well as the case-law of international courts and the practice of other international bodies, are attaching to procedural fairness in cases involving the removal or dismissal of judges, including the intervention of an authority independent of the executive and legislative powers in respect of every decision affecting the termination of office of a judge” (see § 121).
To prevent further similar violations it is crucial to ensure that any measures leading to the removal or dismissal of judges will be open to effective review in their entirety by an ordinary tribunal or other body exercising judicial powers, such as, for example, the Constitutional Court. In this context, it is important to note that the Court emphasised that the lack of judicial review in the present case was the result of legislation whose compatibility with the requirements of the rule of law was doubtful (see §§ 117 and 121). Information is expected in this respect.
2) Freedom of expression (Article 10):
The applicant was removed from office as President of the Supreme Court on account of views and criticisms of legislative reforms affecting the judiciary that he had expressed and which had not gone beyond mere criticism from a strictly professional perspective (§ 171). The Court emphasised that the applicant’s removal was hardly reconcilable with the “particular consideration to be given to the nature of the judicial function as an independent branch of State power and to the principle of the irremovability of judges, which – according to the Court’s case-law and international and Council of Europe instruments – is a key element for the maintenance of judicial independence” (see § 172 and the references there).
It appears necessary, therefore, for the Hungarian authorities to provide information on the measures taken or envisaged to guarantee that there will be no further premature removals of judges on similar grounds as well as information on “effective and adequate safeguards against abuse” (§ 174) that have been or will be put in place. Moreover, information is awaited on the measures taken or envisaged to lift and countervail the “chilling effect” that the premature termination of the applicant’s mandate undoubtedly had on him as well as on other judges and court presidents (§ 173)
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Financing assured: YES |