MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1355/H46-11

25 September 2019

1355th meeting, 23-25 September 2019 (DH) Human rights   H46-11 Baka group v. Hungary (Applications No. 20261/12, 22254/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2017)15, DH-DD(2017)1290, DH-DD(2017)1291, DH-DD(2019)737, CM/Del/Dec(2017)1280/H46-15

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
20261/12	BAKA	23/06/2016	Grand Chamber	Complex problem
22254/14	ERMÉNYI	22/11/2016	22/02/2017

Case description

These cases concern the undue and premature termination of the applicants’ mandates as President (Baka case) and Vice-President (Erményi case) of the former Hungarian Supreme Court (both positions of more judicial than administrative character) through ad hominem legislative measures adopted in the context of a major reform of the judiciary. In the first case the legislative act was of constitutional rank and thus not subject to review by the Constitutional Court, whereas in the second case it was of ordinary rank and subject to such review. In the first case the Court found violations of the applicant’s right of access to court and freedom of expression, and in the second, of the applicant’s right to respect for private life (Articles 6, 8 and 10 of the Convention)

In the Baka case, the premature termination, via ad hominem legislative measures of the applicant’s term of office as of 1 January 2012 was found to have violated his right of access to a court as guaranteed by Article 6 § 1 because of the absence of judicial review. The Court found that these measures had been prompted by the views and criticisms expressed by the applicant on issues of public interest (planned major reform of the judicial system) and had violated Article 10 as they had not pursued any legitimate aim linked to the judicial reform at issue, nor had the measures been necessary in a democratic society. As to the latter aspect the Court considered that they had not been the object of any strict scrutiny and could hardly be reconciled with judicial independence and the irremovability of judges. The Court also found that the impugned measures had a “chilling effect”, discouraging not only the applicant, but also “other judges and court presidents […] from participating in public debate on […] issues concerning the independence of the judiciary” (§ 173). As to the procedural aspect of Article 10 it found that the restrictions imposed on the exercise of his right to freedom of expression had not been accompanied by efficient and adequate safeguards against abuse. In the Erményi case, the Court found, referring to its findings in the Baka case, a violation of Article 8 as the ad hominem legislation similar to that at issue in the Baka case but remaining of legislative rank, had also not pursued any legitimate aim linked to the reform.

Status of execution

Individual measures

In Baka, the just satisfaction awarded by the Court in respect of pecuniary and non-pecuniary damage (EUR 70,000) and costs and expenses (EUR 30,000) was paid on time. In their initial action report submitted in December 2016 (DH-DD(2017)15) the authorities argued that no further individual measures were necessary because no such measure had been indicated by the Court and the applicant’s original term of office had already expired before the Court’s judgment was delivered.

At its 1280^th meeting (March 2017) the Committee, noting that the requirement of restitutio in integrum applies equally in the absence of an indication of individual measures by the Court, invited the authorities “to set out the measures taken or envisaged fully to erase the consequences of the violations suffered by the applicant” (CM/Del/Dec(2017)1280/H46-15). In response, the authorities reiterated their previous arguments and added:

-       as regards the financial consequences of the violations, that those consequences were fully redressed by the just satisfaction, as “the Court determined [its] amount […] in the light of the fact […] that the applicant had suffered a loss of earnings of about EUR 60,000”, awarded a sum covering all heads of damage combined, and dismissed the remainder of the claim for just satisfaction;

-       as regards the applicant’s reinstatement, that no further individual measures were possible because the position of the President of the Kúria is not vacant and by the time the mandate of the Kúria’s incumbent President expires in January 2021, the applicant (who remained in office as president of a civil-law division of the Kúria) will have reached the mandatory retirement age.

In Erményi, the applicant died before the delivery of the Court’s judgment. The just satisfaction awarded by the Court in respect of pecuniary and non-pecuniary damage (EUR 20,000) and costs and expenses (EUR 5,000) was paid on time to the applicant’s heirs. The authorities considered that therefore no further individual measures were necessary.

General measures

At the first more detailed examination of the case at its 1280^th meeting (March 2017) the Committee requested information from the authorities on:

-       “the provision of a complete and effective right to review, by an ordinary tribunal or other body exercising judicial powers, of any measure leading to the removal or dismissal of a judge,

-       the measures taken or envisaged to guarantee that there will be no further premature removals of judges on similar grounds, including the establishment of effective and adequate safeguards against abuse in this regard,

-       the measures taken or envisaged to lift and countervail the “chilling effect” of the violations in the instant case”.

The information provided by the authorities in response (DH-DD(2019)737) may be summarised as follows:

-       Judicial review of judges’ dismissal from judicial service or removal from an executive position: Disputes related to the judicial service have been open to judicial review both under the legislation in force prior to 2012 and under the rules currently applicable.[1] The review is exercised by the Service Tribunal or, in certain types of cases, by ordinary administrative and labour courts.

The only exception concerns the President of the Kúria who is excluded from those remedies, in respect of his removal from that executive position (impeachment), according to the new 2011 Organisation and Administration of Courts Act, in force since 1 January 2012. He or she is directly elected by Parliament and enjoys a special constitutional status. Impeachment may be proposed by the President of the Republic and the final decision is taken by Parliament. The authorities argued that such possibility of “expressly excluding access to court” in similar situations was explicitly foreseen in the Court’s Eskelinen case-law.[2]

If a removal results directly from sub-constitutional level legislation (as in the case of Erményi) the person concerned may challenge it by means of a constitutional complaint. In case a removal results from constitutional-level legislation, the Constitutional Court can only review that legislation with respect to the procedural requirements set out in the Fundamental Law pertaining to the adoption and the promulgation of the Fundamental Law and any amendment thereof.[3] The Constitutional Court, however, cannot exercise substantive review over the Constitution.

-       Safeguards against further similar premature removals:

The authorities reiterated that the violations found in the cases at hand resulted from a one-time constitutional reform.

As an illustration of Hungary’s general commitment to complying with the Convention’s requirements, they argued that they had either reinstated or compensated the judges who had been relieved from judicial service in 2011 to 2013 following a lowering of their compulsory retirement age, and that this redress was accepted by the Court in a recent inadmissibility decision.[4]

-       Measures addressing the “chilling effect” caused by the violations:

The authorities argued that the violations concerned only the President and Vice-President of the Supreme Court and thus had no “chilling effect” on other court executives or judges in general.

The Committee of Ministers also received a communication submitted under Rule 9.2 by an NGO (Hungarian Helsinki Committee) on 5 August 2019, to which the Hungarian authorities replied on 16 August 2019 (DH-DD(2019)877). The Hungarian Helsinki Committee referred to the “chilling effect” and argued that retaliatory measures against judges expressing criticism on matters affecting the judiciary continued to exist. They further referred to other forms of ongoing challenges to judicial independence (plans of reform for the administrative court system) and pointed to the lack of guarantees for unlawfully removed judges to be reinstated into their previous position. The Government were of the opinion that none of the issues raised by the NGO submission fell under the scope of the Court’s judgments in question.

Analysis by the Secretariat

I. Individual measures

1) The case of Baka

In accordance with the latest information received from the authorities no agreement was reached between the applicant and the Government as regards individual measures. The Committee thus needs to verify if the consequences of the violations found by the Court have been erased to the extent possible.

The most evident form of restitutio in integrum, taking into account the special requirements which flow from the Convention principle of judicial independence, would have been the applicant’s reinstatement. However, States’ legal obligation to restore the situation existing before a breach applies only as far as possible. In the present case, more than four years prior to the Court’s judgment, the President of the Kúria (the legal successor to the Supreme Court) was elected for a term of office expiring in 2021. By that date, the applicant will have reached the mandatory retirement age. In such circumstances, the applicant’s reinstatement does not appear possible.

At the same time, the impossibility of reinstatement stresses the need for full monetary compensation. It is recalled that the Court determined the amount of just satisfaction for the consequences of the applicant’s early removal (set out in §§ 36-37), “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” (§ 191). In the light of the relevant general principles, it is thus the State Party who is under an obligation not just to pay the sums awarded by way of just satisfaction, but also to take all other individual measures required to provide redress to the extent possible for all the effects of the violation.[5] Therefore, the Committee might wish to request further information from the authorities as to the avenues open to the applicant to seek and obtain full compensation.

2) The case of Erményi

Given that the applicant died, and that the just satisfaction awarded by the Court was duly paid to his heirs, no issue of reinstatement or other individual measure arises. The Committee may thus wish to close the supervision of this case.

II. General measures

The information provided by the authorities on the general availability of judicial review in connection with disputes related to the judicial service or judicial office in general, including disciplinary actions, is noted with interest.

The main outstanding issues appear to be related to the Baka case and to the situations where judicial review is not available, or may not be effective in so far as a judge unlawfully dismissed from a judicial office may not have a right to be reinstated in office (see point 1 below) and to the “chilling effect” on judges’ and court presidents’ freedom of expression (see point 2 below).

1)     Judicial or other independent review of the termination of a judicial mandate, safeguards against abusive removals

It is recalled from the outset that the absence of effective and adequate procedural safeguards against the premature termination of the mandate of the President of the Supreme Court was found to be in breach of not only Article 6 but also of Article 10. The authorities’ reference to the Eskelinen criteria, which are only relevant for determining, in the concrete circumstances of a particular case, the applicability of Article 6, thus do not in any way affect the necessity of safeguards against abusive interferences with judges’ freedom of expression.

In Baka, under Article 6, the Court took issue with the fact that “the premature termination of the applicant’s mandate as President of the Supreme Court was not reviewed, nor was it open to review, by an ordinary tribunal or other body exercising judicial powers” (§ 121). It emphasised that the concept of rule of law, which is inherent in all the Articles of the Convention, required that any interference must in principle be based on an instrument of general application (§ 117). The Court noted the growing importance attached to “procedural fairness in cases involving the […] removal 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” (§ 121, emphasis added).[6] It found accordingly that, by terminating the applicant’s office as President of the Supreme Court through ad hominem legislation not subject to judicial review, the State had impaired the very essence of the applicant’s right of access to a court (§ 121).

Under Article 10 the Court concluded that the impugned restrictions imposed by Parliament on the applicant’s freedom of expression had not been accompanied “by effective and adequate safeguards against abuse” (§ 174).

The possibility of new interferences by Parliament, notably in judges’ freedom of expression, cannot be excluded. Indeed, Parliament has today clearly become competent to divest, without judicial review, the President of the Kúria from office for reasons which may well have freedom of expression or other fundamental rights dimensions,[7] and there appears to continue to be an absence of guarantees against ad hominem constitutional-level legislation. In light of this, the current absence of any recognised judicial or other independent control of such interferences is a major source of concern which needs to be addressed.

The urgency of action is reinforced by the numerous complaints reported regarding continuing interferences with judges’ freedom of expression and independence, with further “chilling effects” (see below).

In the light of the above, the Committee might wish to receive information on measures adopted or planned with a view to guaranteeing that any future decision terminating a judicial office, including that of the Kúria’s President, be accompanied by the necessary safeguards in proceedings before an independent body, even if the termination is linked with ad hominem legislative acts of constitutional rank or individual decisions of Parliament.

In this respect, the authorities may notably wish to draw inspiration from the measures adopted in Liechtenstein following the Wille judgment[8], whereby a violation of a judge’s freedom of expression, even if originating in discretionary powers vested by the Constitution in the highest level of State authority, became subject to court review as to its conformity with the Convention so as to provide necessary guarantees against abuse.

In this context, the Baka case also raises issues related to the effectiveness of remedies as there appears to be no procedure available to ensure, to the extent possible, that a President of the Kúria – or any other judge, it would appear – removed from office for reasons he or she claims to be in violation of the Convention has a right to reinstatement if the removal is found contrary to the Convention or other domestic law. The Committee might wish to invite the authorities to provide information also in this respect.

2)     “Chilling effect” of the violations notably on judges’ freedom of expression

The government’s argument that the violations concerned only the President and Vice-President of the Supreme Court and thus had no “chilling effect” on other court executives or judges in general is contradicted by the Court’s findings in the judgment itself which clearly referred to its effect on other judges and court presidents (see the case description).

Numerous reports suggest that the “chilling effect” highlighted by the Court has not been addressed, rather to the contrary aggravated, especially as regards the possibility to participate in discussions on issues related to the independence of the judiciary. It is recalled in this context that the Court stressed the importance of judges’ participation in such debates and referred to Council of Europe instruments recognising “that each judge is responsible for promoting and protecting judicial independence […] and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system” (Baka, § 168).

Reports thus indicate problems encountered by judges expressing critical opinion. Members of the National Judicial Council (a body tasked with supervising the President of the National Judicial Office [PNJO], an official elected by Parliament with extensive competence with regard to central court administration, judicial careers and the appointment of court presidents) were reportedly subjected to disciplinary proceedings, threats and retaliatory actions initiated by the PNJO and court presidents appointed by her after having criticised the practice of the PNJO.[9] Judges have also been subject to attacks in a series of articles, published in government-friendly newspapers and media outlets.[10] Allegedly, when members of the Association of Hungarian Judges also expressed criticism against the PNJO, this latter took retaliatory actions against the association and a court president tried to achieve that members of the association be discouraged from maintaining their membership.[11] In this connection the Council of Europe Commissioner for Human Rights stressed that “judges should not only be free from undue influences outside the judiciary, but also from instructions or pressures from fellow judges and their superiors”.[12]

In such circumstances, the Committee might wish to reiterate its last decision and urge the Hungarian authorities to provide information on the measures envisaged, over and above the guarantees to be provided under point 1 above, to counter the general “chilling effect” denounced by the Court in order to fully guarantee and safeguard judges’ independence and freedom of expression and dispel the existing concerns about an aggravation of the situation. A greater measure of control over the extensive competence of the PNJO would appear to be of major interest in this connection.

Financing assured: YES