SECOND SECTION

DECISION

Application no . 64239/12 László RAVASZ against Hungary

The European Court of Human Rights ( Second Section ), sitting on 7 October 2014 as a Chamber composed of:

Guido Raimondi , President, András Sajó , Nebojša Vučinić , Helen Keller , Paul Lemmens , Egidijus Kūris , Jon Fridrik Kjølbro , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 28 September 2012 ,

Having regard to the Government ’ s observations and the applicant ’ s observations in reply,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr László Ravasz, is a Hungarian national, who was born in 1962 and lives in Szeged. He was represented before the Court by Mr L. Baltay, a lawyer practising in Gyál.

2. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent , Ministry of Public Administration and Justice.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background of the case and the applicant ’ s utterances

4. At the material time the applicant had been working as a judge for 24 years. From 1 November 1993 until May 2012 he held judicial office at the Csongrád County Regional Court.

5. On 9 April 2011 the applicant published a post on an internet news portal, stating that the judiciary was in crisis of a kind that undermined the rule of law. He pointed out that the judiciary lacked legitimacy and had lost credibility amongst the public, and was characterised by internal personal conflicts. According to him, many of the judges at higher courts lacked the necessary professional competence and their promotion was merely dependent on their supervisors. He also criticised the fact that many of the judges at higher courts had obtained their qualifications during the previous regime, which affected their sense of decision-making. He further maintained that judicial independence was not ensured due to the way cases were assigned to the judges and their interpersonal relations. Mentioning two recent cases in which he had participated as plaintiff, including their file numbers and the courts, he made an analysis of the alleged judicial errors and made criticism of the attitude of the judges in charge.

6. On 11 April 2011 the applicant – in reaction to an open letter signed by the respective Presidents of the Judicial Council, the Supreme Court, the regional and the appeal courts protesting against the planned forced early retirement of 290 judges – posted on the same internet portal a further publication arguing with the contents of the letter. In support of the planned measure, he observed that it targeted the top of the judicial hierarchy and was unfavourable only to the judges appointed during the former regime.

7. On 12 April 2011 the applicant published further writings on the news portal , asserting that some lower instance courts and certain junior judges were being put under pressure by the hierarchy concerning individual cases and that the judiciary as a whole was under political influence.

8. On 11, 12, 13 April and 28 May 2011 the applicant published several writings, articles and opinions in a daily newspaper, Magyar Hírlap . In substance, he reiterated his opinion and arguments posted on the web portal pointing out that the structure of the judiciary could not ensure judicial independence, and was prone to abuse and unlawful pressure on how particular cases were decided.

9. Moreover, on 11 April 2011 the applicant gave two interviews to MTV1 television channel. Both in the prime-time news programme and the late-night debate Este , these interviews were broadcast live. The applicant mainly raised criticism as to the power attributed to the court presidents , which in his view constituted an obstacle to judicial independence.

10. On 12 April 2012 MTV1 broadcast, in the early morning news programme, another interview with the applicant. He explained that democratic changes would be necessary in the judicial system since persons holding certain positions in the current system influenced its entire functioning.

11. On the same day he gave a further interview to MR1 radio station, again explaining that the organisational structure of the judiciary did not ensure judicial independence, the heads of the courts were appointed without any further control, and the way cases were assigned to judges was problematic. Still on the same day, in an interview broadcast by HírTV television channel, he again pointed out the lack of independence and argued that at higher courts judges had been socialised in the former regime and represented an authoritarian attitude.

12. Meanwhile, in May and August 2011, the applicant lodged complaints with the President of the Csongrád County Regional Court and the P resident of the National Judicial Council, requesting them to put an end to exerting unlawful pressure on judges and to the abuse of power by the court presidents. His complaints were di smissed without an examination.

2. Disciplinary proceedings against the applicant

13. On 5 July 2011 the President of the Csongrád County Regional Court initiated disciplinary proceedings against the applicant, by sending a request to that end to the President of the competent Budapest Court of Appeal. She alleged that in his publications and statements the applicant had insulted the court system, undermined the dignity of the judges and misled the public by suggesting that the judiciary was unable to fulfil its constitutional role. The applicant submits that this request was classified as “sensitive” and was not served on him, since he refused to sign a declaration of secrecy.

14. In the ensuing disciplinary proceedings, on 11 July 2011 the President of the First Instance Service Court Chamber (attached to the Budapest Court of Appeal) appointed an investigator and the members of the chamber in charge of the applicant ’ s case.

15. The applicant submits that the members of the chamber were appointed arbitrarily, that is, without any assignment order being in place. In his view, this was a breach of the principle of “lawful judge” and thereby contravened the Venice Commission ’ s Opinion no. CDL-AD(2012)001; although this Opinion concerns Act no. CLXII of 2011 on the Legal Status and Remuneration of Judges (“the new ALSRJ”) which entered into force on 1 January 2012, the criticism contained therein is equally valid in respect of Act no. LXVII of 1997 on the Legal Status and Remuneration of Judges (“the old ALSRJ”), which contained identical rules in this respect and was applied in the applicant ’ s case .

16. The applicant lodged a request for the exclusion of the First-Instance Service Court on account of the alleged bias of the judges against him. On 9 January 2012 a second-instance panel consisting of Judges B. T., Gy. L. and K. T. dismissed the applicant ’ s request.

17. Meanwhile, on 10 and 17 October 2011 the investigator held preliminary hearings which the applicant did not attend. O n 18 October 2011 the investigator submitted her preliminary findings to the First Instance Service Court Chamber.

18. The disciplinary proceedings commenced on 2 November 2011.

During the first instance disciplinary proceedings the applicant filed numerous procedural objections, amongst others about the non-notification of the request initiating the disciplinary proceedings, and about the fact that the investigator had not questioned him in person before the submission of her preliminary findings.

19 . Dismissing his procedural complaints, o n 23 January 2012 the First Instance Service Court held , after a hearing, that the applicant had committed a disciplinary offence in violation of section 28 (1) and (2) and section 29 (1) of the old ALSRJ.

It was found that he had disclosed information to the public on court cases without prior authorisation and that his conduct undermined the prestige and the credibility of the judiciary. Moreover, he had made political declarations in breach of section 22 (1) of the old ALSRJ. In the decision it was established, in particular, that the applicant had made factual declarations about the deep crisis in the judiciary, the personal and professional conflicts between the first and higher instance courts, the influence of the former regime on the attitude and decision-making of certain judges, and the undisguised pressure from the court presidents. The court observed, inter alia , that the applicant ’ s statements disseminated in civil society the false image that the judiciary was unable to fulfil its constitutional role, its managers were politically biased and their decisions reflected political interests, the heads of courts exercised constant pressure on judges, promotion was not based on merit, and most of the judges at higher courts were unqualified.

20. In the face of these findings, the applicant ’ s office as a judge was terminated as a disciplinary sanction, in accordance with section 79 (1) of the old ALSRJ.

21. The applicant filed an appeal against the decision, challenging both the alleged procedural errors and the merits of the decision.

22. In the ensuing second instance disciplinary proceedings before the Second Instance Service Court Chamber (attached to the Kúria ) – again consisting of Judges B. T., Gy. L. and K. T. – the applicant filed an objection against the presiding judge, claiming that he was biased; his motion was dismissed on 20 February 2012. Moreover, h e submits that two members of the committee of the second-instance court had participated in the first-instance proceedings; however, it is not known whether he complained about this. The Second Instance Service Court Chamber refused to examine the applicant ’ s further interlocutory objections against alleged procedural errors since they could only be examined in the final decision on the merits.

After holding a hearing, t he Second Instance Service Court Chamber dismissed the appeal on 29 March 2012. The court explained that freedom of expression in the case of members of the judiciary could be restricted for the protection of public trust in the judiciary.

The applicant was removed from office on 24 May 2012.

3. Proceedings before the Constitutional Court and remittal of the case to the service courts

23. Meanwhile, on 16 April 2012 the applicant had lodged a constitutional complaint arguing that the disciplinary proceedings had not ensured the guarantees of a fair and impartial trial and that his dismissal for having published certain articles on the functioning of the judiciary infringed his right to freedom of expression.

On 24 June 2013 his complaint was declar ed admissible by the Constitutional Court.

24. On 7 July 2014 the Constitutional Court gave a decision, finding a violation of the applicant ’ s constitutional right to an impartial and fair trial. I t quashed the decisions previously taken in the case for being unconstitutional and remitted the case to the service courts.

25. The resumed disciplinary proceedings are still pending before the domestic courts.

COMPLAINTS

26. The applicant complained under Article 10 of the Convention that his dismissal from judicial office following his publications and statements in the media had constituted a violation of his freedom of expression. In particular, he argued that he was removed from his post because he had publicly criticised the functioning of the judiciary and the lack of judicial independence.

27. The applicant further submitted that the disciplinary proceedings did not comply with the requirements of Article 6 in that he was not informed about the ‘ charges against him ’ , the investigator failed to hear him in person, the chamber in charge of his case was appointed in breach of the principle of the “lawful judge”, and members of the second-instance court had participated in the first-instance proceedings.

28 . On 23 July 2014 the applicant submitted that, in view of the Constitutional Court ’ s decision, he withdrew his complaints originally submitted under Article 6 § 1.

THE LAW

29 . The applicant complained under Article 10 of the Convention about his disciplinary dismissal from judicial office following his publications and statements in the media. He further maintained that the disciplinary proceedings fell short of the guarantees of Article 6.

30 . The Court notes that the applicant subsequently withdrew his Article 6 complaints, having regard to the fact that the disciplinary case was again pending before the service courts. It considers therefore that this part of the application should be struck out under Article 37 § 1 (a), no public policy reason requiring the continued examination of these issues for the purposes of Article 37 § 1 in fine .

31. As to the remainder of the application, the Government submitted that, the Constitutional Court had quashed the impugned decision and remitted the case to the service courts, the case was pending again; therefore, the applicant ’ s Article 10 complaints were premature, since it might well be the case that the service courts would reach a conclusion other than the one in the previous proceedings.

The applicant contested these views in general terms.

32. The Court observes that on 7 July 2014 the Constitutional Court found a violation of the applicant ’ s constitutional right s, quashed the decisions complained of and remitted the case to the service courts. The proceedings are currently pending. In these circumstances, the Court is satisfied that the complaint is premature and must be rejected, pursuant to Article 35 §§ 1 and 4.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in a ccordance with Article 37 § 1 (a ) of the Convention, in so far as it concerns the complaint about the fairness of the disciplinary proceedings;

Declares the remainder of the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President