Information Note on the Court’s case-law 224

December 2018

J.B. and Others v. Hungary (dec.) - 45434/12, 45438/12 and 375/13

Decision 27.11.2018 [Section IV]

Article 8

Article 8-1

Respect for private life

Dismissal of judges and prosecutors following lowering of compulsory retirement age: Article 8 not applicable; inadmissible

Facts – Since 1869 the age-limit for compulsory retirement of Hungarian judges had be en fixed at seventy. A similar rule had been in force as regards public prosecutors. In 2012 legislation was introduced providing that the service of judges and public prosecutors would terminate upon their reaching the general retirement age. The legislat ion was subsequently declared unconstitutional, the Constitutional Court observing that there was no single and generally applicable retirement age but different retirement ages for different generations. Subsequent legislative amendments reduced the compu lsory retirement age to a unified limit of sixty-five. The new law provided a range of remedial options to those judges and prosecutors who had already been affected by the rules of compulsory retirement.

The applicants, judges and prosecutors affected by the 2012 legislation, complained about the lowering of their mandatory retirement age and the consequences of that measure on their professional career and private life.

Law – Article 8 ( applicability ): The direct reason behind the applicants’ dismissal w as that they had reached the lowered mandatory retirement age applicable to them. Although a person’s age was obviously an aspect of his or her physical identity, it was at the same time an objective fact not capable of being influenced by freedom of choic e in the sphere of private life. It was appropriate in the applicants’ case therefore to follow a consequence-based approach and to examine whether the impugned measures had had sufficiently serious negative consequences for the applicants’ private life, i n particular as regards their “inner circle”, their opportunities to establish and develop relationships with others and their reputation.

The applicants contended, in general, that their dismissal had resulted in a sudden and very significant reduction in their income. They alleged that, due to the significant difference between the amount of their monthly retirement pension and their former remuneration, they had lost, over a time span of a few months, two-thirds to three-quarters of their monthly earning s. That situation had seriously threatened the material well-being of some applicants and their families. However, the Court had not been provided with any individualised information or detail, let alone any evidence, about the above-mentioned financial di fficulties – which, moreover, had proved to be temporary as the applicants had subsequently been able to obtain their unpaid remuneration. Two applicants had further complained that their dismissal had caused them health problems and emotional distress. Th ey had omitted, however, to provide details on those issues. In such circumstances, the Court could not but note the absence of any evidence suggesting that the “inner circle” of the aforementioned applicants’ private life had been seriously affected by th e impugned measures.

As to establishing and maintaining relationships with others, the applicants had all been reinstated either in their previous judicial post or in a stand-by post. Even if their situation among colleagues had been affected by their dism issal and subsequent reinstatement, there were no factual grounds, let alone evidence put forward by the applicants, that would indicate that such effects were so substantial as to constitute an interference with their rights guaranteed by Article 8.

There was no evidence of any individualised negative remarks made by the domestic authorities as regards the applicants’ professional performance or their personality, moral values or character. The applicants had not substantiated how criticisms towards t heir generation in general had affected the core of their individual reputation or had caused them serious prejudice in their professional or social environment. As regards certain applicants’ non reinstatement in fixed-term senior positions within the jud iciary or in other prestigious positions, in objective terms, the judicial function constituted the applicants’ fundamental professional role and their other positions, however important and prestigious they might have been and however they might have been subjectively perceived and valued by the applicants, did not relate to the principal sphere of their professional activity. The applicants at issue had not put forward any other specific personal circumstances indicating that the measure had had a serious impact on their private life.

Accordingly, measuring the applicants’ subjective perceptions against the objective background and assessing the material and non-material impact of their dismissal on the basis of the evidence presented before the Court, it had to be concluded that the negative effects which the impugned measures had had on the applicants’ private life had not crossed the threshold of seriousness for the issue to be raised under Article 8. The reasons for the applicants’ dismissal were not li nked to their “private life” to a sufficient degree within the meaning of Article 8, nor had the consequences of the impugned measures sufficiently affected their private life under that provision.

Conclusion : inadmissible (incompatible ratione materiae ).

(See also Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Information Note 221 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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