Information Note on the Court’s case-law 197

June 2016

Baka v. Hungary [GC] - 20261/12

Judgment 23.6.2016 [GC]

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Inability of Supreme Court President to contest premature termination of his mandate: Article 6 applicable; violation

Article 10

Article 10-1

Freedom of expression

Premature termination of Supreme Court President’s mandate as a result of views expressed publicly in his professional capacity: violation

Facts – The applicant, a former judge of the European Court of Human Rights, was elected President of the Supreme Court of Hungary for a six-year term ending in 2015. In his capacity as President of that court and of the National Council of Justice, he expressed his views on various legislative reforms affecting the judiciary. The transitional provisions of the new Constitution (Fundamental Law of Hungary of 2011) provided that the legal successor to the Supreme Court would be the Kúria and that the mandate of the President of the Supreme Court would end following the entry into force of the new Constitution. As a consequence, the applicant’s mandate as President of the Supreme Court ended on 1 January 2012. 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. Time served as a judge in an international court was not counted. This led to the applicant’s ineligibility for the post of President of the new Kúria.

In a judgment of 27 May 2014 (see Information Note 174 ), a Chamber of the Court held unanimously that there had been a violation of Article 6 § 1 of the Convention (right of access to court) because the applicant had been unable to contest the premature termination of his mandate. It also found a breach of the applicant’s right to freedom of expression under Article 10 after finding that the premature termination of the applicant’s mandate had been as a result of views expressed publicly in his professional capacity.

On 15 December 2014 the case was referred to the Grand Chamber at the Government’s request.

Law – Article 6 § 1

(a) Applicability

(i) Existence of a right – In accordance with the domestic law, the applicant’s mandate as President of the Supreme Court had been due to last for a period of six years, unless it was terminated following mutual agreement, resignation or dismissal. There had thus existed a right for the applicant to serve his term of office until such time expired, or until his judicial mandate came to an end. This was also supported by constitutional principles regarding the independence of the judiciary and the irremovability of judges. Accordingly, the applicant could arguably claim to have been entitled to protection against removal from office during his mandate. The fact that his mandate was terminated ex lege by the new legislation could not remove, retrospectively, the arguability of his right under the applicable rules in force at the time of his election.

(ii) Civil nature of the right – To determine whether the right claimed by the applicant was “civil”, the Court applied the criteria developed in the judgment Vilho Eskelinen and Others v. Finland ([GC], 63235/00, 19 April 2007, Information Note 96 ). As to the first condition of the Vilho Eskelinen test – whether national law expressly excluded access to a court for the post or category of staff in question – the Court observed that in the few cases in which it had found that condition to be fulfilled, the exclusion at stake had been clear and express. * However, in the present case the applicant had not been expressly excluded from the right of access to a court; instead, his access had been impeded by the fact that the premature termination of his mandate was included in the transitional provisions of the new legislation which had entered into force in 2012. This had precluded him from contesting the measure before the Service Tribunal, as he would have been able to do in the event of a dismissal on the basis of the previously existing legal framework. The Court was thus of the view that, in the specific circumstances of the case, it had to determine whether access to a court had been excluded under domestic law before, rather than at the time when, the impugned measure concerning the applicant was adopted. ** The Court further noted that in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it had to be compatible with the rule of law, which forbade laws directed against a specific person, as in the applicant’s case. In the light of these considerations, it could not be concluded that national law expressly excluded access to a court for a claim based on the alleged unlawfulness of the termination of the applicant’s mandate. The first condition of the Vilho Eskelinen test had not therefore been met and Article 6 was applicable under its civil head.

(b) Compliance – As a result of legislation whose compatibility with the requirements of the rule of law was doubtful, the premature termination of the applicant’s mandate was neither reviewed, nor open to review, by any bodies exercising judicial powers. Noting 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, were attaching to procedural fairness in cases involving the removal or dismissal of judges, the Court considered that the respondent State had impaired the very essence of the applicant’s right of access to a court.

Conclusion : violation (fifteen votes to two).

Article 10

(a) Existence of an interference – In previous cases concerning disciplinary proceedings, or the removal or appointment of judges, the Court had concluded that Article 10 was applicable as the impugned measures had been prompted by the applicants’ statements on a certain question and were not related to their eligibility for public service or their professional ability to exercise judicial functions. *** In other cases the Court had found that the measure complained of was unrelated to the exercise of freedom of expression. ****

In the present case, no domestic court had ever examined the applicant’s allegations or the reasons for the termination of his mandate. The facts of the case therefore had to be assessed and considered “in their entirety” and, in assessing the evidence, the Court adopted the standard of proof “beyond reasonable doubt”. In this connection, the Court noted that in 2011 the applicant, in his professional capacity as President of the Supreme Court and the National Council of Justice, had publicly expressed critical views on various legislative reforms affecting the judiciary. Despite the assurance given by two members of the parliamentary majority and the Government in the same year to the effect that the legislation being introduced would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime, the proposals to terminate the applicant’s mandate were made public and submitted to Parliament shortly after he gave a parliamentary speech in November 2011 and were adopted within a strikingly short time. Having regard to the sequence of events in their entirety, there was prima facie evidence of a causal link between the applicant’s exercise of his freedom of expression and the termination of his mandate. Thus, the burden of proof shifted to the Government.

As to the reasons put forward by the Government to justify the impugned measure, it was not apparent that the changes made to the functions of the supreme judicial authority or the tasks of its President were of such a fundamental nature that they could or should have prompted the premature termination of the applicant’s mandate. Consequently, the Government had failed to show convincingly that the impugned measure was linked to the suppression of the applicant’s post and functions in the context of the reform of the supreme judicial authority. Accordingly, it could be presumed that the premature termination of the applicant’s mandate was prompted by the views and criticisms he had publicly expressed in his professional capacity, and thus constituted an interference with the exercise of his right to freedom of expression.

(b) Whether the interference was justified – Although it was doubtful that the legislation in question complied with the requirements of the rule of law, the Court proceeded on the assumption that the interference was prescribed by law. State Parties could not legitimately invoke the independence of the judiciary in order to justify a measure such as the premature termination of the mandate of a court president for reasons that had not been established by law and which did not relate to any grounds of professional incompetence or misconduct. In these circumstances, the impugned measure appeared to be incompatible with the aim of maintaining the independence of the judiciary.

In the present case, the impugned interference had been prompted by criticisms the applicant had publicly expressed in his professional capacity as President of the Supreme Court and of the National Council of Justice. It was not only his right but also his duty to express his opinion on legislative reforms which were likely to have an impact on the judiciary and its independence. The applicant had expressed his views and criticisms on questions of public interest and his statements had not gone beyond mere criticism from a strictly professional perspective. Accordingly, his position and statements called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the domestic authorities. Furthermore, he was removed from his office more than three years before the end of the fixed term applicable under the legislation in force at the time of his election. This could hardly be reconciled 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 was a key element for the maintenance of judicial independence. The premature termination of the applicant’s mandate undoubtedly had a chilling effect in that it must have discouraged not only him but also other judges and court presidents in future from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary. Finally, in the light of the Court’s findings under Article 6 § 1, the impugned restrictions had not been accompanied by effective and adequate safeguards against abuse. In sum, the reasons relied on by the respondent State could not be regarded as sufficient to show that the interference complained of was necessary in a democratic society.

Conclusion : violation (fifteen votes to two).

Article 41: EUR 70,000 in respect of pecuniary and non-pecuniary damage.

* Suküt v. Turkey (dec), 59773/00, 11 September 2007, Information Note 100 ; and Nedeltcho Popov v. Bulgaria , 61360/00 , 22 November 2007. ** The Court observed that to hold otherwise would mean that the impugned measure itself, which constituted the alleged interference with the applicant’s “right”, could at the same time be the legal basis for the exclusion of the applicant’s claim from access to a court. This would open the way to abuse, allowing Contracting States to bar access to a court in respect of individual measures concerning their public servants, by simply including those measures in an ad hoc statutory provision not subject to judicial review. *** Wille v. Liechtenstein [GC], 28396/95, 28 October 1999, Information Note 11 ; and Kudeshkina v. Russia , 29492/05, 26 February 2009, Information Note 116 . **** Harabin v. Slovakia (dec.), 58688/11 , 29 June 2004; and Harabin v. Slovakia , 58688/11, 20 November 2012, Information Note 157 .

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

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