SECOND SECTION

Application no. 64239/12 László RAVASZ against Hungary lodged on 28 September 2012

STATEMENT OF FACTS

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

A. The circumstances of the case

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

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 .

He submits that in 2010 the president of the court put pressure on him in connection with a civil case he had been appointed to examine. He complained in person to the President of the Judicial Council about the unlawful pressure, to no avail.

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 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.

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.

On 12 April 2011 the applicant published a 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.

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.

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 (“Evening”), 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.

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.

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 were socialised in the former regime and represented an authoritarian attitude.

Meanwhile, on 5 May 2011 and subsequently on an unspecified date in August 2011, the applicant lodged complaints with the President of the Csongrád County Regional Court and the president 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 dismissed without an examination. On 28 November 2010 he lodged a petition with the European Parliament against the perceived abuse within the judiciary.

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.

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.

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 Venice Commission ’ s Opinion no. CDL-AD(2012)001 (see below, at its paragraph 84); 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 .

The applicant lodged a request for the removal of those officials on account of their alleged bias against him. On 15 September 2011 his request was rejected. On 9 January 2012 a second-instance panel consisting of Judges T., L. and T. dismissed the applicant ’ s request.

On 18 October 2011 the investigator submitted her preliminary findings to the First-Instance Service Court Chamber. The applicant maintains that he was not heard by the investigator.

The disciplinary proceedings were opened 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.

Dismissing his procedural complaints, o n 23 January 2012 the First-Instance Court held 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.

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.

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

In the ensuing second-instance disciplinary proceedings before the Second-Instance Service Court Chamber (attached to the Supreme Court ( Kúria )) – again consisting of Judges T., L. and 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.

The 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.

B. Relevant international law

Venice Commission ’ s Opinion no. CDL-AD(2012)001 contains the following passage:

“84. Several of the provisions of the [new] ALSRJ fail to offer necessary guarantees in disciplinary proceedings:

...

b) The chamber of three members - the so-called “service court chamber” – that deals with a disciplinary case, is established by the chair of the service courts. There should be an automatic case assignment system, in accordance with the principle of the “lawful judge”. ... ”

COMPLAINTS

The applicant, a former judge with the Csongrád County Regional Court , complains under Article 10 of the Convention that his dismissal from judicial office following his publications and statements in the media constituted a violation of his freedom of expression. In particular, he argues that he has been removed from his post because he publicly criticised the functioning of the judiciary, pointing out the alleged pressure exerted by supervisors and the lack of judicial independence.

The applicant further submits 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.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s judicial role relevant regarding the State ’ s margin of appreciation in this field (see on the one hand Wille v. Liechtenstein [GC], no. 28396/95, § 64, ECHR 1999 ‑ VII, and on the other hand Kudeshkina v. Russia , no. 29492/05, § § 98-100, 26 February 2009)?

2. Moreover, did the procedural anomalies perceived by the applicant have any repercussion on the proportionality of the interference complained of (see, mutatis mutandis , Steel and Morris v. the United Kingdom , no. 68416/01, § 95, ECHR 2005 ‑ II) ?

3. Were the disciplinary tribunals which dealt with the applicant ’ s case independent and impartial, as required by Article 6 § 1 of the Convention?