DISSENTING OPINION OF JUDGE PEJCHAL

To my regret, I have to dissent with regard to the finding of a violation of the Convention. I could not vote with the majority.

I can agree with the majority that this case is about freedom. But what is freedom? In his famous magnum opus Law, Legislation and Liberty , Friedrich Hayek stated as follows regarding the discipline of freedom:

“Man has not developed in freedom. The member of the little band to which he had had to stick in order to survive was anything but free. Freedom is an artefact of civilization that released man from the trammels of the small group, the momentary moods of which even the leader had to obey. Freedom was made possible by the gradual evolution of the discipline of civilization which is at the same time the discipline of freedom. It protects him by impersonal abstract rules against arbitrary violence of others, and enables each individual to try to build for himself a protected domain with which nobody else is allowed to interfere and within which he can use his own knowledge for his own purposes. We owe our freedom to restraints of freedom.”

I am convinced that the present case concerns the discipline of freedom. An individual who is one of the most senior representatives of the State must demonstrate the highest standard with regard to the discipline of freedom. Part of this discipline involves a strict separation of service to the community on the one hand, and one ’ s own interests on the other. The Convention protects (in Hayek ’ s words) all free citizens in a community “against arbitrary violence of others, and enables each individual to try to build for himself a protected domain with which nobody else is allowed to interfere and within which he can use his own knowledge for his own purposes”.

The present case is rather straightforward. The applicant – a holder of State power (in the form of judicial office) – freely chose the means (and the content) of his “official speeches” to comment on the situation of or changes to the Hungarian judiciary. Presumably, he acted to the best of his knowledge and belief. But this presumption can only be mere speculation. Nobody can know the real motivation for his actions.

Most probably his “official speeches” did not convince even the President of the Republic or the members of parliament when they reached the decision that, in future, one of the holders of State power (in the form of judicial office) would not be the applicant, but someone else. Again, however, this is mere speculation. The decision by the President of the Republic and the members of parliament could have had an entirely different motivation.

Moreover, it is to be observed that the applicant ’ s originally critical attitude was subsequently transformed into a supportive stance with regard to the action taken by the President of the Republic, the Government and the Parliament. How else can we explain the fact that the applicant ultimately accepted a high judicial function as “chairman of a civil bench of the Kúria ”, a post that he continues to hold?! (See paragraph 13 of the Government of Hungary ’ s memorial, dated 8 April 2015.)

In other words, no court (including an international court) can review, in the framework of the democratic rule of law, the reasons for the votes cast by the members of parliament in a free election. In my opinion, in the absence of a ruling by the Court on the free nature of the election in question, it is impossible to examine de facto the reasons for which a particular individual was elected to carry out the functions of the President of the Kúria . It is within the respondent State ’ s margin of appreciation to lay down the conditions that a candidate must fulfil in order to be able to run for the post of President of the Kúria .

It is possible to imagine a scenario in which, following the adoption of amendments to the Hungarian Constitution, the applicant would be nominated by the President of the Republic and elected by the members of parliament to functions (President of the Kúria , President of the National Judicial Office) held by other persons at the material time. In such a scenario, would it also be possible to find a violation of the Convention? I do not suppose so.

In my opinion, an international court established by the member States of an international organisation cannot de facto decide on the question of who may or may not hold the highest judicial office in a sovereign democratic State, governed by the rule of law, which has equal standing to the other member States of that international organisation.

I am profoundly convinced that the Court is unable to apply any Article of the Convention or the Protocols thereto in the present case. A judge of this Court must also fulfil his or her duty to abide by the discipline of freedom.