DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I fully agree with the majority that judicial independence is a fundamental standard for a State governed by the rule of law. Nonetheless, although in my view there has been an unjustified interference with judicial independence in the instant case, I have voted, for the reasons set forth below, against finding a violation of the applicant ’ s subjective rights under the Convention.

2. The existing paradigm of human rights protection is based on a clear distinction between the individual and the public authorities. The aim of the European Convention on Human Rights, and of other international human rights treaties, was to protect the subjective rights of individuals against public authority. This human rights protection paradigm developed in the context of the European legal tradition (see the references to a “common understanding and observance” of human rights and a “common heritage of political traditions” in the Preamble to the Convention). This legal tradition encompasses a certain number of deeply rooted fundamental concepts and distinctions. One should note here, in particular, the distinctions between: (1) official and private actions; (2) objective law and subjective rights; and (3) the Constitution and infra-constitutional legal rules. The approach adopted by the majority in the instant case sets aside those fundamental legal concepts and distinctions, and substantially transforms the paradigm of human rights protection in Europe.

3. The applicant in the instant case held the offices of President of the Supreme Court and President of the National Council of Justice in Hungary. Before the 2011 constitutional reform the President of the Supreme Court exercised mainly administrative powers, but also had certain powers related to the judicial function. He also represented the Supreme Court and performed certain tasks on its behalf. In particular, the President of the Supreme Court was entitled to speak for the Supreme Court and to take the floor in the Hungarian Parliament.

4. The applicant complains about State interference with actions undertaken in his official capacity. He does not complain about any interference with acts undertaken by him in a private capacity.

In cases where an applicant holds public office it is necessary to distinguish between the private person (the holder of the office) and the State organ in question (the office held). A person holding a public office may act either in an official capacity or in a private capacity. This distinction is much easier to draw in the case of collegial State organs, where a collective act or utterance is typically an official act, although one cannot exclude the possibility that on certain occasions members of a State organ may collegially perform private acts. In the case of single-person State organs, it may be much more difficult to draw a clear line between acts undertaken by an individual in his or her private capacity, on the one hand, and the actions of the State organ itself, on the other. Personal views may then more easily influence the content of official acts.

It is important to stress that when acting in a private capacity an individual may undertake freely any actions which are not forbidden by law, and may pursue any interests that he or she wishes, including the most selfish ones. An individual acting in the capacity of a State organ may only undertake actions which are authorised by law and is under an obligation to promote the interests defined by law.

This first fundamental distinction entails a second: namely, the distinction between an individual ’ s status and the status of the State organ that he or she represents. An individual is a holder of rights and duties in his or her relationship with the State. A State organ cannot be a holder of rights. Its status is analysed in terms of its tasks and powers, as well as its interactions with other State organs. Acts performed in an official capacity cannot fall within the ambit of guaranteed rights (see, for instance, under the German Basic Law, B. Bleckmann, Staatsrecht II – Die Grundrechte (Cologne – Berlin – Bonn – Munich, Carl Heymans Verlag, 1989), p. 123).

5. For the purpose of adjudicating human rights, it is also necessary to distinguish subjective (individual) rights from objective guarantees of the rule of law. The Convention protects individual rights. Individual rights are legal positions of individual persons, established by legal rules in order to protect the individual interests of the persons concerned, in particular their dignity, life, health, freedom, personal self-fulfilment and property (compare paragraph 158 of the judgment). This connection between individual rights and the individual interests of the right-holder is an essential element of the notion of an individual right. Objective guarantees of the rule of law may have a more or less direct impact on the status of the individual, but are primarily enacted to serve the public interest.

The majority refers several times to the international standards pertaining to the status of judges (see, in particular, paragraphs 114, 121, 168 and 172 of the judgment). Their reasoning gives the impression that those standards are important for the purpose of establishing the scope of the human rights protection to be afforded to persons holding judicial office. In this logic, judges ’ speech would enjoy stronger protection under the Convention than the speech of other citizens, as the universal guarantees of Article 10 are juxtaposed with the guarantees of judicial independence.

It is important to stress in this context that the office of judge, whether national or international, is first and foremost one of service to the community, in the same way as any other public office invested with public power. The principles of judicial independence and the irremovability of judges belong to the sphere of objective law. Constitutional democracies grant a certain sphere of autonomous power to the judiciary and, through the above-mentioned principles, protect this sphere against encroachments from the legislative and executive branches. Judicial independence and irremovability are not laid down to protect the individual interests of judges or to facilitate their personal self-fulfilment, but rather to protect the public interest in fair judicial proceedings and the proper functioning of the justice system. They protect those citizens who seek justice, but not the individuals who exercise judicial power. These guarantees cannot be analysed as the individual rights of a judge, even if they co-define (with certain other legal rules) the legal status of the persons holding judicial office. A right-holder may decide freely how to exercise his or her rights and to what extent he or she may assert them through legal remedies. A judge is not free to decide how to assert judicial independence and to what extent it will be asserted before the other State authorities (see below).

The guarantees of judicial independence are not special human rights granted to individual persons holding judicial office, and they do not increase the degree of protection that individuals holding judicial office enjoy as human rights holders. Equally, they do not broaden the scope of the human rights enjoyed by those individuals. On the contrary, judicial integrity and independence may justify deeper interference with judges ’ rights than in the case of ordinary citizens.

These remarks apply a fortiori to the stability of tenure of a court ’ s president, including the president of a Supreme Court. Stability of tenure is granted to a court ’ s president for the sake of the proper exercise of judicial power. No individual interests motivate it. The person holding this office does not have any individual (subjective) right to retain office.

In this context, a clear distinction should be made between, firstly, the objective principles which define the status of the judiciary vis-à-vis the legislative and executive powers, and, secondly, the legal rules which define the scope of judges ’ human rights (in their private capacity) vis-à-vis the State.

6. For the purpose of human rights protection, a clear distinction should also be drawn between private and official speech.

Private speech encompasses, inter alia , the utterances of public officials, made in their private capacity and expressing their private views on various matters, including public questions. Private speech may therefore invoke the usual disclaimer that the utterance expresses the private views of the speaker and does not necessarily reflect those of the institution. Official speech encompasses utterances made in an official capacity, especially those expressing the official viewpoint of a State organ. The opinions expressed by the speaker are attributable to the institution he or she represents. In any event, it is necessary to distinguish between situations when an official exercises his or her freedom of speech in order to express private views on public matters and those situations when an official uses his or her office to speak on behalf of a public authority.

Speech is, by its very nature, an instrument of action that is available to every individual. Utterances are factual acts which usually do not produce legal effects, and must be distinguished from acts of State authority, which are open only to public organs invested with State power. However, official speech is a very specific way of exercising public power, which has the potential to influence the behaviour of individuals and the attitude of other State organs. The importance of this tool should not be underestimated in a deliberative democracy. Furthermore, there is a real risk of abusing this instrument, for instance for the purpose of indoctrination or in order to affect the reputation of others.

The function of official speech is not to express private views. Speakers must remember that they present the official point of view of the official organ in question. They speak in the name of the State organ they represent, in order to achieve specific aims. One of the purposes of official speech is to interact with other State organs, within the broader framework of the checks and balances which ensure the separation of powers. In this context, official speech may be used as a tool to protect or assert a State organ ’ s powers vis-à-vis other State organs. In any event, official speech is not a matter of freedom but, at most, a matter of discretion in the exercise of public power (compare, under the German Basic Law, H. Bethge, Artikel 5 in: Grundgesetz. Kommentar , M. Sachs (ed.) (Munich, Verlag C.H. Beck 2014), p. 300).

7. The third-party interveners rightly stress the functions of the official speech of judges. The latter have a duty to speak out on matters concerning the administration of justice, in order to defend judicial independence and the rule of law. The majority also recognises the duty of the President of the National Council of Justice to express an opinion on legislative reforms affecting the judiciary (see paragraph 168 of the judgment).

Three elements are important here. Firstly, speaking out is a duty. Although the nature of this duty is not clearly explained in the reasoning, it may be assumed that it is not only a moral but also a legal duty. Secondly, it serves a specific public interest. Thirdly, it is perceived as a tool which serves to protect the position of the judicial branch in its relations with the other branches of State. These are three strong arguments against analysing official judicial speech as an expression of freedom. The sphere of judges ’ speech cannot be regarded as a domain of personal choice, but instead as a field subject to precise legal obligations, which have been imposed in the public interest and which restrict the choices available to a judge. In other words, judges ’ official speech is not a matter of individual freedom, but remains very strictly circumscribed and subordinated to the promotion of specific public interests. Public office in the judiciary is not a rostrum for the exercise of free speech.

The notion of freedom of expression enshrined in Article 10 of the Convention presupposes free choice as to whether to speak and what to say. In recognising that the applicant had a duty to speak out in defence of the public interest, the majority seems to contradict the view that the utterances under consideration were covered by Article 10 of the Convention.

8. In the instant case, the applicant had legal capacity to represent the Supreme Court. The majority expressly recognises that the functions and duties of the President of the Supreme Court include the task of expressing views on legislative reforms which were likely to have an impact on the judiciary and its independence. All the utterances under consideration were made by the applicant in his official capacity (see paragraph 145 of the judgment). This essential circumstance, clearly established by the majority, was not disputed by the parties.

The applicant ’ s utterances did not express his viewpoint as a citizen, but the official point of view of an organ of the Hungarian State. He could not and did not invoke the disclaimer that he was expressing only his private views, and not those of the institution he represented. There is no doubt that the utterances by the applicant which are at the basis of the applicant ’ s complaint fall within the category of official speech.

The decisive issue in the instant case is whether the guarantees of Article 10 apply to official speech. In order to answer this question, it is necessary to understand the differences between private and public speech. Private speech is a matter of freedom of expression. The speaker does not need to have a legal basis to speak. Any utterance which is not prohibited is permitted. In contrast, official speech is a tool of public power. The speaker requires a legal basis to speak in his or her official capacity. There should be a legal basis for any official utterance. The choice as to the manner in which speech is used is not a matter of personal freedom but, at best, one of discretion in exercising public power. A State organ may not exceed the legal limits of discretion.

Applying Article 10 guarantees to official speech would mean that the manner in which a State organ speaks is to be considered a matter of personal freedom. Every communication which is not explicitly prohibited would be permitted. No specific legal basis for State organs to speak would be required and any restriction on official speech would have to comply with Article 10 § 2 of the Convention. Official speech could then, in principle, express private views and serve the personal interest of the right-holder, including the purpose of his or her personal fulfilment. A situation in which official speech interferes with the rights of another person could not be treated as mere State interference with that person ’ s rights, but would instead represent a situation of conflict between the freedom of speech of the public official on the one hand, and the rights of that third person on the other. A very thorough balancing exercise would then be required to resolve the conflict between these conflicting rights. The approach taken by the majority, consisting in applying Article 10 to official speech, turns a matter of discretion in the exercise of a specific public power into a free act, covered by the guarantees of individual freedom. The extension of Article 10 to official speech thus undermines the effective protection of the individual against the State.

For all those reasons, in my view, Article 10 is not applicable to official speech (compare, under Article 5 of the German Basic Law, C. Starck, Artikel 5 in: Kommentar zum Grundgesetz , H. von Mangoldt, F. Klein, C. Starck (eds.) (Munich, Verlag Franz Vahlen, 1999), vol. 1, p. 659; and H.D. Jarass, B. Pieroth, Grundgesetz für die Bundesrepublik Deutschland (Munich, Verlag C.H. Beck, 2004), p. 195, as well as a decision of the German Federal Administrative Court – BVerwGE 104, 323 (326) – cited therein).

9. The second question is whether in the instant case there has been an interference with the applicant ’ s rights.

The applicant was deprived of two public offices (President of the Supreme Court and President of the National Council of Justice), which means that he was deprived of public power. His patrimonial rights were also affected, in that he lost certain pecuniary benefits connected with the two public offices in question.

I note in this context that dismissal from public service is an interference with the rights of the dismissed person. However, the applicant was not dismissed from public service, since he preserved his office as judge.

I agree that depriving someone of pecuniary benefits affects that person ’ s patrimonial rights and may constitute an interference with the human rights protected under Article 1 of Protocol No. 1. However, the Chamber declared these pecuniary grievances, raised in the application under Article 1 of Protocol No. 1, inadmissible, stressing that “[t]here is no right under the Convention to continue to be paid a salary of a particular amount” (see paragraph 105 of the Chamber judgment). As a result, the Grand Chamber could not examine this aspect of the case. It follows that the interference under consideration remains limited to the deprivation of public office.

The majority ’ s reasoning is based on the idea that the deprivation of public power is an interference with individual rights. In my view, the approach adopted by the majority in this respect is extremely problematic from the viewpoint of human rights. Public power can never be part of a natural person ’ s individual status. Although there exists an internationally recognised human right to take part in the conduct of public affairs and to have access to public service (see Article 25 of the International Covenant on Civic and Political Rights), there is no human right to preserve public power. Deprivation of public power may adversely affect the legal position of a State organ, but it does not affect, per se , the human rights of the holder of public power. Depending on the circumstances, it may, however, either affect the people (the Nation), who are the ultimate holders of sovereign power in a democratic State, or enable the sovereign people to assert their power vis-à-vis their representatives.

The mere fact that an individual was removed from public office entailing the exercise of public power and, in consequence, lost his or her public power should not be regarded per se as an interference with human rights. In a parliamentary regime, is a vote of no confidence in the Cabinet (which entails the resignation of its members) an interference with the human rights of those Cabinet members?

10. The third question to be answered is whether there is a causal link between the applicant ’ s utterances and the termination of his mandate. The majority tries to compensate for a lack of sufficient evidence in this respect by establishing, for the purpose of assessing the instant case, new rules pertaining to the allocation of the burden of proof. According to the majority, the applicant must establish a prima facie causal link between his behaviour and the reaction of the authorities. Once this prima facie link has been established, the burden of proof would shift to the Government. In my opinion, the rules on the allocation of the burden of proof have not been applied in the instant case in full conformity with the standards of procedural justice.

Firstly, the rules applied by the majority are not couched in general terms. Surprisingly, the relevant part of the reasoning is worded as follows (see paragraph 149 of the judgment):

“The Court is of the view that once there is prima facie evidence in favour of the applicant ’ s version of the events and the existence of a causal link, the burden of proof should shift to the Government.”

The reasoning refers here to the specific situation of the applicant, giving the impression that the Court is applying an ad hoc rule, devised for the specific case of a specific person. Moreover, this rule is not set out in the general principles applicable to the case, but has been inserted in the analysis of the individual circumstances of the case.

Secondly, the rules on the burden of proof applied by the majority are not set out with sufficient clarity and precision. In particular, the majority does not state explicitly what exactly the Government ought to demonstrate. This lack of precision on such a crucial point obviously affects the outcome of the case.

Thirdly, the rules on the burden of proof are of crucial importance in deciding this case. These rules, as formulated by the Court in the instant case, go beyond a mere concretisation of the general requirement that justification must exist for an interference with rights and, moreover, they determine the scope of relevant factual elements for adjudication in this case. The European Court of Human Rights has previously insisted that a court should not surprise the parties by invoking, ex officio , important legal or factual elements which have not been discussed by them (see, in particular, the judgments in the following cases: Clinique des Acacias and Others v. France , nos. 65399/01 and 3 others, 13 October 2005; Čepek v. the Czech Republic , no. 9815/10, 5 September 2013; Alexe v. Romania , no. 66522/09, 3 May 2016; and Liga Portuguesa de Futebol Profissional v. Portugal , no. 4687/11 , 17 May 2016 ). Therefore, in accordance with the Court ’ s case-law on adversarial proceedings, it would have been preferable to draw the parties ’ attention specifically to the rule of the burden of proof to be applied and to invite them to present their position in the light of this rule. The failure to do so affected the Government ’ s position in the proceedings. The approach adopted seems to depart from the strict standards of a fair trial as developed by the Court itself.

Fourthly, any rule on the allocation of the burden of proof must have sufficient justification. It may be that such a rule does not necessarily reflect a generalisation about facts (based on the principle praesumptio sumitur de eo quod plerumque fit ), but in any event it has to take into account the factual context in which it operates and have a strong axiological foundation. I note, furthermore, that in European legal culture there is wide acceptance of the principle affirmanti non neganti incumbit probatio . Although the Court affirms in the context of Article 2 and 3 cases that “Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio ” (see, for example, Hassan v. the United Kingdom [GC], no. 29750/09, § 49, ECHR 2014), exceptions to this principle require a strong justification. Even if there is no doubt that the Government should be required to justify reforms which entail interference with rights protected under the Convention, in cases such as the instant one the burden of proof as allocated by the Court may be extremely difficult (if even possible) to meet. Under the rules applied by the majority, a constitutional reform causing detrimental consequences to a specific person holding public office (or to a clearly identified group of office holders) who had previously criticised the Government will henceforth usually be considered as an unacceptable interference with that person ’ s freedom of speech. Thus, the question of the allocation of the burden of proof in such cases should be re-examined.

Be that as it may, I am not persuaded that a causal link exists in the instant case. Apparently, the termination of the applicant ’ s mandate was decided because the parliamentary majority in Hungary wanted to place persons holding views closer to its own in two key judicial posts. The impugned measure does not appear to be a sanction for past utterances, but rather a tool to influence the way in which two State organs will operate in the future. In other words, the applicant was most probably replaced not because of what he said or did not say in the past, but because he was considered to be a person who might try, in the future, to use his powers in a way that would hinder the parliamentary majority ’ s policy. Obviously, in a State governed by the rule of law such a consideration can never justify interference with judicial independence.

11. The majority considers that the interference complained of did not pursue any of the legitimate aims listed in Article 10 § 2 (see paragraph 157 of the judgment). Nonetheless, it examines whether the interference was necessary in a democratic society. Such an approach is problematic, since the necessity of interference can be assessed only in the light of a legitimate aim. The existence of a legitimate aim is a logical pre-condition for the proportionality test. A measure must be “proportionate to the legitimate aim pursued” (see paragraph 158 of the judgment). Without any legitimate aim, the whole question of necessity becomes devoid of purpose.

12. In the instant case, the majority – quoting the existing case-law – contends that Article 6 is applicable if the following conditions are met: (1) there is a right at stake, protected by national legislation; and (2) this right has a civil character. Furthermore, the majority alleges that Article 6 is not applicable to employment disputes concerning civil servants if: (3) access by civil servants to domestic courts is excluded in a general, abstract and foreseeable manner, and (4) the exclusion serves a legitimate purpose and is proportionate. In my view, the two first criteria are not met, whereas both criteria 3 and 4, excluding the protection of Article 6, are met.

Firstly, the legal position of the applicant as he was affected by the reform cannot be analysed as a subjective right. There is no doubt that the applicant cannot be removed from his post as judge. In such an event, what would have been at stake would be the individual right of access to public service. However, the case does not concern an individual ’ s dismissal from the office of judge, but the termination of specific administrative positions within the judiciary. It is true that, prior to the constitutional reform, Hungarian legislation provided for a six-year mandate and defined the specific conditions for its termination. However, as explained above, this rule was not enacted to protect the individual interests of the office holder, but rather the public interest in judicial independence. In particular, it was not established to enable the applicant to make plans for his personal future, but to ensure the proper conditions for the exercise of judicial power. A holder of public office entrusted with public power does not enjoy a subjective right not to lose that power.

Even assuming that the applicant ’ s legal position were a subjective right, it would have been necessary to establish the exact nature of this right and to determine who the right-holder is, who the right-debtors are (i.e. the bodies which have the obligation to implement the right) and what the exact content of the right is. In particular, it was necessary to determine the scope of the State organs against whom a right may be asserted. Not all rights recognised in domestic law can be asserted against Parliament acting in its capacity as an ordinary lawmaker, let alone in its capacity as Constitution-maker.

Secondly, litigation on the removal of an individual from the office of President of the Supreme Court or President of the National Council of Justice is not civil in nature, but pertains to the area of public law. It concerns a public-law dispute between two State organs over their respective positions and the scope of their powers.

Thirdly, it is true that the constitutional rule in question affected one specific person. In my opinion, however, access to a court was ruled out in a general, abstract and foreseeable manner by the very fact that the impugned provisions were constitutional in nature. The constitutional rank of the provisions unequivocally excluded their judicial review per se . The majority recognises that there was no doubt that the applicant could not lodge a constitutional complaint before the Constitutional Court (see paragraph 75 of the Chamber judgment).

Fourthly, I agree that the High Contracting Parties must exercise their constituent power in compliance with the obligations stemming from the Convention. At the same time, in establishing the content of those obligations in respect of effective remedies and access to courts, one must also take into account the peculiarities of the constituent power in a democratic State. The exclusion of constitutional measures from judicial review serves the purpose of preserving popular sovereignty, which finds one of its expressions in the freedom of the constituent power. It protects the right of the people to choose freely a constitutional system as a foundation and frame for the exercise of public power. It has a strong basis in Article 3 of Protocol No. 1, which protects the right to elect a legislative organ (see below).

In my view, Article 6 is not applicable to the “right” identified by the majority in the instant case and could not therefore have been violated.

13. One of the difficulties in the present case stems from the hierarchical structure of law. Any rule of lower rank must be compatible with the rules of higher rank and, in particular, all ordinary legislation must be compatible with the Constitution. At the same time, a rule of higher rank may amend rules of lower rank.

The applicant ’ s legal position, examined by the majority, was defined by ordinary legislation. His alleged right was therefore protected by ordinary legislation. The President of the Supreme Court enjoyed protection from the executive and legislative branches of State. He did not enjoy protection from the Constitution-maker. The majority ’ s reasoning is intended to demonstrate that the applicant had a “right” not to be removed from the office of President of the Supreme Court under ordinary legislation. However, at the same time the majority – without even discussing the question – decides that the guarantees introduced by a pouvoir constitué can be opposed to the pouvoir constituant . The “right” identified by the majority and the “right” protected by domestic legislation are therefore different. The latter protects only against the pouvoirs constitués , whereas the former is supposed to offer protection also against the pouvoir constituant , under the scrutiny of the European Court of Human Rights.

The majority ’ s argument is developed as though all the legal rules in the Hungarian legal system had the same hierarchical rank. The question arises, however, how guarantees of stability of tenure derived from ordinary legislation could bind the organ representing the sovereign will of the people when it enacts legal rules that have a higher rank in the legal hierarchy. Unlike rights protected by international treaties, rights granted in the national legal system do not – by their very nature – offer protection against constitutional amendments. If the European Convention on Human Rights is capable of transforming constitutional rights which are not covered by the Convention into supra-constitutional rights, then this should have been clearly explained.

Furthermore, the impugned measures were introduced not by way of ordinary legislation but by way of constitutional laws. The national Constitution is the most fundamental expression of popular sovereignty. Its adoption and subsequent modification require a special procedure, with qualified majorities, which ensures strong legitimacy based on consensus between the main political parties or, at least, particularly wide political support for the majority party. Moreover, popular sovereignty means that, in principle, the people have power to appoint and recall the holders of public power. The constitutional autonomy of the State is a precondition of democratic government.

14. In the instant case, the majority finds a violation of Article 6 of the Convention because the applicant could not challenge the impugned constitutional provisions before a domestic court. It therefore finds a violation because judicial review of those provisions was not available in Hungary.

I note that the Court has hitherto never stated that the Convention requires that judicial review of legislation be introduced. On the contrary, it has endorsed the opposite view. It is worth noting that in Paksas v. Lithuania ([GC], no. 34932/04, § 114, 6 January 2011), the Court explained that

“Article 13 of the Convention, which does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority on the ground of being contrary to the Convention (see, for example, James and Others v. the United Kingdom , 21 February 1986, § 85, Series A no. 98; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002-VI; Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X; and Tsonyo Tsonev v. Bulgaria , no. 33726/03, § 47, 1 October 2009), likewise cannot require the provision of a remedy allowing a constitutional precedent with statutory force to be challenged ...”.

The Court seems to depart from its own approach in the present case. In certain circumstances at least, judicial review of legal rules would now appear to be a requirement under the Convention.

Furthermore, the majority requires judicial review not only for ordinary legislation but also for constitutional provisions. However, in many democratic countries judicial review of constitutional laws does not exist. In others, it may be limited to the enactment procedure, whereas the content of constitutional laws is immune from judicial review. Exceptionally, the courts may review the substance of constitutional laws (see, for instance, the judgment of the Supreme Court of India of 24 April 1973, in the case of His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr ., (1973) 4 SCC 225). If the new approach developed by the European Court of Human Rights in the instant case is confirmed in future, this will entail a major transformation of European constitutionalism.

Article 3 of Protocol No. 1 protects the right of citizens to elect a legislative organ. The right to elect a legislative organ is meaningful if that organ enjoys wide legislative powers. This provision is the legal basis for recognising a wide margin of appreciation to the High Contracting Parties under the Convention (see my separate opinion appended to the judgment in Firth and Others v. the United Kingdom , nos. 47784/09 and 9 others, 12 August 2014 ). This applies a fortiori to the Constitution-making organs, whose decisions are taken under special procedures ensuring broad political legitimacy at national level. However, under the approach adopted in the instant case, the most important expression of popular sovereignty, namely the national Constitution, would now be subject to scrutiny under the Convention by an international court. Moreover, this scrutiny extends to the actual motives for constitutional reforms. The present judgment is an important step towards substantially limiting the constitutional autonomy of the High Contracting Parties.

15. The majority decided to grant the applicant compensation in respect not only of pecuniary but also of non-pecuniary damage. This part of the judgment triggers two objections. Firstly, it seems difficult to reconcile with the Chamber ’ s decision not to examine the application under Article 1 of Protocol No. 1. Compensation for pecuniary damage would have been appropriate had there been unlawful interference with the applicant ’ s possessions. Secondly and more fundamentally, as stated above, the measure under consideration was an interference with judicial independence, not with the applicant ’ s individual rights.

16. I would like to point out another problematic consequence of the judgment in the instant case. Freedom always presupposes responsibility. Stressing judges ’ freedom of speech when they are acting in their official capacity entails stricter personal liability on the part of judges for their actions. If judges acting in their official capacity are to be entitled to claim that they are exercising their human rights, and even to receive pecuniary compensation for unlawful interference with their official acts, then they should also be held personally liable for any infringement of the law. This judgment may be used as an argument in favour of broadening judges ’ personal liability for their official acts in general.

17. Finally, I note that the majority, in devising its argumentation for the reasoning, decided to ignore the legal issues and arguments raised by the minority. The public will judge whether this choice strengthens the persuasive force of the judgment.

18. In conclusion, I should like to stress that, in my view, the instant case is a public-law dispute between two organs of the Hungarian State: the Supreme Court and Parliament, acting in its capacity as the constituent power. It concerns fundamental questions of the rule of law in general and judicial independence in particular, but it remains outside the scope of the jurisdiction of the European Court of Human Rights. Other tools exist for protecting judicial independence within the framework of the Council of Europe and within the European Union.

The majority decided to consider that certain legal positions of State organs are covered by the provisions of the Convention, extending their applicability to State organs. Moreover, legal rules pertaining to judicial independence are interpreted in a manner which seems to transform them into special human rights granted to judges. In this way the Court has extended its jurisdiction to certain public-law disputes between State organs, by trying to characterise them as human rights disputes. This is a major change in the European paradigm of human rights protection and a challenge to the European legal tradition. I am concerned that this approach, consisting in tacitly recognising human rights to State organs, may – in a longer-term perspective – undermine the efficiency of human rights protection in Europe.

[1] . Under s ection 31(2) of the Transitional Provisions , these provisions formed part of the Fundamental Law. The First Amendment to the Fundamental Law (18 June 2012) and its s ection 1(1) added point 5 to the Final Provisions of the Fundamental Law, stating that the Transitional Provisions formed part of the Fundamental Law.

[2] . Cardinal Acts require a two-thirds majority to be adopted or changed.

[3] . The Fourth Amendment to the Fundamental Law of 25 March 2013 transferred the text of section 11 of the Transitional Provisions to point 14 of the Final Provisions of the Fundamental Law.

[4] . The First Amendment to the Fundamental Law of 18 June 2012 and its section 1(1) added point 5 to the Final Provisions of the Fundamental Law, stating that the Transitional Provisions formed part of the Fundamental Law.

[5] . Article 258 of the Treaty on the Functioning of the European Union (TFEU) gives the Commission, as guardian of the Treaties, the power to take legal action against a m ember State which is not respecting its obligations under EU law.

[6] . Adopted by participants from European countries and two international associations for judges at a meeting held in Strasbourg on 8 to 10 July 1998 (organised under the auspices of the Council of Europe). The Charter was endorsed by the meeting of the Presidents of the Supreme Courts of Central and Eastern European countries in Kyiv on 12 to 14 October 1998, and again by judges and representatives from ministries of justice of twenty-five European countries at a meeting held in Lisbon on 8 to 10 April 1999.

[7] . Paragraph 22 of his written submissions of 8 April 2015.

[8] . Zander v. Sweden , 25 November 1993, Series A no. 279 ‑ B. See also paragraph 107 of the present judgment.

[9] . Such a possibility has been discussed in the constitutional -law literature ; see, for example, in Germany, Otto Bachof’s seminal Verfassungswidrige Verfassungsnormen? ( Tübingen , J . C. B. Mohr/ Paul Siebeck , 1951 ) , and Gottfried Dietze, “ Unconstitutional Constitutional Norms? Constitutional Development in Postwar Germany” in Virginia Law Review (Jan uary 1956) v ol. 42, n o. 1, pp. 1-22 . For an overview outside Europe, see Aharon Barak, “ U nconstitutional Constitutional A mendments” in Israel Law Review (2011) v ol. 44 , pp. 321-41, and Yaniv Roznai, Unconstitutional Constitutional Amendments: A Study of the Nature and Limits of Constitutional Amendment Powers ( London School of Economics and Political Science, 2014 ) .

[10] . F or a summary description of the discussion, see “ Keeping the guardian under control: The case of Hungary”, Report by Krisztina Kovács, 25 July 2013, CDL-JU(2013)006 ; Gábor Halmai , “ Unconstitutional Constitutional Amendments. Constitutional Courts as Guardians of the Constitution? ”, Constellations , 2 (2012), pp. 182-203 ; and the very interesting research paper “Analysis of the Performance of H ungary’s ‘ one-party elected ’ C onstitutional C ourt Judges between 2011 and 2014 ” , by the Eötvös Károly Institute, the Hungarian Civil Liberties Union and the Hungarian Helsinki Committee (2014), available online . See also , specifically on the compatibility of the new constitutional provisions with the constitutional principles of the rule of law and the independence of the judiciary in Hungary, CDL-AD(2011)016-e , Opinion on the new Constitution of Hungary adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011) , paragraph 140; CDL-AD(2013)012 , Opinion 720/2013 of the Venice Commission on the Fourth Amendment of the Fundamental Law of Hungary, Strasbourg 17 June 2013 , paragraph 115; and CDL-AD(2012)001, Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of Courts of Hungary, adopted by the Venice Commission at its 90th Plenary Session (Venice, 16 ‑ 17 March 2012), paragraph 118; CDL-AD(2012)020, Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of Opinion CDL-AD(2012)001 on Hungary, adopted by the Venice Commission at its 92nd Plenary Session (Venice, 12 ‑ 13 October 2012), paragraph 88.

[11] . Decision no. 45/2012. (XII. 29.) AB of the Constitutional Court of the Republic of Hungary (item IV.7), ABK January 2013, 2, 29), and Decision no. 166/2011. (XII. 20.) AB of the Constitutional Court of the Republic of Hungary, ABH 2011, 545.

[12] . Such as is found in Article 112 of the 1814 Norwegian Constitution, Article 139 of the 1947 Italian Constitution , Article 79 § 3 of the 1949 German Basic Law, Article 89 of the 1958 French Constitution, A rticle 288 of the 1976 Portuguese Constitution and Article 4 of the 1982 Turkish Constitution .

[13] . See Decision no. 22/2012. (V. 11.) AB of the Constitutional Court of Hungary, ABK June 2012, 94, 97: “ In the new cases the Constitutional Court may use the arguments included in its previous decision adopted before the Fundamental Law came into force in relation to the constitutional question ruled upon in the given decision, provided that this is possible on the basis of the concrete provisions and interpretation rules of the Fundamental Law, having the same or similar content as the provisions included in the previous Constitution ... The conclusions of the Constitutional Court pertaining to those basic values, human rights and freedoms, and constitutional institutions, which have not been altered in the Fundamental Law, remain valid.”

[14] . See paragraph 55 of the present judgment.

[15] . See paragraph 56 of the present judgment.

[16] . Decisions concerning the Hungarian Financial Supervisory Authority ( no. 7/2004. (III. 24.) AB), the Hungarian Energy Authority ( no. 5/2007. (II. 27.) AB) and the Hungarian Competition Authority (183/2010. (X. 28.) AB). For instance, in Decision no. 5/2007, the Constitutional Court noted that there had been no re-organisation of the Authority, merely that its competence had been changed without the abolition of the president’s and vice - president’s post.

[17] . Decision no. 7/2004. (III. 24.) AB, cited above.

[18] . Decision no. 183/2010. (X. 28 . ) AB, cited above.

[19] . See Opinion no. 720/2013, cited above, paragraphs 88-108, for the critique of these changes. The position of the Hungarian Government was based upon the legal opinion of a German scholar, who pleaded for the equal ranking of all constitutional provisions in the Hungarian constitutional framework, and hence denied the possibility of unconstitutional constitutional norms and the Constitutional Court’s remit to control the substantive constitutionality of constitutional provisions, although he allowed for the same possibility in the event of a constitutional amendment that would put at risk the principle of “protection of human dignity” – Grundsatz vom Schutz der M ens ch enwürde ( Rechtsgutachten zur Verfassungs- und Europarechtskonformität der Vierten Verfassu ngsnovelle zum ungarischen Grund gesetz vom 11./25. März 2013 , Prof. Rupert Scholz, Berlin , 18 April 2013 ).

[20] . Decision no. 12/2013 (V. 24 . ) AB of the Constitutional Court of Hungary.

[21] . See the report by Krisztina Kovács, cited above, referring to the example of the Supreme Court of India.

[22] . See Vistiņš and Perepjolkins v. Latvia [ GC ] , no. 71243/01, 25 October 2012.

[23] . Gustave Radbruch, “ Fünf Minuten Rechtsphilosophie ” in Rhein-Neckar-Zeitung , 12 September 1945, and, in English, “ Five Minutes of Legal Philosophy ” (1945) in Oxford Journal of Legal Studies (2006) vol. 26, no. 1, pp. 13-15.

[24] . See, for example, Campbell and Fell v. the United Kingdom , 28 June 1984, § 80 , Series A no. 80; Cooper v. the United Kingdom [GC] , no. 48843/99, § 118, ECHR 2003 ‑ XII; and Fruni v. Slovakia , no. 8014/07, § 145, 21 June 2011.

[25] . D ecision no. 45/2012 , cited above. See also Decision no. 166/2011. (XII. 20.) AB of the Constitutional Court of the Republic of Hungary, ABH 2011, 545 . For example, the French Conseil d’ É tat has recognised a judge’s indi vidual right to irremovability since its judgment of 27 Ma y 1949 in the Véron-Réville case (see Gazette du Palais , 10 June 1949, pp. 34-36).

[26] . On Hungary as a dualist system, see Report on the implementation of international human rights treaties in domestic law and the role of courts , adopted by the Venice Commission at its 100th plenary session (Rome, 10-11 October 2014), CDL-AD(2014)036, paragraph 22; Nóra Chronowski and Erzsébet Csatlós, “Judicial Dialogue or National Monologue? The International Law and Hungarian Courts ” in ELTE Law Journal ( 2013 ‑ 1 ) , pp. 7-29 ; Nóra Chronowski , Timea Drinóczi and Ildikó Ernszt, “ Hungary ” in Dinah Shelton (ed.), International Law and Domestic Legal Systems, Incorporation, Transformation and Persuasion (Oxford University Press, 2011 ) pp. 259-87; and Anneli Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge University Press, 2005 ) pp. 82-87. But “ generally recogni s ed rules of international law ” are applied directly in the Hungarian domestic order, according to Article Q (3) of the Fundamental Law . According to the Consti tutional Court, the expression “ generally recogni s ed rules of international law ” used by both the 1949 Constitution and the 2011 Fundamental Law includes universal customary international law, peremptory norms ( j us cogens ) and general principles of law recogni s ed by civili s ed nations (see Decision no. 30/1998. (VI. 25.) AB of the Constitutional Court of the Republic of Hungary, ABH 1998, 220).

[27] . Thus, from the perspective of European human rights law, the differentiation between monistic and dualistic countries is a “ false problem”. See the excellent text by Andrew Drzemczewski, “Les faux débats entre monisme et dualisme – D roit international et droit français : l ’ exemple du contentieux des droits de l ’ homme” in Boletim da sociedade brasileira de direito internacional (Jan uary /Dec ember 1998) Ano 51, Nos. 113/118, p. 100. He added the following illuminating remark: “Where the Committee of Ministers ... supervises execution of the judgments of the European Court of Human Right s , the fact that a State is monistic or dualist, or whether a State has incorporated the provisions of the [European Convention] into its domestic law, is never taken into account” (author’s underlining).

[28] . This opinion was expressed in the Grand Chamber pleadings.

[29] . To quote Prosecutor General Dupin during the July Monarchy, “ u n juge qui craint pour sa place ne rend plus la justice ” (cited in Marcel Rousselet, Histoire de la magistrature française des origines à nos jours ( Plon, Paris ) v ol. 2, p. 174).

[30] . This point was made during the pleadings before the Grand Chamber.

[31] . See paragraph 150 of the judgment.

[32] . See paragraph 149 of the judgment.

[33] . See paragraph 59 of the judgment.

[34] . Article 1, paragraph b, of the 1949 Statute of the Council of Europe.

[35] . See, in this respect, inter alia , Greer and Wildhaber, “Revisiting the debate about ‘constitutionalising’ the ECtHR” in Human Rights Law Review 12:4 (2012), pp. 655-87; De Londras, “Dual Functionality and the persistent frailty of the European Court of Human Rights” in European Human Rights Law Review (2013) issue 1, pp. 38-46; Arnold, “National and supranational constitutionalism in Europe” in New Millennium constitutionalism: paradigms of reality and challenges , Harutyunyan (ed.) ( 2013 ) pp. 121 ‑ 34; Sweet, “Sur la constitutionnalisation de le Convention européenne des droits de l’homme: cinquante ans après son installation, la Cour européenne des droits de l’homme conçue comme une Cour constitutionnelle” in Revue trimestrielle des droits de l’homme (2009), pp. 923-44; Levinet, “La Convention européenne des droits de l’homme, socle de la protection des droits de l’homme dans le droit constitutionnel européen” ; Gaudin , “Le droit constitutionnel européen, quel droit constitutionnel européen ?” in Annuaire de droit européen (2008) vol. 6, pp. 89-123; Costa, “La Cour européenne des droits de l’homme est-elle une cour constitutionnelle ?” in Mélanges en l’honneur de Jean Gicquet , Montchrestien (ed.) ( 2007 ) pp. 1-15; Greer, The European Convention on Human Rights. Achievements, Problems and Prospects ( Cambridge University Press, 2006 ) pp. 172 ‑ 73 and 195; Wildhaber, “The role of the European Court of Human Rights: an Evaluation” in Mediterranean Journal of Human Rights (2004) 8 , pp. 9-29; Alkema, “The European Convention as a constitution and its court as a constitutional court” in Protection des droits de l’homme, Mélanges à la mémoire de Rolv Ryssdal , Paul Mahoney et al. (eds.) ( Carl Heymanns Verlag KG, Cologne , 2000 ) pp. 541-63; Flauss, “La Cour européenne des droits de l’homme est-elle une cour constitutionnelle ?” in La Convention européenne des droits de l’homme : développements récents et nouveaux défis ( Bruylant, Brussels, 1997 ) pp. 68 ‑ 92; and Schokkenbroek, “Judicial review by the European Court of Human Rights: constitutionalism at European level” in Judicial control: comparative essays on judicial review , Bakker et al. ( Antwerp-Apeldoorn, Maklu, 1995 ) pp. 153-65.

[36] . See Anchugov and Gladkov v. Russia , nos. 11157/04 and 15162/05, § 50, 4 July 2013; Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § § 40-41 and 54 , ECHR 2009 ; Dumitru Popescu v. Romania (no. 2) , no. 71525/01, § 103, 26 April 2007; and United Communist Party of Turkey and Others v. Turkey , 30 January 1998, § 29, Reports of Judgments and Decisions 1998 ‑ I. Similar principles have been ascertained under the American Convention on Human Rights by the IACtHR , especially since the judgment in “ The Last Temptation of Christ ” (Olmedo-Bustos et al.) v. Chile (merits, reparations and costs), 5 February 2001 , Series C No. 73 (see Mac-Gregor, “The Constitutionalization of International L aw in Latin America, Conventionality Control, The New D octrine of the Inter-American Court of Human Rights” in AJIL Unbound ( 1 November 2015 ) and the case-law referred to therein).

[37] . Loizidou v. Turkey (preliminary objections) , 23 March 1995, § 75 , Series A no. 310. According to Decision no. 61/2011. (VII. 13.) AB of the Constitutional Court of the Republic of Hungary, ABH 2011, 290, 321, it follows from the principle of pacta sunt servanda that the Constitutional Court must follow the Court’s case-law even if it has not been derived from its own precedents. One example of this is Decision no. 4/2013. (II. 21.) AB of the Constitutional Court of the Republic of Hungary, ABH 2013, 188-211, which followed the Court’s judgment in Vajnai v. Hungary ( no. 33629/06 , ECHR 2008) , on criminali s ation of the use of the five-pointed red star. Lower courts have also provided excellent examples of this attitude, such as the remarkable Decision 5.Pf.20.738/2009/7 by the Budapest - Capital Regional Court of Appeal, delivered in the Hungarian Guard case.

[38] . The IACtHR has consistently emphas i sed both the personal-subjective and the institutional-objective aspects of the independence of the judiciary, establishing an intimate relationship between the latter and “essential aspects of the rule of law and the democratic order itself ” ( Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (preliminary objection, merits, reparations and costs) judgment of 23 August 2013, § 154, Series C No. 266 ).

[39] . Judgment of the IACtHR in Barrios Altos v. Peru (reparations and costs), 30 November 2001, § 44, Series C No. 87, followed by, inter alia , the judgment in Almonacid Arellano et al. v. Chile (preliminary objections, merits, reparations and costs) , 26 September 2006, § 119, Series C No. 154 .

[40] . See, mutatis mutandis , Oleksandr Volkov v. Ukraine , no. 21722/11, § 208, ECHR 2013.

[41] . As the IACtHR has quite rightly pointed out , breaches of human rights law may not be whitewashed by a vote of the political majority, even if the vote is democratic and the majority large ( judgment of the IACtHR in Gelman v. Uruguay (m erits and r eparations ), 24 February 2011, §§ 238-39, Series C No. 221 ).

[42] . It is well known that A rticle 3 of Protocol No. 1 , although developed and supplemented through case-law , is more limited in scope than A rticle 25 of the ICCPR .