DISSENTING OPINION OF JUDGE K Ū RIS

1. There are many ways in which law can move towards alienation from those who have to live under it. One of them is the overly discretionary interpretation of a legal provision and its application contrary to what that provision explicitly states, or in such an expansive manner that its boundaries become blurred and its content inflated. This particular judgment is a vivid manifestation of such inflation. In it, Article 8 of the Convention is interpreted so broadly that it is capable of covering almost anything, including those fields of life which have until now been conventionally perceived as belonging exclusively or at least primarily to the public domain. Article 8 was intended to protect private life. However, as a result of this and other judgments of the Court in which its applicability has been significantly expanded, it seems to have become all-embracing, because the notion of “private life” has itself become all-embracing.

2. Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

3. Paragraph 19 of the judgment, wherein Article 8 is quoted, resourcefully omits the “family”, “home” and “correspondence” elements as irrelevant to the case and reduces the provision of the first paragraph of Article 8, under which the applicant ’ s case was communicated to the parties, to one single element, namely “respect for [one ’ s] private life”. Thus, the notion of “private life” appears to be not necessarily and/or not always related to “family”, “home” or “correspondence” and in this sense to have a somewhat autonomous content. I agree with the majority that, as a matter of principle, the notion of “private life” encompasses much more than “family”, “home” and “correspondence”. But I strongly disagree with the approach underlying this judgment, namely that the notion of the “right to respect for [one ’ s] private life” extends so far as to include one ’ s right not to be dismissed, without the guarantees provided for in the second paragraph of Article 8, from such a post as that of Vice-President of the Supreme Court. I find it more than difficult to accept that holding such a public post (at least until the standard expiration of the term of office) falls within the sphere of privacy . Hence, I could not vote with the majority in finding a violation of Article 8.

4. This is not to say that Mr Erm é nyi ’ s dismissal from that post was lawful or that it pursued a legitimate aim. In Baka v. Hungary ( [GC], no. 20261/12 , ECHR 2016 ), much was revealed of the (to put it mildly) dubious legality of the re-organisation of the Hungarian judicial system in 2011–2012, including the premature termination, inter alia through ad hominem legislative measures, of the mandates of judges, as well as the mandates of the persons holding the leading judicial posts in the Supreme Court (re-organised under the new name of K ú ria ) or in other courts. There is no need to repeat this assessment here.

However, the fact that the “ interference complained of” did not pursue “any of the legitimate aims enumerated in Article 8 § 2” (see paragraph 37 of the judgment), which is perhaps impossible to dispute, does not in and of itself imply that it was specifically the applicant ’ s right under Article 8 which was interfered with. In fact, the “interference complained of ” (emphasis added) was under Articles 6, 13 and 14 of the Convention, as well as Article 1 of Protocol No. 1 (see paragraph 18). This was so until the Court requalified the applicant ’ s complaint – as early as the stage of communicating the case to the parties.

5. The applicant himself did not invoke Article 8 . It was this Court which invoked it. The Chamber legitimately mentions, in paragraph 18, that the applicant initially invoked other Articles (see § 4 above), but also that he “contended ... that his dismissal had ruined his career and reputation as well as his social and professional relationships”. The Chamber also mentions that “following the disjoinder ... of the present complaint from the initial application”, the applicant “also invoked Article 8 ... and explicitly argued that the termination of his mandate had violated his right to respect for private life, including the development of relationships of a professional nature” (ibid.). What the Chamber does not state is that the applicant “also invoked Article 8” following not only the “disjoinder of the present complaint from the initial application” but also the communication of this complaint to the respondent Government (and to the applicant) by the Court, not under the Articles initially invoked by the applicant, but under Article 8 – to be precise, under its first paragraph. The applicant “also invoked Article 8” because it had already been invoked by the Court.

Thus, it was this Court which sent a message to the applicant that his case was to be examined “solely” under Article 8, and not under the Articles initially relied upon by the applicant himself. It would have been strange had the applicant, having received such a message from the Court, still claimed that his application was to be examined under these other Articles, given that the Court had already requalified these complaints as being presented under the “wrong” Articles. It would have been no less strange had the applicant disputed the examination of the case under Article 8, when the Court had expressed its position that it was Article 8 which was applicable to his case.

One could probably wonder why the Hungarian Government did not argue that Article 8 was inapplicable to this particular complaint by the applicant – in contrast to his other complaint, which pertained to the termination of this applicant ’ s judicial mandate (and those of a number of his co-applicants) and from which the present complaint was disjoined. Let us be realistic. Such a hypothetical contention would hardly have been meaningful, given that the Court had a priori flagged that, as a matter of principle, the question of the applicability of Article 8 had been resolved. Roma locuta, causa finita est.

6. In view of all this, the following conclusion by the Chamber (in paragraph 31) turns the whole thing inside out:

“In the present case, it was not in dispute between the parties that the termination of the applicant ’ s mandate as Vice-President constituted an interference with his right to respect for his private life. The Court finds no reason to hold otherwise.”

The name for such an argument is misrepresentation . Placed in the factual context outlined in § 5 above, this “conclusion” appears to state that the Court finds no reason to hold otherwise than the parties, which earlier found no reason to hold otherwise than the same Court which, even earlier, had taken a position different from that of the applicant and requalified his initial complaint. In other words, the Court finds no reason to find otherwise than it itself had found and authoritatively imposed on the parties.

7. In substantiating the requalification of the applicant ’ s initial complaint to one under Article 8 and “solely” under it, the Chamber states that the Court, being “master of the characterisation to be given in law to the facts of the case”, “does not consider itself bound by the characterisation given by an applicant or a government” and, “[b]y virtue of the jura novit curia principle, it [can consider] of its own motion complaints under Articles or paragraphs not relied on by those appearing before it”, because a “complaint is characterised by the matters alleged in it and not merely by the legal grounds or arguments relied on”. Having stated this, the Chamber goes on to conclude that “[h]aving regard to the facts of the present application, the Court considers it appropriate to examine the applicant ’ s complaint solely from the standpoint of Article 8 of the Convention” (see paragraph 19 of the judgment).

This explains little, if anything at all. All these arguments are but one lengthy paraphrase of the magister dixit thesis. But no one contests that the Court is a “master of the characterisation to be given in law to the facts of the case”. No one doubts the jura novit curia principle. It is also true that the Court is “not ... bound by the characterisation given by an applicant or a government”. And it is no less true that a “complaint is characterised by the matters alleged in it and not merely by the legal grounds or arguments relied on”. So what? It does not follow at all from all these general premises that the applicant ’ s complaint in this particular case has to be examined specifically “from the standpoint of Article 8”, nor, moreover, that it has to be examined “solely” from that standpoint.

8. In the same line, while agreeing with the majority that the termination of the applicant ’ s mandate as Vice-President of the Supreme Court served no legitimate aim (paragraph 37), I cannot agree that this in and of itself enables one to conclude that it is Article 8 which has been violated (see paragraphs 39 and 40 of the judgment; see also § 4 above).

9. The application of Article 8 to this particular complaint by the applicant is far-fetched. It is based on the following doctrinal statement, mechanically and uncritically imported (to paragraph 30 of the judgment) from the earlier case-law:

“The notion of ‘ private life ’ within the meaning of Article 8 of the Convention encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature. Article 8 thus protects the right to personal development and the right to establish and develop relationships with other human beings and the outside world and does not exclude in principle activities of a professional or business nature because it is in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world (see Oleksandr Volkov v. Ukraine , no. 21722/11 , § 165, ECHR 2013-I, with further references). Dismissal from office has been found to interfere with the right to respect for private life (see Özpınar v. Turkey , no. 20999/04, §§ 43-48, 19 October 2010).

Thus, according to the Court ’ s established case-law “ Article 8 ... does not exclude in principle activities of a professional or business nature because it is in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world” (emphasis added). This is a very general statement – and a cautious one, which allows for the invocation of Article 8 under certain circumstances which have to be established , but does not lend itself to indiscriminate application under any factual circumstances, irrespective of what these may be. A non-mechanistic, non-formalistic – that is, not blindly dogmatic – application of this most general doctrinal provision would require that what is “not excluded in principle” and hence may be closer to an exception is not automatically transformed into a rule , by implying that whenever a person is dismissed from employment or from another official – which by definition amounts to public – position, let alone deprived of an function that is “additional” to his or her principal occupation, that person ’ s private life is always interfered with. In the present case, for a fair and careful application of the said doctrinal provision it would have been required that the Court (as a minimum) looked into whether the applicant really belonged to the aforementioned “majority” whose “relationships with the outside world” were “significant[ly]” developed particularly on account of his holding the post of Vice-President of the Supreme Court and that the dismissal from that post “significant[ly]” severed his opportunity to develop the said relationships.

10. I do not believe that the applicant ’ s “relationships with the outside world”, his social life or even his professional relations were dependent to such an extent on that post, which was only an additional function to his judicial service and status as a judge of the Supreme Court. The termination of the applicant ’ s judicial mandate was another matter; to argue that here there has not been an unlawful interference with the applicant ’ s rights under Article 8 would run counter to the Court ’ s most clear case-law as consolidated in Oleksandr Volkov v. Ukraine (referred to in § 9 above). With regard to this applicant, however, that issue (dismissal from the judicial service as such) was settled at the national level (see paragraph 11 of the judgment). As to the termination of the applicant ’ s mandate as Vice-President of the Supreme Court, this dismissal could and most probably did bring about some undesirable consequences in his relations with other judges, other legal professionals or other State officials, and perhaps also with certain other people, but my imagination fails to see these developments as a genuine or powerful intrusion into this applicant ’ s private life – of course, if private is still considered as something essentially different from (even if not always unrelated to) what is public. Most important is that the applicant himself did not think so . And he was right: a person ’ s private life would really be poor, feeble and sorrowful if his or her “relationships with the outside world” depended, mainly or to a considerable extent, on him or her holding a certain official position within the administration, irrespective of what branch of power that administration belonged to. Let it be repeated once again that the applicant (as well as his co-applicants) did not initially invoke Article 8. He did not do so until this Court, at the stage of communicating the case, presented him with an either/or alternative : either his case is examined under Article 8, or it is not examined at all.

On this occasion it should be noted that the applicant ’ s contention in his initial application (and that of another twenty-six persons) “that his dismissal had ruined his ... reputation as well as his social and professional relationships”, a contention to which the Chamber refers (see § 5 above), must be interpreted in the light of two circumstances. The first is that the said “dismissal” encompassed the applicant ’ s “dismissal” not only from the post of Vice-President of the Supreme Court, but also from the judicial service as such (i.e. from his post as a judge of that court); only later were the applicant ’ s two complaints pertaining to the two “dismissals” disjoined by the Court. The second circumstance to be taken into account is that this contention was indeed not the applicant ’ s complaint “proper”, but the joint complaint of as many as twenty-seven co-applicants, only some of whom had previously held, in addition to their judicial function, the posts of court president, vice-president, head or deputy head of division of some court.

11. The judgment attempts to create the impression that it is a logically consequent continuation of the Court ’ s case-law, as enshrined in Oleksandr Volkov v. Ukraine and Baka v. Hungary (both cited above). It is not. There are essential, even crucial differences between these two cases and the present one. To begin with, Baka was not an Article 8 case. In that case, the violations found were those of Articles 6 § 1 and 10, and not of Article 8. And the applicant in Oleksandr Volkov , in which a violation of Article 8 was indeed found (alongside numerous violations of Article 6 § 1), had been dismissed from the post of a judge of the Supreme Court (and only per extentionem from the function of President of the Military Chamber of that court, this latter function being mentioned in passing only once in the entire judgment adopted in that case (see Oleksandr Volkov , cited above, § 11)). (The applicant in Özpınar v. Turkey (referred to in § 9 above), where a violation of Article 8, taken alone and in conjunction with Article 13, was found, was also a “mere” judge.) One can put and turn and mix things as one likes, and still these two cases, Oleksandr Volkov and Baka , even taken together (or perhaps especially taken together), do not suggest in the least that the premature termination of the applicant ’ s function as Vice-President of the Supreme Court, which in this applicant ’ s case preceded his dismissal from judicial service as such, amounted to interference with his rights under Article 8 .

12. Again, I must underline that this disagreement with the majority in no way whitewashes the impugned re-organisation of the Hungarian judicial system in 2011–2012, including ad hominem legislative measures aimed at the premature termination of the mandate of a judge and/or certain related functions (see also § 4 above). If, however, a violation of the Convention has taken place with regard to the dismissal in question , it must have been a violation not of Article 8, but of some other provision(s) of the Convention. But from the outset, as far back as the stage of communication of the case, the Court rejected the possibility of examining this case from a different standpoint, including that of the Articles initially invoked by the applicant.

13. I find it disconcerting that through judgments such as the present one the scope of Article 8 risks becoming inflated (if this has not already occurred). In order to save time and space, I shall not provide in this opinion examples of the other (unfortunately, quite numerous) cases where the boundaries of the notion of “private life” have been expanded so widely and so far that (as I have already hinted in § 1 above) this notion tends to embrace almost everything, including many things which are public in their nature and have only a distant relation to privacy. (Admittedly, there is also an opposite tendency in the Court ’ s case-law, namely where personality rights, which should be effectively protected by Article 8, happen to be ignored when set against the media ’ s rights under Article 10 – but to enter into these matters would entail discussion of a completely different topic; see my joint dissenting opinions with Judge Wojtyczek in F ü rst-Pfeifer v. Austria (nos. 33677/10 and 52340/10 , 17 May 2016) and Ziembi ń ski v. Poland (no. 2) (no. 1799/07, 5 July 2016).)

14. The perspective of examining privacy in terms of the right and value protected by Article 8 must be returned to its natural angle. To present it graphically, 8 should indeed be seen as

8

and not – as increasingly tends to be the case – like the sign of infinity:

∞

15. This case merits re-examination by the Court ’ s Grand Chamber. It meets both criteria indicated in Article 30 of the Convention: (i) it raises a serious question affecting the interpretation of the Convention; and (ii) the resolution of the question before the Chamber has brought about a result that is inconsistent with the Court ’ s case-law. If such re-examination does not take place, this judgment will become the valid jurisprudential law of the Convention, which will then be referred to and followed in subsequent cases. Yes, a risk does indeed exist that it will be followed in an indiscriminate and mechanistic manner, just as this judgment itself is based on an indiscriminate and mechanistic application of a certain doctrinal provision (see § 9 above).

I shall not speculate on the possible ramifications of such a development. Still, one outcome is very predictable. It is trivialisation of the notion of “private life” to such an extent that virtually any act by the authorities of a member State vis-à-vis an individual, as a participant in the labour market or as a holder of a profession or any other official function, could be assessed as an interference with that person ’ s right to respect for private life, protected by Article 8.

By (as I want to hope they will) requesting a referral of this case to the Grand Chamber, the Government would do a service not only – and not even predominantly – to “their” own case, but also to the more far-reaching development of the Court ’ s case-law. On the other hand, having already accepted, albeit upon the Court ’ s most authoritative suggestion at the communication stage (see § 5 above), that Article 8 is applicable to the applicant ’ s dismissal from the post of Vice-President of the Supreme Court, the Government, if they request such a referral, will have to be quite inventive.

Still, I am not overly optimistic that the Government will attempt this avenue. If they do not, we will all have to live – at least until some other case makes its way, at last, to the Grand Chamber and that composition of the Court reviews the doctrine consolidated in the present case – with case-law in which the notion of “private life” is amalgamated with the notion of what is “public”. The (further) fusion of these two notions would indeed be foreign to the manner in which they have, until now, been perceived by the majority of people, who naturally “feel” the essential difference between the two notions and that (even if “in principle” situations where the two notions come together cannot be “excluded”) each of them makes any sense only in opposition to the other, that is to say that what is “public” is “public” because and so long as it is not “private”, and what is “private” is “private” because and so long as it is not “public”. Such case-law, a result of what is sometimes called the “fallacy of legal thinking”, would re-affirm the Court ’ s militant rejection of the conventions underlying the use of certain language in legal texts, including the Convention. On a broader scale, it would represent law which has taken a further regrettable step towards its greater estrangement and alienation from those who are required to follow and respect it .