Baka v. Hungary: judicial independence at risk in Hungary’s new constitutional reality

By Pieter Cannoot, academic assistant and doctoral researcher of constitutional law (Ghent University)

On 23 June 2016 the Grand Chamber of the European Court of Human Rights held that Hungary violated the right of access to a court (article 6, §1 ECHR) and the freedom of expression (article 10 ECHR) of András Baka, the former President of the Hungarian Supreme Court (now: Kúria). Several constitutional and legislative reforms led to the early termination of Mr. Baka’s mandate, expelling the critical judge from the highest office in the Hungarian judiciary, without providing any possibility for judicial review. The judgement is only the latest episode in a series of worldwide condemnations of Hungary’s new constitutional and human rights reality.

Relevant facts

The applicant, András Baka, was a judge at the European Court of Human Rights for seventeen years (1991-2008). On 22 June 2009 he was elected by the Hungarian Parliament as President of the Supreme Court for a six-year term, until 22 June 2015. As President, the applicant had both a managerial and a judicial role, mostly through presiding over deliberations to preserve the consistency in the case law. He was also qualitate qua President of the National Council of Justice, and therefore under the explicit legal obligation to express his opinion on parliamentary bills that affect the judiciary. Mr. Baka publicly criticized several aspects of the comprehensive constitutional and legislative reforms, initiated by the second Orbán-Government, that directly affected the judiciary, most notably the lowering of the mandatory retirement age for judges from 70 to 62.

In April 2011 Parliament adopted the new Fundamental Law of Hungary, which replaced the Constitution of 1949 andentered into force on 1 January 2012. Article 25 of the Fundamental Law proclaims the Kúria as the country’s supreme judicial organ. In December 2011 Parliament approved several Transitional Provisions to the Fundamental Law, providing that the Kúria would be the legal successor to the Supreme Court and that the mandate of the President of the Supreme Court would terminate upon the entry into force of the Fundamental Law. Moreover, the new Organization and Administration of the Courts Act introduced a new criterion for the election of the new President of the Kúria, i.e. at least five years of experience as a judge in Hungary. The combination of these provisions led to the termination of Mr. Baka’s mandate and his ineligibility for a new term, as well as loss of the corresponding remuneration and benefits.

Interestingly, the legislative procedure regarding the Transitional Provisions was only initiated at the end of November 2011, three weeks after a parliamentary speech made by the applicant in which he criticized the planned judicial reforms. Since there were no possibilities for judicial review at the national level, Mr. Baka lodged an application against Hungary with the ECtHR on 14 March 2012.

Judgment

In May 2014 the Court held that Hungary had violated articles 6, §1 and 10 of the Convention. Hungary, however, requested that the case be referred to the Grand Chamber, which the Court accepted. With regard to the applicability of article 6,  §1 ECHR, the Court noted that Mr. Baka was elected President of the Supreme Court on the basis of the 1949 Constitution and the Organization and Administration of the Courts Act for a fixed term of six years, with only an exhaustive list of reasons for terminating the mandate, such as mutual agreement, resignation or dismissal after demonstrated incompetence with regard to the managerial tasks. In the latter case, the President would have been entitled to judicial review of the dismissal before the Service Tribunal. The Court therefore held that – under the existing legal framework at the time of his election – Mr. Baka enjoyed a right to serve a term of office until such time as it expired, or until his judicial mandate came to an end. Moreover, his entitlement to a full term was supported by constitutional principles regarding the independence and irremovability of judges. Lastly, the Court considered that the fact that the applicant’s mandate was terminated ex lege by operation of new (constitutional) legislation could not retrospectively remove the arguability of Baka’s right under the applicable rules in force at the time of his election. Indeed, it was precisely this new legislation that constituted the object of the dispute between Baka and the State of Hungary, to which the guarantees of article 6, §1 (had to) apply. The question whether Mr. Baka had a right under Hungarian law to a full term mandate could therefore not be answered on the basis of the new legislation.

On the basis of the Court’s case law, the question whether a right of a civil servant is ‘civil’ in the meaning of article 6, §1 is settled in the light of two criteria: (1) whether the national law expressly excluded access to a court of the post or category of staff in question and (2) whether the exclusion is justified on objective grounds in the State’s interest. Article 6, §1 does not apply when these two conditions are met. According to the Court, the President of the Supreme Court was not expressly excluded from the right of access to a court. Indeed, Hungarian law explicitly provided for a right of judicial review in case of dismissal, in line with several (soft law) international and Council of Europe standards with regard to the independence of the judiciary. Moreover, in order for national legislation excluding access to a court to have any effect under article 6, §1, it should be compatible with the rule of law, which is inherent to the Convention. Since the new legislation is directed against a specific person and therefore not an instrument of general application, the Court considered it contrary to the rule of law. In this light, it cannot be concluded that national law expressly excluded access to a court. Given that the two conditions for excluding the application of article 6, §1 must be fulfilled, the Court did not find it necessary to examine the second condition.

The Court noted that the premature termination of Mr. Baka’s mandate as President of the Supreme Court was not reviewed, nor was it open to review by an ordinary tribunal or other body exercising judicial powers, because of legislation whose compatibility with the requirements of the rule of law is doubtful. Indeed, the Court referred to the growing importance that international and Council of Europe legal instruments, international case law and practice of international bodies attach to procedural fairness in cases involving the removal or dismissal of judges. The ECtHR therefore held that Hungary impaired the very essence of the applicant’s right of access to a court, as guaranteed by article 6, §1 of the Convention.

In the Court’s view, considering the sequence of events – mentioned above – in their entirety, there is moreover prima facie evidence of a causal link between the applicant’s exercise of his freedom of expression and the termination of his mandate, especially since the Hungarian government had previously assured the Venice Commission that the Transitional Provisions to the Fundamental Law would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime and members of the parliamentary majority had indicated that Mr. Baka’s mandate would not be terminated upon entry into force of the new Fundamental Law. Moreover, neither Mr. Baka’s qualifications nor his professional conduct were ever questioned by the authorities. Lastly, the Court considered that the changes made to the tasks of the President of the supreme judicial body were not of such a fundamental nature that they should or could have prompted the termination of Mr. Baka’s mandate. The termination of the mandate was therefore an interference with the exercise of his right to freedom of expression, guaranteed by article 10 ECHR.

Hungary argued that the termination of the mandate was legitimately aimed at maintaining the authority and impartiality of the judiciary. However, the Court considered that a State cannot legitimately invoke the independence of the judiciary to justify a measure such as a dismissal for reasons that had not been established by law and which did not relate to professional incompetence or misconduct. Indeed, rather than serving the aim of maintaining the independence of the judiciary, the premature termination of Mr. Baka’s mandate appeared to be incompatible with that aim. The inference therefore did not pursue a legitimate aim.

The Court reiterated that Mr. Baka not only had a right, but also a duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary. He expressed his views on issues related to the functioning and reform of the judicial system, the independence of judges, and their retirement ages, which are all questions of public interest, calling for a high degree of protection of the freedom of expression. Mr. Baka was removed 3,5 years before the end of his term, which is hard to reconcile with the irremovability of judges. The premature termination therefore defeated, rather than served the independence of the judiciary. Lastly, the Court found the measure to have an undeniable chilling effect in that it discourages judges from participating in the public debate on issues concerning the judiciary. In sum, the measure was not necessary in a democratic society. Accordingly, the Court found a violation of article 10 ECHR.

Comment

The Baka case is illustrative of Hungary’s new constitutional climate and its shortcomings in the protection of fundamental rights, especially with regard to dissenting critics of the current dominant political order. Not only the European Court of Human Rights, but also the European Commission, the EU Court of Justice and the Venice Commission have condemned recent developments in Hungary. The premature termination of Mr. Baka’s mandate as President of the Supreme Court through Transitional Provisions to the Fundamental Law demonstrates the Orbán-Government’s willingness to misuse the constitution to target individual critics, like Mr. Baka, who make use of their freedom of speech to indicate curtailments of fundamental rights and principles.

The Court clearly attributes direct supraconstitutional effect to the Convention, and more specifically articles 6, §1 and 10. Indeed, it emphasizes that the applicable provision of the Hungarian Fundamental law and the accessory Transitional Provisions are incompatible with the rule of law, which is inherent to the Convention (§117). Besides, the Court refers to several (soft-law) international and Council of Europe instruments to highlight the growing international standard regarding the protection of the independence and irremovability of the judiciary (§ 114, 122, 172), including access to a court in case of dismissal of judges. By deliberately sacking Mr. Baka for his critical comments on the planned reform of the judiciary through constitutional legislation, the Hungarian authorities not only created a chilling effect but also threatened the independence of the judiciary. Judge Pinto de Albuquerque therefore concludes in his joint concurring opinion that the Court suggested the applicable Transitional Provisions to be unconstitutional constitutional provisions.

With this case, the Court clearly demonstrated that Contracting States to the ECHR cannot circumvent their obligation to protect fundamental rights by adopting constitutional legislation, which is not subjected to judicial review at the domestic level. By unlawfully individualising the application of the Transitional Provisions to the Fundamental Law and terminating Mr. Baka’s mandate, the Hungarian authorities not only violated the right to a fair trial and the freedom of expression, but also trampled the rule of law.

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