Judicial Reforms in Hungary From the judicialization of politics to the politicization of the Judiciary

Introduction This paper is an overview and evaluation of the judicial reforms carried out by the Orbán

government in 2011. The first question it will try to answer is, whether the 2011 reforms curb Judicial

Independence. To do this, it will briefly look at what Judicial Independence is and why it is important.

Then, it will focus on two important institutions that traditionally measure the extent of Judicial

Independence: the Judicial Council and the Constitutional Court. In the second part, it will use to

great extent Georg Vanberg’s 2008 paper as a pair of lens, through which it will look at the reforms.

Based on that article, the second question this paper will answer is why these reforms could go

through within that specific political context. I will conclude with the limitations of this research and

some final thoughts on the matter.

Judicial Independence Judicial Independence (JI) is not a value in itself; however, it is an important condition for

Judicial Impartiality. The latter is important, because it is a basic prerequisite for a fair trial, which

allows the trial’s outcome to be acceptable by both parties. According to Vanberg’s summary:

Judicial Independence expresses the aspiration that judicial decisions

should not be influenced in an inappropriate manner by considerations

judged to be normatively irrelevant. Typically, judicial independence in this

sense is associated with independence from the political interests of

current office-holders (2008: 1).

Based on this, the purpose of this paper is to discover whether political interests have been

interfering or appear to be interfering with the Judges in Hungary. Naturally, as above mentioned

the ultimate purpose of Judicial Independence is to allow judges to be impartial on the bench.

However, as that cannot be measured clearly just yet, it will suffice for our analysis to look at the

institutional guarantees traditionally associated with an independent judiciary. These are the Judicial

Council and the Constitutional Court. Asserting the changes that the 2011 reforms brought to them

should enable us to understand more about the standing of Judicial Independence in Hungary today.

The reforms of the Judicial Council The institution of the Judicial Council was first introduced in Hungary in 1997. Prior to this,

the Minister of Justice was responsible for organizing the Judiciary. Upon its foundation, the

Országos Igazságszolgáltatási Tanács (OIT) meaning “Judicial Council of the Country” acquired the

responsibility of administering the courts as well as professionally assessing the work of the Judges.

It had 15 members, 9 of whom were judges, directly elected from the ranks for a 6 year term of

office. The other 6 were ex-officio members, most important of whom was the president of the

Legfelsőbb Bíróság (“High Court”) who was also automatically the president of the OIT too1. This

meant more independence for Judges, who were no longer under the control of the executive.

1 http://hvg.hu/itthon/20111012_KIM_birosagi_reform

In 2011, after having obtained a supermajority in the legislative that was sufficient for

amending and redrafting the constitution, the Orbán government decided to reform the Judiciary.

According to the legislation 2011 CLXI. (Chapter VI.) the OIT was split into two separate offices. The

newly created OBH (Országos Bírói Hivatal – National Judicial Office) got the administrative

responsibilities, whose president had very broad prerogatives2. While the OBT (Országos Bírói

Tanács – National Judicial Council) became a primarily elected body with 14 judges coming from the

ranks and only one ex-officio member, the president of the Kúria (the new name of the High Court).

The role of the OBT is primarily checking the decisions of the president of the OBH and making sure

that they are commendable. This way the Kúria became an exclusively professional decision maker,

concerned only with the professional assessment of the judges’ work and the harmony of the

application of the law across the country3.

The reforms were apparently adopted to speed up and make more efficient the existing

system. However, this line of argument explains very little about the need for the changes in

personnel that occurred around the reforms. Firstly, none of the 9 elected members of the OIT were

transferred to the OBT, even though they still had several years of mandate. This was done after

6 July 2011, [when] the Government of Hungary assured the Venice

Commission that the drafting of the transitional provisions of 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.4

Secondly, initially it seemed as if Judge András Baka, the president of the High Court (and also the

OIT) elected in 2009 for 6 years would also become the president of the new Kúria and the OBH5.

Nonetheless, Judge Baka was not kept on board for either jobs. The argument was that he did not

have the necessary qualifications to be the president of the Kúria, as the position required at least 5

years of domestic juridical experience. Judge Baka’s 17 years of experience of being a judge at the

ECHR was not accepted. Allegedly, the real reason for his dismissal was the critique of the

Government’s reforms he expressed in a public letter sent to the EU6. His main concerns were

(among others) the broad powers of the president of the OBH, in particular relating to appointments

and at the same time the reduction of the mandatory retirement age for judges from 70 to 62 years.

Decisively, on 27/05/2014 the ECHR ruled that the dismissal of Judge Baka was against his right and

duty to express his views freely, because it was done as a result of his critique of the government

(see footnote and appendix for more details on the ECHR ruling).7 The government so far has not

replied to the ruling, but it is certain that Judge Baka will not get back his old job. Ultimately, Judge

Tünde Handó became the president of the OBH and Dr. Péter Darák became the head of the Kúria.

2 http://www.complex.hu/kzldat/t1100161.htm/t1100161_5.htm 3 http://birosag.hu/obt/obt/orszagos-biroi-tanacs-tajek 4 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-144139 5 http://hvg.hu/itthon/20111122_Fidesz_Baka_levaltas 6 Ibid. 7 The connection of the causality between Judge Baka’s firing and his expressing of views is under 94: “The Court observes that the proposals to terminate the applicant’s mandate as President of the Supreme Court as well as the new eligibility criterion for the post of President of the Kúria were all submitted to Parliament after he had publicly expressed his views on the legislative reforms at issue, and were adopted within an extremely short time. In fact, in two interviews given on 14 April and 19 October 2011 – that is, before those proposals were submitted to Parliament – two members of the parliamentary majority, one of whom was State Secretary of Justice, had declared that the President of the Supreme Court would continue as President of the Kúria. (http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-144139, my emphasis)

Judge Handó is the wife of the FIDESZ MEP, József Szájer who resigned as the Vice-President of

FIDESZ upon his wife’s inauguration to office. She has not made any politically controversial

statements, but she is considered to be part of the circle of friends of the Prime Minister, Viktor

Orbán. While this is suspicious, it should not be relevant as long as there are appropriate checks and

balances on the office of the President of the OBH.

After the Venice Commission’s opinion on Act CLXI. and Act CLXII. of 2011, the Government

changed the draft-legislation to give more power to the OBT in checking the president of the OBH.8

This restored a balanced image of the reforms. However, in practice the timing has been very

important. Firstly, Judge Handó took offce from 01/01/2012, while the OBT only had its first session

in 01/03/2012. This meant that in the two months of January and February the Judge Handó could

appoint judges effectively unchecked. Secondly, as of Act CLXII. 2011 the compulsory retirement age

for judges was brought down to 62 years from 70 years, which led to 274 judges having to retire by

2012.9 This figure is almost 10% of the entire judicial ranks and includes 3 out of 5 top tier chief

judges and 6 out of 19 chief county judges.10 Furthermore, 132 of these vacancies have been

advertised already in November 2011, meaning that they were filled up from the start of 2012. This

and the previous fact together means that the president of the OBH had the opportunity to appoint

132 new judges of their liking.

This is problematic, considering the initial pledge of the Orbán Government that they would

not use the judicial reforms to replace personnel from previous judicial regimes. The Act reducing

the mandatory retirement age from 70 to 62 years was later nullified by the Hungarian Constitutional

Court in its 33/2012 decision of 16 July 201211. They argued that the sudden drop in the retirement

age was threatening the independence of the judges. Lowering the age is possible only gradually

after proper warning and step-by-step implementation. Unfortunately, for the judges who had to

retire between 01/01/2012 and 16/07/2012, this does not mean that they get their jobs back,

because for that they would need to pursue individual court decisions in their cases. In conclusion,

the reform of the Judicial Council has had serious repercussions on the Independence of the

Judiciary. The most concerning is that, the judges in the highest offices could be replaced as a

punishment for disagreeing with the government.

The attack on the Constitutional Court The Hungarian Constitutional Court (Alkotmánybíróság) was established in 1989. A qualified

(2/3) majority of the Hungarian Parliament appoints its 11 members for 9 years.12 It can conduct

both abstract and concrete constitutional review. The former can be a priori, when the President of

the Republic asks for such a review or a posteriori, when after the enactment of a law a political

actor asks for its review. The latter, (concrete constitutional review) can be petitioned both directly

and indirectly, which lead to the Court having to deal with a large number of cases since its creation.

Statistically, the average completed decisions have been 1000-1500 a year between 1990 and 2010

(except the 2200 cases in 1991, when the new order was still experimenting the system).13 However,

a considerable backlog of unfinished cases has built up steadily over the years starting with 449 cases

8 http://www.venice.coe.int/webforms/documents/?pdf=CDL%282012%29034-e 9 http://hvg.hu/itthon/20111012_KIM_birosagi_reform 10 http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2012/Rapport_en.pdf (p. 144) 11 http://index.hu/belfold/2012/07/16/elkaszaltak_a_biroi_nyugdijszabalyt/ 12 http://www.1000ev.hu/index.php?a=3&param=8630 13 http://www.mkab.hu/letoltesek/statisztika_ossz.pdf (p. 1)

in 1990 and 2201 cases in 2010.14 This shows how broad the powers of the Constitutional Court

were, and how much they have been used. This was true especially during the years 2005-2010,

when Mr. Sólyom has been the President of the Republic. He has been the most active President

with 16 Laws sent to the Constitutional Court for review.15 Many of these decisions have frustrated

the government’s plans and were viewed as political decisions taken by an unelected body. Until

Fidesz was in opposition, they naturally welcomed the activism of the President.

After the 2010, when Fidesz took Government, this judicial activism was not welcome

anymore. In the 2011 reform wave, the Constitutional Court’s powers have been greatly constrained.

After the inauguration of the new Constitution in 2011, and 4 separate packages of amendments to

it between 2011 and 2013, the Obrán government curbed the Constitutional Court severely.16 Firstly,

it incorporated into the constitution a set of Acts previously deemed unconstitutional by the

Constitutional Court, such as the Acts on Religious Communities, Family, Media and Campaign

Regulation, Homelessness, and Universities. Secondly, it declared that all decisions of the

Constitutional Court made prior to 2011 are no longer valid as precedents for future decisions of the

Court. Thirdly, it stated that future Constitutional amendments were exempt from the process of

Judicial review. Finally, the Government will have to collect extra taxes in case it has to pay

compensation as a consequence of a decision of the Constitutional Court or the European Court of

Justice.17 These four decisions are clear signs of the unilateral decision-making that the Orbán

government adopted in relationship to the Constitutional Court. The first three simply limit the base

on which the court can make its decisions, at it still has to interpret the written Constitution, while

the fourth is clearly an attempt to damage public support for the Courts.

A second practice that the Orbán government used to curb the overly activist Constitutional

Court has been court packing. In June 2011, 4 new judges were appointed to the Court with

immediate effect.18 It is also important to understand how these four new judges voted in the

Ermény-case in 2012. In its IV/02309/2012 decision the Constitutional Court approved 8 votes to 7

the removal of Judge Ermény, the vice-president of the old High Court that became the Kúria in 2011.

(Judge Ermény has been the vice-president to Judge Baka, whose case we have already discussed

above.) Crucially, all four judges who were added to the Court in 2011 voted in favour of the dismissal

of Judge Ermény. 19 This shows just how crucial the new judges were in tipping the balance of the

scales inside the Contitutional Court.

In sum, with the amending and later redrafting of the Constitution plus the court packing

practices of the Orbán government, it can be concluded that the Independence of the Constitutional

Court has been reduced. This judgement is valid for the Judiciary as a whole, because the

Constitutional Court is a key institution that in many political cases is the last source of adjudication.

Now, having asserted that Judicial Independence in Hungary has been curbed the paper will turn to

the second part of its inquiry: what underlying circumstances made this possible?

14 Ibid. (p. 1) 15 http://www.parlament.hu/fotitkar/tvalk/kozt_elnok_ossz.htm 16 http://www.kormany.hu/download/2/ab/30000/Alap_angol.pdf 17 http://www.mkab.hu/download.php?d=500 18 http://www.kormany.hu/hu/mo/az-alkotmanybirosag 19 http://www.fundamentum.hu/sites/default/files/13-3-9_du_ab.pdf (p. 9)

Vanberg’s model To understand the current situation of the Judiciary in Hungary, we also need to explain

what variables can influence Hungarian political decision makers in having an independent Judiciary.

Vanberg’s paper proposes a general model for this. He claims precisely that: “the key in accounting

for an independent judiciary is to explain why elected officials (politicians and other parties) will not

want to, or will not be able to, undermine judicial autonomy.20 These two aspects are exactly what

the second part of this paper will unravel: what were the variables in the Hungarian political context

that allowed politicians to interfere with the Judiciary?

Here is the explanation that Vanberg provides: if “i” is a political actor, “B” is the benefit and

“C” is the cost that she incurs with a very independent court; furthermore “D” is the cost of curbing

the independence of that court we have three possible scenarios:

(1) Bi − Ci ≥ 0

Under this first scenario, the political actor—while on occasion dissatisfied

with particular judicial decisions—derives sufficient benefits from an

independent judiciary on balance to prefer maintenance of the system.

She is supportive of judicial independence. (Endogenous Causes of JI)

(2) Bi − Ci < 0 but Di ≥ Ci − Bi

Under this scenario, considering only the benefits and the costs of

particular judicial decisions over time, the actor would prefer not to be

subject to an independent judiciary. But the costs of actually undermining

judicial independence are sufficiently high to induce the actor to be

willing—grudgingly—to tolerate judicial independence. (Exogenous Causes

of JI)

(3) Bi − Ci < 0 and Di < Ci − Bi

Finally, under this last scenario, an independent judiciary imposes

sufficient net cost on the actor (relative to the costs of attacking it), that

the actor prefers to undermine judicial autonomy.21

This paper argues that scenario (3) occurred in Hungary. To prove this, it will have to show that the

variables were unfavourable for the development of scenarios (1) or (2). Below is the explanation of

why the political context was not favourable for the development of Endogenous (1) reasons to

maintain Judicial Independence.

Endogenous Causes In the endogenous scenario, the key variable is “B”, which is the benefits that the political

actor enjoys from having an independent Judiciary. Naturally, there are always costs associated with

an independent Judiciary, because it constrains the powers of the legislative and the executive

branches of the state. It is important to point out that “it is typically impossible for political actors to

20 Vanberg, Georg. (2008) "Establishing and Maintaining Judicial Independence." Oxford Handbooks Online. 20 May. 2014. http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199208425.001.0001/oxfordhb-9780199208425-e-7 (p. 2) – my emphasis. 21 Ibid.: p. 3

reap the benefits that flow from an independent judiciary without also tolerating the costs that it

may impose when judicial independence results in undesirable outcomes”.22 This is the reason that

we can write a cost-benefit equation for the closed system that JI is from the perspective of the

political actor in discussion.

According to Vanberg, the political actor can enjoy three potential benefits from having an

independent Judiciary. Firstly, the enhanced durability of legislations. Secondly, the delegation of

unpopular decision to the Judiciary. Thirdly, protecting future interests (when in opposition) of the

political actor. Now we will look at how these applied to the Orbán government after their 2010

election landslide victory. The first benefit an independent Judiciary could provide is enhanced

durability of legislation:

If interest groups expect that legislation they are able to secure to

promote their interests is easily undone by subsequent legislative or

judicial action, the value of legislation for interest groups declines—and

along with it the “payments” that groups are willing to make to legislators

in order to secure it. To increase the value of legislation, legislators

therefore have an interest in “tying their own hands” in ways that increase

the durability of legislation.”23

However, the Orbán government did not need the judiciary to ensure the durability of its legislation,

because it could secure it in alternative ways. Primarily it used Sarkalatos Törvények („Fundamental

Laws”), legislation passed with a qualified (2/3) majority and thus needing a similar majority to be

amended. The Government used this type of legislation 32 times in the past 4 years reforming the

law on all aspects of life including family law, the electoral system, various state institutions and the

religions officially recognised by the state. 24 This shows the extent to which the government has

used its qualified majority to ensure the durability of legislation.

Secondly, the delegation of unpopular decision to the judiciary might be a compelling reason

to preserve Judicial Independence.25 Nonetheless, there are three reason why the Orbán

government did not need this benefit of an independent Judiciary. Firstly, it had a huge investiture

and thus had space to lose popularity even by taking on unpopular decisions. Secondly, the

technocratic (Bajnai) government of 2009 took most of the austerity decisions needed to tackle the

immediate crisis (including a 2 pc increase on VAT). Therefore, the Orbán Government had more

leeway and did not face that many unpopular decisions. Finally, to compensate for the few

unpopular decisions that the Government had to take they ensured that the public discourse of the

pre-election year (2013) was dominated by their highly populist agenda of reducing Utility Bills.

These three events made it possible for the Government to not need this benefit either from the

Judiciary.

Thirdly, protecting future interests might have been a concern for the Orbán government.

In fact,

22 Ibid.: p. 2 23 Ibid.: p. 4 24 http://www.parlament.hu/fotitkar/sarkalatos/sarkalatostvekjegyzeke.pdf 25 Vanberg, Georg. (2008) "Establishing and Maintaining Judicial Independence." Oxford Handbooks Online. 20 May. 2014. http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199208425.001.0001/oxfordhb-9780199208425-e-7 (p. 4)

Democratic politics typically involves alternation in power […] While each

party would prefer not to be subject to judicial control while in office, it

may be willing to tolerate this constraint in the expectation that other

parties will similarly respect an independent judiciary when they come to

power. Judicial autonomy is maintained by reciprocity among political

actors trying to protect their interests while out of power.”26

Yet for this benefit to be important for the governing party, electoral volatility had to be high enough.

Without it, the governing party did not need to expect the opposition to return to power anytime

soon and therefore did not need an outside protection for its interests either. Because the

opposition after the 2010 elections was irreconcilably shattered in five small parties, Orbán’s Fidesz

could reasonably expect to stay in power even after 2014, as it in fact happened. Furthermore, with

the entrenchment of the party in certain positions of long term power (like the Constitutional Court

or the OBH) they had a potentially favourable judiciary instead of an independent one, which has

the ability to protect Fidesz’s future interest even more strongly.

In sum, because neither of the three possible benefits of an independent Judiciary seemed

appealing enough to override the costs of it, from the government’s perspective it could have been

reasonable to curb the courts’ independence. As the circumstances for an endogenously maintained

independent judiciary were not existent, now we will take a closer look at the exogenous reasons

that could have prevented court curbing.

Exogenous Causes In the Exogenous scenario according to Vanberg the key variable is “D”, which is the political

cost that the actor would have to pay to curb the court’s independence. If this is smaller than the

benefits that it would gain by not having an independent and activist judiciary, then the actor is likely

to endeavour in court curbing attempts.27

Theoretical approaches to understanding public support for courts

highlight benefits that citizens can derive from an independent judiciary

that they cannot secure directly from democratically elected policy-

makers. Such arguments generally adopt a principal–agent framework that

views courts as tools that citizens can use in order to enforce constitutional

limits on policy-makers.28

According to Vanberg there are two key elements that compose „D”. Firstly, it can be political costs

derived from Public Support for Judicial Independence. Secondly, constitutional constraints, deriving

from collective action problem between the various political actors such as the legislative and the

executive, could also raise to costs of court curbing.

For the first argument, public support can be of two kinds, general public support or

specialized public support. In practice, public trust in the Hungarian Legal system has been between

55-35% according to the Eurobarometer.29 What really matters is that this number did not change

26Ibid. 27Ibid.: p. 5 28Ibid.: p. 5 29http://ec.europa.eu/public_opinion/cf/showchart_line.cfm?keyID=2196&nationID=22,&startdate=2004.10&enddate=2010.11

significantly between the 2010 EB and 2013 Flash EB.30 Naturally, the real effects of the reforms will

be felt much later than 2013, but still this information can be interpreted in two ways. Either the

decrease in Judicial Independence did not result in effective judicial impartiality on the bench.

Alternatively, judicial independence is not a concern for the majority of the electorate and thus they

perceive the legal system to be working well without it too. As it is hard to draw any conclusions

from this data, it can be helpful to look at specialized public support for the reforms of the

government too. The trade union of judges (Mabie) was contrary to the reforms, and it expressed

this in the open letter that it sent to the Prime Minister in 2011. 31 As we learned previously, the

Chief Judge Baka was also criticizing the reforms for which he paid by being replaced as Chief Judge.

This controversy makes the second conclusion more likely, meaning unfortunately that not enough

people in the Hungarian electorate value enough the independence of the courts. Nonetheless, this

evidence is not entirely conclusive and only time will be able to tell the real effects on Judicial

Impartiality of the reforms.

Secondly, Constitutional constraints can also work as an exogenous force preventing court

curbing. Vanberg explains that

Constitutional systems that separate power across institutions in such a

way as to necessitate coordinated action by several political actors in order

to attack the judiciary increase the security of courts. Adopting the

language of the model laid out above, separated powers generally increase

the costs of subverting judicial independence because they make it

necessary to secure agreement among several actors.32

Unfortunately for the courts, the Hungarian political system has very little separation between the

Executive and the Legislative. Parliament does not have a tradition of dissenting from the

Government when there is a clear majority in the House. Furthermore, Mr. Orbán is a very strong

leader within his party; he is the unchallenged president of Fidesz and is the politician who unified

the fragmented right in the 1990s. This unity within Fidesz and the Executive and the Legislative

means that there is only one political actor whose “co-ordinated action” is needed to reduce political

costs of court curbing due to constitutional constraints: that is the President of the Republic.

The Hungarian President of the Republic’s office is a traditionally ceremonial role.

Nonetheless, it has a very important role in the legislative process, which is the right to request

“előzetes normakontroll” (a priori constitutional review) from the Constitutional Court. This is often

referred to, as the “constitutional veto” of the President. He can also send legislation back to

Parliament to reconsider it, which is known as the “political veto”. The President is also responsible

for nominating, and after the Parliament’s approval, appointing people as judges and various other

public offices. Between 2005 and 2010 as already mentioned above, László Sólyom’s term in office

marked a very activist President of the Republic, which can also be seen in the table below showing

the number of vetoes exercised over legislation by the various Presidents since 1990.33

30 http://ec.europa.eu/public_opinion/flash/fl_385_en.pdf 31 http://www.mabie.hu/node/803 32 Vanberg, Georg. (2008) "Establishing and Maintaining Judicial Independence." Oxford Handbooks Online. 20 May. 2014. http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199208425.001.0001/oxfordhb-9780199208425-e-7 (p. 5) 33 http://www.parlament.hu/fotitkar/tvalk/kozt_elnok_ossz.htm

Name of President “Political Veto” “Constitutional Veto” Árpád Göncz

1990-1995 0 7

Árpád Göncz 1995-2000

2 1

Ferenc Mádl 2000-2005

6 13

László Sólyom 2005-2010

31 16

Pál Schmitt 2010-2012

0 0

János Áder 2012-

18 1

Based on the table, we can see a clear difference in activism between the President of the

Republic at the time of the judicial reforms and Constitutional engineering and his predecessor.

President Schmitt did not contest even one single legislation. This is not surprising from a previous

Fidesz MP and MEP, who was appointed in late 2010 by the newly elected Parliament. Without the

check of the President of the Republic, the problem of collective action did not come up and there

were no Constitutional Constraints left to stop the Orbán government’s reforms. In sum, the benefits

obtained by curbing the independence of the judiciary seemed to outweigh the costs incurred

through such action. Therefore, the exogenous consideration were not enough to prevent the

reforms to go through either.

Conclusion Before concluding there are four areas that pose some limitations to the results of this

paper. First, the translations are not official or professional, but I have attempted to give the original

Hungarian’s closest meaning where I could. Secondly, the data regarding public polls such as the

Eurobarometer is highly dependent on the honesty of the polled, the way the questions were asked,

and the linguistic context in which they were asked. Therefore, I decided not use them as a primary

source of causal information, I only used it to note emerging trends. Thirdly, the overall de facto

outcome of the reforms remains yet to be seen, the main argument of this paper is only that the

institutional framework that guarantees the independence of the judiciary has been seriously

damaged. Finally, Vanberg’s model is based on Rational Choice Theory and therefore it has very

serious limits. Nevertheless, it gives a good understanding of the possible considerations that

political actors might be having when making strategic decisions.

With this in mind, this paper can conclude that there has been a serious breach in the

independence of the Judiciary, which was due to the lack of endogenous and exogenous incentives

for political actors to preserve its independence. On a personal note, it is important to bear in mind

that there ought to be a fine line between how far the unelected courts can interfere in a

democratically elected and re-elected governments. What happened in Hungary can be a warning

for all courts that too much activism can easily have a serious backlash on the courts Independence.

APPENDIX – (Extracts from the ruling of the ECHR in BAKA v. HUNGARY)34 The parties’ submissions

1. The applicant

81. The applicant contended that he had been dismissed from his position as President of the

Supreme Court for expressing his views, in his professional capacity, on four issues of fundamental

importance for the judiciary (the Nullification Act, the retirement age of judges, the amendments to

the Code of Criminal Procedure and the new legislation on the Organisation and Administration of

the Courts). It was not only his right to express his opinion, but also one of his duties as President of

the National Council of Justice. There was a causal relationship between the expression of those

views and his premature dismissal. According to the applicant, his allegation was corroborated by

the fact that the Government had previously denied that the new regulation on the competences of

the new Kúria would necessitate the termination of the mandates of persons elected under the

previous Constitution (see Position CDL(2011)058 of the Government transmitted to the Venice

Commission on 6 July 2011, paragraph 48 above). The idea of the applicant’s dismissal did not

emerge until late November 2011, subsequent to the criticisms expressed by him (including in his

parliamentary speech of 3 November 2011). In order to show that his removal from office was the

result of the expression of his views, he referred to several statements in the Hungarian and

international press, as well as to reports by international organisations (see the Opinions of the

Monitoring Committee of the Parliamentary Assembly of the Council of Europe, paragraph 52 above,

and of the Venice Commission (CDL-AD(2012)001, § 115), paragraph 49 above).

The applicant argued that the alleged link between the changes affecting the Supreme Court and the

termination of his mandate had been created only as a subsequent pretext by the Government. In

any event, although the institution’s name had changed, both the function of the new Kúria and the

nature of the role of its president remained essentially the same. The function for which the

applicant had been elected had not ceased to exist. In this regard, the applicant emphasised that in

a democratic society governed by the rule of law, no reconsideration, either by the legislature or by

the executive, of the suitability of any elected judicial official was allowed before the expiry of the

term of office of that official, without prejudice to the statutory grounds for dismissal or revocation.

In his case, it had been proved beyond reasonable doubt by many sufficiently strong, clear and

concordant inferences that the premature termination of his mandate as President of the Supreme

Court amounted to an interference with his right to freedom of speech.

82. The applicant further argued that the interference with his freedom of expression was not

“prescribed by law”, as required by the second paragraph of Article 10. The impugned legislative

provisions removing him from office were aimed at him as an individual. They were arbitrary,

abusive, retroactive and incompatible with the Convention requirements concerning the quality of

law in a democratic society governed by the rule of law. Moreover, the legislature had failed to

demonstrate the existence of a legitimate aim.

83. Lastly, the applicant considered that the interference of which he was complaining could not be

regarded as “necessary in a democratic society”. In discharging his constitutional duty as head of the

judiciary, he had freely and legitimately expressed his views on new legislation affecting the

judiciary. As a result, he had not only been dismissed from his position but all of the benefits and

allowances due to an outgoing president of the Supreme Court had also been removed retroactively.

34 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-144139

Those disproportionate and punitive measures, with their potential chilling effect, compromised the

independence of the judiciary as a whole.

2. The Government

84. The Government contended that there had been no interference with the applicant’s freedom

of expression, since the termination of his mandate as President of the Supreme Court was not

related to the opinions he had expressed. The fact that the public expression of his opinions pre-

dated the termination of his mandate was not sufficient to prove that there was a causal link

between them. The applicant’s mandate had been terminated because of the fundamental changes

in the functions of the supreme judicial authority in Hungary, renamed as Kúria. The function for

which the applicant had been elected had ceased to exist upon the entry into force of the

Fundamental Law. His election and activities had been mostly connected with the functions of the

President of the National Council of Justice, which had been separated from those of the President

of the new Kúria. In addition, the functions and competences of the Kúria itself had also been

changed and broadened. Therefore, the professional requirements stemming from those new

functions could not have been taken into account when the applicant’s suitability for the post of

President of the Supreme Court had been considered. Relying on the Constitutional Court’s

judgment of 19 March 2013 concerning the termination of the mandate of the Vice-President of the

Supreme Court, the Government were of the opinion that the major changes in the functions of the

President of the Supreme Court also justified reconsideration of his suitability for the post of

President of the new Kúria. Furthermore, the requirement that the new President of the Kúria should

have at least five years’ judicial service guaranteed the influence of the judiciary in the selection of

candidates for that post. The post was now more judicial and less managerial than that of the

President of the Supreme Court. The Government invited the Court to conclude that the applicant’s

complaint under Article 10 was manifestly ill-founded.