Can a judge be removed from office? Hungarian judge before ECtHR Grand Chamber

The ECtHR Grand Chamber will consider the appeal of the Hungarian Government in the case of Andras Baka, who has been dismissed from the office of the President of Supreme Court due to constitutional amendments. The HFHR has prepared an amicus curiae opinion in the case.

In 2009 Mr Baka was elected President of the Supreme Court, with a term of office ending in 2015. However, under the newly adopted constitutional amendments he was removed from his role. At the same time, a new office, the Curia, was introduced, which formally replaced the Supreme Court but practically has the same competences. The new provisions laid down, among other things, a requirement of having at least five years of service status as a judge in Hungary. This resulted in the applicant’s automatic removal from the pool of candidates for the office, since he served as a judge at the European Court of Human Rights for the most of his career. In his opinion, the removal was related to the fact that as President of the Supreme Court he publicly criticised the new legislation concerning the justice system passed by the Parliament.

The ECtHR agreed with Baka in May 2014, arguing, for example, that his case involved an infringement of the right to a fair trial. The ECtHR also found that Hungary violated Article 10 of the Convention by disproportionately interfering with the applicant’s right to freedom of expression. The Hungarian Government appealed against the judgment and the case is to be heard in June 2015 by the Grand Chamber of the Court.

In April, the HFHR presented an amicus curiae opinion in the case. “We have stressed in the opinion that the principle of irremovability of judges is currently thought to be one of the founding elements of a democratic state and this is why it has been included in most modern constitutions of democratic states and in many international treaties”, says Marcin Szwed, HFHR’s lawyer. “Complying with the principle of judicial independence is also crucial for human rights protection, especially in respect of the right to a fair trial”, Marcin Szwed adds.

In principle, irremovability refers to the prohibition of arbitrarily depriving judges of their powers and it does not cover the dismissal from the office of president of the court. However, the HFHR argues that presidents of courts cannot be fully deprived of a guarantee of professional security. Otherwise the legislative and judicial bodies would have an opportunity to abuse their powers and arbitrarily dismiss presidents of courts to attain their political aims.

The opinion highlights the fact that the legislator indeed has a right to carry out reforms aiming to extensively reorganise the judicial system but the right is limited. The limits are set by the standards of law, including the principle of judicial independence. The HFHR has stressed that in some states the principle of judicial independence has been given a supra-constitutional rank, which means that it cannot be changed by way of a constitutional amendment.

The HFHR has also pointed to the recommendations of international treaties which highlight the need to protect the judges in office against adverse consequences of the systemic reforms that are implemented. “All the cases of far-fetched interference of authorities with the sphere of judicial independence should be treated with suspicion. Moreover, only the high-importance public interests may justify such an interference”, the opinion reads.

To view the HFHR’s opinion, use this link.