ECtHR: dismissal of Hungarian chief justice violated European Convention on Human Rights

The Grand Chamber of the Court of Human Rights ruled that the 2011 termination of Andras Baka’s mandate of the president of the Hungarian Supreme Court had violated the European Convention on Human Rights. The ECtHR ruled that the case involved a violation of the applicant’s right of access to a court and right to the freedom of speech. In its ruling, the Court referred, among other things, to an amicus curiae brief submitted by the HFHR

In 2009 Mr Baka was elected President of the Supreme Court, with a term of office ending in 2015. However, the Transitional Provisions of the new Hungarian Constitution enacted in 2011 removed Mr Baka from office. At the same time, a new procedure was introduced for the election of the President of the Curia, the legal successor of the Supreme Court. The new provisions laid down, among other things, a requirement of having at least five years’ experience 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 ECtHR for the most of his career. According to the applicant, his was dismissed in connection with his critical assessment of the reforms of the judicial system adopted by the Hungarian Parliament, which he expressed in his capacity as President of the Supreme Court. Among the legislative reforms criticised by Mr Baka was the radical reduction the mandatory retirement age for judges. In May 2014 a Chamber of the ECtHR delivered a judgment for the applicant, in which it held that there had been violations of Article 6 and Article 10 of the Convention. The Hungarian Government requested the case be referred to the Grand Chamber.

In today’s judgment, the ECtHR once more ruled that the both Articles of the Convention had been violated. “Article 6 ECHR was violated because A. Baka was unable to request a judicial review of the reasonableness of his dismissal. However, according to the Strasbourg Court, judges and public officials are not automatically deprived of protective guarantees under the ECHR”, explains Marcin Szwed, a lawyer of the HFHR. As the ECtHR argues, the violation of Article 10 resulted from the fact that the main reason behind Mr Baka’s dismissal from the office of the President of the Supreme Court was his criticism of the judicial reforms introduced by Viktor Orban’s government. The ECtHR ordered the Hungarian Government to pay to the applicant the compensation of the total value of EUR 100,000.

In the judgment’s statement of reasons, the ECtHR invoked the key assumptions of the amicus curiae brief submitted in the case by the HFHR in April 2015. “In the brief we noted that the key aspect of the judiciary’s independence is the maintenance of professional stability of top judicial officials. If such a stability is not ensured, political bodies will be able to arbitrarily remove presidents of top courts in order to exert pressure on these bodies”, says Marcin Szwed.

The ECtHR judgment may be of a great importance also for Poland. “The conclusion presented by the ECtHR is that the executive may not arbitrarily remove judges or presidents of courts, especially in revenge for their critical opinions formed against the government; this prohibition applies irrespective of whether a removal is triggered by a statute or a constitutional amendment. This means that even if an interference cannot be reviewed by the Constitutional Tribunal, there will be an option of having it reviewed by the ECtHR”, Mr Szwed explains.

The ECtHR’s judgment may be accessed here.

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