A. Election of the Applicant as President of the Supreme Court and his Functions

1. 12. On 22 June 2009, after seventeen years of service (1991-2008) as a judge at the European Court of Human Rights and, subsequently, more than one year's service as a member of the Budapest Court of Appeal, the applicant was elected by the Parliament of Hungary, by decision no. 55/2009 (VI.24) OGY, as President of the Supreme Court for a six-year term, until 22 June 2015.

2. 13. In that capacity, the applicant carried out managerial tasks and also had a judicial role, presiding over deliberations which resulted in uniformity resolutions (on case-law consistency) and in guiding resolutions. He was also President of the National Council of Justice. This second function had been added to the tasks of the President of the Supreme Court in 1997 by the Organisation and Administration of the Courts Act (Act LXVI of 1997). As the head of the National Council of Justice, the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice (see paragraph 44 below).

3. 14. On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union elected the applicant President of the Network for a two-year term (2011 to 2013).

B. The Applicant's Public Statements and Positions Concerning the Legislative Reforms Affecting the Judiciary

1. 15. In April 2010 the alliance of Fidesz–Magyar Polgári Szövetség (Fidesz–Hungarian Civic Union, hereinafter “Fidesz”) and the Christian Democratic People's Party (“the KDNP”) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional and legislative reforms. In his professional capacity as President of the Supreme Court and the National Council of Justice, the applicant expressed his views on different aspects of the legislative reforms affecting the judiciary, notably the Nullification Bill, the retirement age of judges, the amendments to the Code of Criminal Procedure, and the new Organisation and Administration of the Courts Bill.

2. 16. On 12 February 2011, in relation to the Nullification Bill (subsequently Act XVI of 2011, ordering the annulment of final convictions relating to the dispersal of crowds in the autumn of 2006), the applicant's spokesman explained to the Népszabadság newspaper that, in the applicant's view,

   “the Bill ordering the annulment of certain judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to assess evidence freely. This is a serious constitutional problem. … the judiciary is examining the Bill only from a professional point of view and distances itself from any kind of political debate. András Baka [the applicant], President of the National Council of Justice, hopes that Parliament will choose a legal technique that eliminates the problem of unconstitutionality”.

3. 17. On 8 March 2011, the day after the Bill's enactment, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time), responded at a press conference to the criticisms made by the judiciary, and declared: “The adopted legal solution was said to be unfortunate. Now, I myself find it unfortunate if a member of the judiciary, in any position whatsoever, tries to exert influence over the legislative process in such a way”.

4. 18. On 24 March 2011, in a speech delivered to Parliament in the course of the debate on the Bill on the Fundamental Law of Hungary (the new Constitution), the applicant expressed his opinion on certain aspects of the proposed constitutional reform which concerned the judiciary, notably the new name given to the Supreme Court – Kúria –, the new powers attributed to the Kúria in the field of ensuring consistency in the case-law, the management of the judiciary and the functioning of the National Council of Justice, as well as the introduction of a constitutional appeal against judicial decisions.

5. 19. On 7 April 2011, in relation to the proposal to reduce the mandatory retirement age of judges (from seventy years to the general retirement age of sixty-two) in Article 26 (2) of the Fundamental Law of Hungary, the applicant, together with other court presidents, addressed a letter to various actors in the constitutional process (the President of the Republic, the Prime Minister, the Speaker of Parliament) in which they pointed out the possible risks to the judiciary posed by the given proposal. Their concern was that, by abolishing the possibility for judges to remain in office until the age of seventy, the proposed rule would force one-tenth of Hungarian judges (274 persons) to end their careers in 2012, earlier than planned, with all the attendant consequences for the functioning of the judiciary and the length of pending proceedings.

6. 20. On the morning of 11 April 2011 (the day of the vote on the proposals to amend the retirement age of judges), the applicant addressed a letter to the Prime Minister, in which he stressed that the proposal was humiliating and professionally unjustifiable; it infringed the fundamental principles of the independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He refuted accusations of bias in favour of any political ideology within the judiciary, and continued:

   “It is, however, unacceptable if a political party or the majority of Parliament makes political demands on the judiciary and evaluates judges by political standards.”

   In his letter the applicant asked the Prime Minister to use his influence to prevent Parliament from adopting the proposal. On the same day, however, Parliament adopted the proposal (see Relevant Domestic Law below).

7. 21. On 14 April 2011, a joint communiqué was addressed to the Hungarian and European-Union public by the plenary session of the Supreme Court, by the applicant in his capacity as President of the National Council of Justice, and by the presidents of regional and county courts. It argued for the autonomy and independence of the judiciary and criticised the new mandatory retirement age for judges and the proposal to modify the model of judicial self-governance embodied in the National Council of Justice. The relevant extracts from the communiqué read as follows:

   “According to the proposal, the mandatory retirement age of judges will be reduced by eight years as of 1 January 2012. As a result, the tenure of 228 judges (among them 121 judges responsible for court administration and professional supervision) will be terminated on that same date, without any transition period, since they will have turned 62. By 31 December 2012 a further 46 judges will have to terminate their careers. As a consequence of this decision, the rapidity of judicial proceedings will significantly deteriorate (nearly 40,000 cases will have to be reassigned, which may even result in several years’ delay in judicial proceedings, concerning tens of thousands of persons). The administration of the courts will be seriously hindered, since it is extremely difficult to replace dozens of retiring judges.

   The multiple effect of the forced pensioning-off, with no real justification, of highly qualified judges who have several years of experience and practice, most of whom are at the apex of the hierarchy, will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences. Moreover, the proposal is unfair and humiliating with respect to the persons concerned, who took an oath to serve the Republic of Hungary and to administer justice, and who have devoted their lives to the judicial vocation.

   It is incomprehensible why the issue of the retirement age of judges is worth regulation in the Fundamental Law. There is only one answer: by including it in the Fundamental Law, there will be no possibility of contesting this legal rule, which violates the fundamental principles of a democratic state governed by the rule of law, before the Constitutional Court.

   Such an unjustified step implies political motivation.”

8. 22. On 14 June 2011 Bill no. T/3522 on the amendment of certain legislative acts concerning judicial procedure and the judicial system (including the Code of Criminal Procedure) was submitted to Parliament. At the applicant's request, the Criminal Law Division of the Supreme Court prepared an analysis of the Bill, which was communicated to Members of Parliament. On 4 August 2011, as no substantive changes had been made to the Bill prior to its enactment on 4 July 2011 as Act LXXXIX of 2011, the applicant challenged the Act before the Constitutional Court, on the grounds of unconstitutionality and violation of the obligations enshrined in international treaties, making use of that power for the first time in Hungarian history. The Constitutional Court, in its judgment no. 166/2011. (XII. 20.) AB of 19 December 2011, established the unconstitutionality of the impugned provisions and quashed them (notably, the provision concerning the Attorney General's right to establish court competence by derogation from the default statutory rules).

9. 23. Lastly, on 26 October 2011 the applicant addressed to Parliament a detailed analysis of two new Cardinal Bills: the Organisation and Administration of the Courts Bill (no. T/4743) and the Legal Status and Remuneration of Judges Bill (no. T/4744). According to the explanatory memorandum to the Bills, it was proposed that the National Council of Justice be abolished and replaced by a National Judicial Office and a National Judicial Council. The purpose of those proposals was to separate judicial and managerial functions, which had been “unified” in the person of the President of the Supreme Court, who was at the same time president of the National Council of Justice. The proposed reform sought to concentrate the tasks of judicial management in the hands of the president of the new National Judicial Office, while leaving the responsibility for overseeing the uniform administration of justice with the president of the Supreme Court (renamed with the historical appellation “Kúria”).

The applicant also decided to express his opinion directly before Parliament, as permitted by Article 45 § 1 of Parliamentary Decision 46/1994 (IX.30) OGY on the Rules of Parliament. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the draft legislation. He said that it did not address the structural problems of the judiciary, but left them to “the discretion of the executive of an external administration (the President of the proposed National Judicial Office, which would replace the National Council of Justice in managing the courts), who [would be] assigned excessive and, in Europe, unprecedented powers, with no adequate accountability”. The applicant referred to those new powers (to appoint judges and court executives, to issue normative orders and to designate the court in a given case) as “unconstitutional”. In this regard, he stated:

Finally, the applicant again raised in his speech the issue of the new retirement age for judges, saying that it would have a severe effect on the Supreme Court and that the need to have enough judges at the Kúria had not yet been addressed. In this connection, he maintained that the Kúria's main responsibility, that of ensuring consistency in the judicial application of laws, could be met only if that court were able to deliver judgments in an appropriate number and type of cases.

C. Termination of the Applicant's Mandate as President of the Supreme Court

1. 24. The Fundamental Law of 25 April 2011 established that the highest judicial body would be the Kúria (the historical Hungarian name for the Supreme Court). The date of entry into force of the Fundamental Law was scheduled for 1 January 2012.

2. 25. On 14 April 2011, during a debate on the Fundamental Law, a Fidesz politician, Gergely Gulyás, MP, declared on the Inforádió radio station that the President of the Supreme Court would remain the same and that only the name of the institution would change. On 19 October 2011, in an interview on the ATV channel, the State Secretary of Justice, Róbert Répássy, MP, declared that under the Organisation and Administration of the Courts Bill (no. T/4743), the new Kúria would have the same function as the current Supreme Court and that only the Supreme Court's name would change. He said that the legislation “will certainly not provide any legal ground for a change in the person of the Chief Justice”.

3. 26. On 6 July 2011, in the “Position of the Government of Hungary on the Opinion on the Fundamental Law of Hungary adopted by the Venice Commission at its 87^th Plenary Session (Venice, 17-18 June 2011, CDL-AD(2011)016)”, transmitted by the Minister for Foreign Affairs of Hungary, the Government 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. 27. In the period between 19 and 23 November 2011, members of Parliament submitted several amendments proposing that the applicant's mandate as President of the Supreme Court be terminated.

5. 28. On 19 November 2011 Gergely Gulyás submitted a Bill (no. T/4996) to Parliament, proposing an amendment to the 1949 Constitution (then in force). The amendment provided that Parliament would elect the President of the Kúria by 31 December 2011 at the latest. The reasoning of the Bill reads as follows:

   “In view of the Fundamental Law of Hungary and of the modifications to the court system resulting from that Law, in compliance with the Bill on the Transitional Provisions of the Fundamental Law of Hungary, and with a view to ensuring a smooth transition and continuity in the fulfilment of the tasks of the Kúria as from 1 January 2012, this Bill provides that Parliament must elect, by 31 December 2011 and according to the rules laid down in the Fundamental Law, the President of the Kúria who is to take office on 1 January 2012.”

6. 29. On 20 November 2011 two members of the parliamentary majority submitted a Bill (no. T/5005) to Parliament on the Transitional Provisions of the Fundamental Law. Under section 11 of the Transitional Provisions of the Fundamental Law of Hungary Bill, the legal successors of the Supreme Court and the National Council of Justice would be the Kúria, for the administration of justice, and the President of the National Judicial Office, for the administration of the courts. Pursuant to section 11(2), the mandates of the President of the Supreme Court and of the President and members of the National Council of Justice would be terminated upon the entry into force of the Fundamental Law. The reasoning of the Bill stated as follows:

   “The Bill regulates in a comprehensive manner the succession of the Supreme Court and the National Council of Justice and its president, in that the successor body or person shall be different for the respective duties. Having regard to the modifications to the court system, the Bill provides that the term of office of the President of the Supreme Court currently in office, and that of the President and the members of the National Council of Justice, shall be terminated upon the entry into force of the Fundamental Law.”

7. 30. On 23 November 2011 another Member of Parliament submitted a proposal for an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. While the previous versions of the Bill submitted by the Government (on 21 October and 17 November 2011) provided that the term of office of the court executives appointed before 1 January 2012 would last until the date fixed at the time of their appointment, this last mentioned amendment provided for an exception. It sought to terminate ex lege the mandate of the President and Vice-President of the Supreme Court. The reasoning of the proposal read as follows:

   “The aim of this proposal for an amendment, submitted before the final vote, is to ensure the compliance of consolidated Bill no. T/4743/116, by amending its transitional provisions, with the Fundamental Law, having regard to Bill no. T/4996 on the Amendment of the Act XX of 1949 on the Constitution of the Republic of Hungary and also to Bill no. T/5005 on the Transitional Provisions of the Fundamental Law of Hungary, both submitted to Parliament.”

8. 31. On 28 November 2011 Parliament adopted both the Organisation and Administration of the Courts Bill (as Act CLXI) and the Constitution of the Republic of Hungary (Amendment) Bill (as Act CLIX), with the content described above.

9. 32. On 30 December 2011 the Transitional Provisions of the Fundamental Law Bill was adopted without amendmentFootnote ¹ . The Transitional Provisions were published in the Official Gazette on 31 December 2011.

10. 33. As a consequence of the entry into force of all these constitutional and legislative amendments, the applicant's mandate as President of the Supreme Court terminated on 1 January 2012, three and a half years before its expected date of expiry.

11. 34. The applicant remained in office as president of a civil-law division of the Kúria.

D. Election of a new President to the Kúria

1. 35. In order for a new president to be elected to the Kúria in due time, the Constitution of the Republic of Hungary (Amendment) Act (Act CLIX of 2011, adopted on 28 November 2011, see paragraph 31 above) entered into force on 2 December 2011. On 9 November 2011 the Organisation and Administration of the Courts Bill was amended, and an additional criterion for the election of the new president of the Kúria was introduced. This provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term and having served at least five years as a judge (section 114(1) of Act CLXI of 2011 – see Relevant Domestic Law below). On 9 December 2011 the President of the Republic proposed that Parliament elect Péter Darák as President of the Kúria and Tünde Handó as President of the National Judicial Office. On 13 December 2011 Parliament elected those candidates, in line with the proposal by the President of the Republic.

E. Consequences of the early Termination of the Applicant's Mandate as President of the Supreme Court

1. 36. Firstly, the applicant lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court was entitled throughout the period of the fixed presidential term.

2. 37. Secondly, the legislation dealing with certain post-term benefits for outgoing presidents of the Supreme Court (Remuneration and Allowances Act 2000) was repealed as from 1 January 2012. Section 227(1) of the Legal Status and Remuneration of Judges Act 2011 (as amended on 28 November 2011, in force from 1 January 2012) supplemented this abrogation, and stipulated that the repealed legislation would be applied to any former president of the Supreme Court only to the extent that he or she was entitled to the allowance specified in sections 26(1) and 22(1) (pension supplement for life), had reached retirement age at the time of the entry of force of the Act and had requested the allowance. Since the applicant had not attained retirement age by 1 January 2012, he could not claim payment of that post-function benefit.

A. Constitution of 1949

1. 38. The relevant articles of the Constitution (as amended and in force until its replacement by the Fundamental Law of Hungary, with effect on 1 January 2012) provided as follows:

   Article 7

   “(1) The legal system of the Republic of Hungary accepts the generally recognised principles of international law, and shall harmonise the country's domestic law with the obligations assumed under international law.

   …”

   Article 47

   “(1) The Supreme Court shall be the highest judicial organ of the Republic of Hungary.

   (2) The Supreme Court shall ensure uniformity in the application of the law by the courts; its uniformity resolutions (jogegységi határozat) shall be binding on all courts.”

   Article 48

   “(1) The President of the Supreme Court shall be elected by Parliament upon the recommendation of the President of the Republic; its vice-presidents shall be appointed by the President of the Republic upon the recommendation of the President of the Supreme Court. A majority of two-thirds of the votes of Members of Parliament shall be required to elect the President of the Supreme Court.

   …

   (3) Judges may only be removed from office on the grounds and in accordance with the procedures specified by law.”

   Article 50

   “…

   (3) Judges are independent and answer only to the law. Judges may not be members of political parties and may not engage in political activities.

   …”

   Article 57

   “(1) In the Republic of Hungary everyone is equal before the law and has the right to have the accusations brought against him or her, as well as his or her rights and duties in legal proceedings, judged in a just and public trial by an independent and impartial court established by law.

   …”

   Article 61

   “(1) In the Republic of Hungary everyone has the right to freely express his or her opinion, and furthermore to access and distribute information of public interest.

   …”

B. Organisation and Administration of the Courts Act (Act LXVI of 1997)

1. 39 To fulfil the task of ensuring the uniformity in the application of the law by the courts, the Supreme Court was empowered to adopt uniformity resolutions (section 25 (c) of the Act, jogegységi határozat) and to publish guiding resolutions (section 27(2), elvi bírósági határozat).

2. 40 Section 62 of the Organisation and Administration of the Courts Act listed the president of a court among the so-called “court executives”, that is, those judges responsible for the management and administration of courts and judicial organisational units.

3. 41 Under section 69 of the Act, court executives were appointed for six years.

4. 42 Section 73 of the Act contained an exhaustive list of reasons for terminating the mandates of court executives. It provided that

   “[t]he term of office of a court executive shall come to an end by:

   1. (a) mutual agreement,

   2. (b) resignation,

   3. (c) dismissal,

   4. (d) the expiry of the period of the term of office,

   5. (e) the termination of the person's judicial mandate.”

5. 43. Under section 74/A(1) of the Act, if an assessment of the court executive's management activity established his or her incompetence for such a managerial position, the court executive was to be dismissed from his or her office with immediate effect. A dismissed court executive was entitled to seek a legal remedy before the Service Tribunal to contest the dismissal within fifteen days of service of a dismissal notice (section 74/A(2)).

6. 44. The Act established the National Council of Justice and added the function of President of that Council to that of President of the Supreme Court, the roles to be held simultaneously. The President of the National Council of Justice was under an explicit statutory obligation to express an opinion on draft legislation that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice (section 46(1)(q) of the Act).

C. Legal Status and Remuneration of Judges Act (Act LXVII of 1997)

1. 45. Under section 57(2), sub-paragraphs (ha) and (hb) of the Act, a judge was entitled to serve beyond the general retirement age, up to the age of seventy.

D. Parliamentary Decision 46/1994. (IX.30.) OGY on the Rules of Parliament

1. 46. Section 45 (1) of Parliamentary decision 46/1994. (IX.30.) OGY on the Rules of Parliament provided as follows:

   “The President of the Republic, the members of the Government, the President of the Constitutional Court, the President of the Supreme Court, the Chief Prosecutor, the Ombudsman, the President of the State Audit Office, and also persons required to report to Parliament during debates on their reports and Hungarian members of the European Parliament during debates on matters of European integration, shall be entitled to take part and speak in sittings of Parliament.”

E. Constitution of the Republic of Hungary (Amendment) Act (Act CLIX of 2011), which entered into force on 2 December 2011

1. 47. The Constitution of Hungary of 1949 was amended as follows with regard to the election of the President of the Kúria:

   Section 1

   “The Constitution shall be amended with the following section:

   “Section 79. In accordance with Article 26 § 3 of the Fundamental Law, Parliament shall elect the President of the Kúria by 31 December 2011 at the latest.”

F. Fundamental Law of Hungary of 25 April 2011, which entered into force on 1 January 2012

1. 48. Articles 25 and 26 of the Fundamental Law provide as follows:

   Article 25

   “(1) The courts shall administer justice. The supreme judicial body shall be the Kúria.

   (2) The courts shall decide on:

   1. (a) criminal matters, civil disputes, and other matters defined by law;

   2. (b) the legitimacy of administrative decisions;

   3. (c) conflicts between local ordinances and other legislation, and on their annulment;

   4. (d) the establishment of non-compliance by a local authority with its statutory legislative obligations.

   (3) In addition to the responsibilities defined by paragraph (2), the Kúria shall ensure uniformity in the judicial application of laws and shall make decisions accordingly, which shall be binding on the courts.

   …

   (8) The detailed rules for the organisation and administration of the courts, and of the legal status and remuneration of judges shall be regulated by a Cardinal Act (sarkalatos törvény)Footnote ² .”

   Article 26

   “(1) Judges shall be independent and only subordinated to laws, and may not be instructed in relation to their judicial activities. Judges may be removed from office only for the reasons and in a procedure defined by a Cardinal Act. Judges shall not be affiliated to any political party or engage in any political activity.

   (2) Professional judges shall be appointed by the President of the Republic as defined by a Cardinal Act. No person under thirty years of age shall be eligible for the position of judge. With the exception of the President of the Kúria, no judge may serve after reaching the general retirement age.

   (3) The President of the Kúria shall be elected by Parliament from among the judges for nine years on the proposal of the President of the Republic. The election of the President of the Kúria shall require a two-thirds majority of the votes of Members of Parliament.”

G. Transitional Provisions of the Fundamental Law of Hungary, which entered into force on 1 January 2012

1. 49. The Transitional Provisions of the Fundamental Law of Hungary read, in so far as relevant, as follows:

   Section 11

   “(1) The legal successor to the Supreme Court, the National Council of Justice and their President shall be the Kúria for the administration of justice and the President of the National Judicial Office for the administration of the courts, with any exceptions defined by the relevant Cardinal Act.

   (2) The mandates of the President of the Supreme Court and the President and members of the National Council of Justice shall be terminated when the Fundamental Law comes into forceFootnote ³ .”

   Section 12

   “(1) If a judge has reached the general retirement age defined by Article 26 § 2 of the Fundamental Law before 1 January 2012, his or her service shall be terminated on 30 June 2012. If a judge reaches the general retirement age defined by Article 26 § 2 of the Fundamental Law in the period between 1 January and 31 December 2012, his or her service shall be terminated on 31 December 2012.”

   Section 31

   “(2) … The Transitional Provisions shall form part of the Fundamental LawFootnote ⁴ .”

H. Organisation and Administration of the Courts Act (Act CLXI of 2011), which entered into force on 1 January 2012

1. 50. The relevant parts of the Organisation and Administration of the Courts Act read as follows:

   Chapter II

   The organisation of the courts

   6. The Kúria

   Section 24

   “The Kúria shall:

   1. (a) adjudicate, in the cases specified in an Act, on appeals lodged against the decisions of a tribunal or a high court;

   2. (b) adjudicate on motions for extraordinary review of a final court decision;

   3. (c) adopt uniformity resolutions (jogegységi határozat), which shall be binding on all courts;

   4. (d) analyse the judicial practice in cases closed with a final judgment, explore and examine the case-law of the courts;

   5. (e) publish guiding resolutions (elvi bírósági határozat) [adopted by the Kúria] and guiding decisions (elvi bírósági döntés) [adopted by the lower courts];

   6. (f) adjudicate on the conflict of local ordinances with other legislation and on their annulment;

   7. (g) adjudicate on the establishment of non-compliance by a local authority with its statutory legislative obligations;

   8. (h) act in other cases falling within its scope of competence.”

   Chapter VIII

   President of the Kúria and court executives

   32. President of the Kúria

   Section 114

   “(1) The President of the Kúria shall be elected by Parliament from among judges appointed for an indeterminate duration and with at least 5 years of judicial service, in accordance with Article 26 § 3 of the Fundamental Law.”

   Chapter XV

   Transitional Provisions

   58. Election of the President of the National Judicial Office and the President of the Kúria for the First Time

   Section 177

   “(1) The President of the Republic shall nominate the President of the National Judicial Office and the President of the Kúria for the first time by 15 December 2011, at the latest. The nominees shall be heard by the committee of Parliament responsible for justice.

   (2) Parliament shall elect the President of the National Judicial Office and the President of the Kúria for the first time by 31 December 2011. …”

   60. Determination of Date of Expiry of Mandates and Beginning of New Mandates

   Section 185

   “(1) The mandates of the National Council of Justice (hereinafter the NCJ) and its members, its President as well as the President and the Vice-President of the Supreme Court and the Head and Deputy Head of the Office of the NCJ shall terminate upon the entry into force of the Fundamental Law.

   (2) The mandates of the President of the National Judicial Office and the President of the Kúria shall commence as of 1 January 2012. …”

   Section 187

   “The mandates of court executives appointed before 1 January 2012 shall be valid for the term determined in their appointments, except as set forth in section 185(1).”

   Section 188

   “(1) The legal successor to the Supreme Court, the National Council of Justice and its President shall be the Kúria for the purposes of activities related to the administration of justice, and – in respect of the administration of courts – the President of the National Judicial Office, except as determined in the Cardinal Acts.”

2. 51. Under section 173 of the Act, section 177 entered into force on the day following its promulgation (3 December 2011), and sections 185, 187 and 188 entered into force on 1 January 2012.

I. Legal Status and Remuneration of Judges Act (Act CLXII of 2011), which entered into force on 1 January 2012

1. 52. The relevant parts of the Legal Status and Remuneration of Judges Act, as in force at the material time, provided as follows:

   Section 90

   “A judge shall be exempted [from judicial service]:

   …

   (h) if the judge

   (ha) has reached the applicable retirement age (hereinafter referred to as the “upper age limit”). This provision does not apply to the President of the Kúria …”

   Section 227

   “(1) The person who occupied the office of President of the Supreme Court prior to the entry into force of the present Act shall be governed by the provisions of Act XXXIX of 2000 on the remuneration and benefits of the President of the Republic, the Prime Minister, the Speaker of the House, the President of the Constitutional Court and the President of the Supreme Court, inasmuch as he shall be entitled to the benefits under section 26(1) and section 22(1) of Act XXXIX of 2000 on the remuneration and benefits of the President of the Republic, the Prime Minister, the Speaker of the House, the President of the Constitutional Court and the President of the Supreme Court if he had reached retirement age at the time of the entry into force of the present Act and requested the benefits.”

   Section 230

   “(1) The provisions of the present Act shall govern judges reaching the upper age limit before 1 January 2013, subject to the differences set forth in subsections (2) and (3).

   (2) If a judge has reached the upper age limit before 1 January 2012, the initial date of the exemption period is 1 January 2012, while the closing date is 30 June 2012, and his judicial mandate shall cease as of 30 June 2012. The proposal concerning exemption shall be made at a time which permits the adoption of the decision on exemption on 30 June 2012, at the latest.

   (3) If the judge reaches the upper age limit between 1 January 2012 and 31 December 2012, the initial date of the exemption period is 1 July 2012, while the closing date is 31 December 2012, and his judicial mandate shall cease as of 31 December 2012. The proposal concerning exemption shall be made at a time which permits the adoption of the decision on exemption on 31 December 2012, at the latest.”

J. Judgment no. 33/2012. (VII. 17) AB of the Constitutional Court, of 16 July 2012

1. 53. The Hungarian Ombudsman appealed to the Constitutional Court against the retrospective lowering of the retirement age of judges. In its judgment of 16 July 2012, the Constitutional Court declared unconstitutional and consequently annulled the provisions on the compulsory retirement age of judges (sections 90(ha) and 230 of the 2011 Act) as of 1 January 2012 (the date of entry into force of the Legal Status and Remuneration of Judges Act). The Constitutional Court held that the new regulation violated the constitutional requirements for judicial independence on both “formal” and “substantive” grounds. From a formal perspective, a Cardinal Act ought to determine the length of judicial service and the retirement age, in order to guarantee the irremovability of judges. Reference to the “general retirement age” in an ordinary Act did not fulfil that requirement. With regard to the substantive unconstitutionality of the provision, the new regulation had resulted in the removal of judges within a short period of three months. Notwithstanding the relative freedom of the legislature to determine the maximum age of serving judges, and the fact that no specific age can be deduced from the Fundamental Law, the Constitutional Court held that the introduction of a lowered retirement age for judges had to be done gradually, with an appropriate transition period and without violating the principle of the irremovability of judges. The greater the difference between the new retirement age and the age of seventy years, the longer the transitional period required for introducing a lower retirement age. Otherwise, the irremovability of judges, which constituted an essential element of the independence of the judiciary, would be violated.

2. 54. Following the Constitutional Court's judgment of 16 July 2012, Parliament adopted Act no. XX of 2013 repealing section 230, amending section 91 and adding section 233/C to Act CLXII of 2011, with effect from 2 April 2013. Under the modified scheme, the reduction of the compulsory retirement age to a unified limit of 65 years will be effective as of 1 January 2023. Transitional provisions apply to the period between 2 April 2013 (the entry into force of the amendment) and 31 December 2022. During this interval, the age-limit for compulsory retirement will vary between 70 and 65 years, according to the date of birth of the person concerned (the older a judge is, the longer the preparation time accorded to him or her before compulsory retirement). For those judges who had already been affected by the rules of compulsory retirement and forced to retire, the new law introduced the possibility of choosing, within a 30-days’ time-limit to be calculated from the amendment's entry into force, from three options. Firstly, they could request a stand-by post at the court from which they had retired, meaning that they would receive the difference between their pension allowance and 80% of their last basic salary (i.e. calculated without the additional allowances received for holding senior positions, etc.) and that, once in every three-year period, they may be ordered to perform judicial or managerial tasks for a maximum of two years. Secondly, they could apply to be reinstated to their normal judicial service. In that case, they would also be entitled to salary arrears for the period of their unconstitutionally ordered retirement. However, they could not be reinstated to their previous senior positions, such as court president (vice-president) or head of division (deputy head of division), unless that position had not been filled in the meantime. Thirdly, those who did not request reinstatement or placement in a stand-by post were entitled to lump-sum compensation, equal to the amount of one annual salary.

K. Judgment no. 3076/2013. (III. 27.) AB of the Constitutional Court, of 19 March 2013

1. 55. The Vice-President of the Supreme Court, appointed by the President of the Republic for six years from 15 November 2009 on a proposal by the applicant, was also removed from his executive position as of 1 January 2012 by virtue of section 185(1) of the Organisation and Administration of the Courts Act (Act CLXI of 2011), which stated that the mandate of the Vice-President of the Supreme Court was to be terminated when the Fundamental Law enters into force (see paragraph 50 above). The former Vice-President submitted a constitutional complaint to the Constitutional Court, alleging that the termination of his position violated the rule of law, the prohibition on retroactive legislation and his right to a remedy. In its judgment no. 3076/2013. (III. 27.) AB, adopted by eight votes to seven, the Constitutional Court rejected the constitutional complaint. It held that the premature termination of the claimant's term of office as Vice-President of the Supreme Court had not violated the Fundamental Law, since it was sufficiently justified by the full-scale reorganisation of the judicial system and the important changes in the tasks and competences of the President of the Kúria. It noted that the Kúria's tasks and competences had been broadened, in particular with regard to the supervision of the legality of municipal council regulations. The relevant parts of the judgment read as follows:

   “[30] 1. The impugned statutory provision terminated the mandate of an executive of an organ of the judiciary, an independent branch of State power, whose status was regulated by the Constitution.

   [31] The Vice-President of the Supreme Court was one of the executive officials of the judiciary, whose term of office was regulated by Article 48 (1) of the Constitution. This Constitutional provision provided that the Vice-President of the Supreme Court was to be appointed by the President of the Republic upon the proposal of the Supreme Court's President. Under section 69(1) of the old AOAC [Act LXVI of 1997 on the Organisation and Administration of the Courts], the Vice-President's term of office should last for a fixed duration of 6 years. One element of the system of separation of powers was that the Constitution distinguished the appointment of the executives of the highest judicial forum from the ordinary system for appointing court executives by placing their appointment in the hands of another branch, namely Parliament in the case of the Supreme Court's President, and the President of the Republic in the case of its Vice-President. The fact that the former AOAC stipulated a longer fixed-term office for court executives than the mandate of the Government (thus overlapping governmental cycles) constituted one of the constitutional guarantees of the independence of the judiciary, a separate branch within the State.

   [32] The Fundamental Law and the new AOAC maintained this distinction with regard to the executives of the Kúria. Although the Fundamental Law does not regulate the appointment and dismissal of the Vice-President, the new AOAC contains a regulation which is similar to the previous one. According to its section 128 (1), Vice-Presidents of the Kúria shall be appointed by the President of the Republic on proposals from the Kúria's President. Their term of office lasts for a determinate period of six years, as stipulated in section 127 (1). Pursuant to this regulation, the declaration of the termination of the Vice-President's term of office by a unilateral State decision, that is, dismissal, is also within the power of the President of the Republic (see decision 176/1991. (IX. 4.) KE of the President of the Republic).

   [33] Under section 73 of the former AOAC and section 138 of the new AOAC, the term of office of a judicial executive shall be terminated, as a general rule, upon the expiry of the determinate period of appointment. However, it may be terminated sooner in the event of: resignation, mutual agreement, loss of judicial status and (if an appraisal concludes that the executive is inapt) dismissal.

   [34] 2. Taking into account the Constitutional Court's case-law, it is observed that the shortening of fixed-term appointments via legislation has not been automatically declared unconstitutional if certain conditions were met. The Constitutional Court established [in its judgment no. 5/2007. (II. 27.) AB] that “[t]he shortening of fixed-term appointments of State officials may only result from objective or subjective statutory causes (resignation, decease, establishment of incompatibility, application of a specified cause for dismissal or another reason directly affecting the term of office, such as structural modification of the institution)” (ABH 2007, 120, 126.). The Constitutional Court holds that, in addition to organisational restructuring, an important change in the organisation's functions, that is, in its powers and tasks, may warrant legislative intervention. Specifically, by the time of the selection of the executive in office, competencies required for the new functions of the organisation could not have been assessed. However, it cannot be ruled out that the organisation's new tasks would require a person with different attitudes, professional experience and practice.

   [35] Accordingly, the Constitutional Court had to examine in the present case whether the entry into force of the Fundamental Law affected the functions and tasks of the highest judicial forum in a way which would justify the premature termination of the Vice-President's term of office.

   [36] The Supreme Court was renamed Kúria. The Fundamental Law and the new AOAC modified thoroughly the central administration of the judicial system. Article 11 of the Transitional Provisions of the Fundamental Law separated the professional guidance of judicial activities and the organisational management of the judicial system from each other, on both an institutional and personal level. It provided that the successors to the Supreme Court, the National Council of Justice and its President are to be the Kúria in respect of adjudicating activities, and, in respect of court management – unless otherwise provided in a cardinal act – the President of the National Judicial Office. It is because of this modification of the central management of the judiciary that Article 11 (2) of the Transitional Provisions terminated the term of office of the President of the Supreme Court and of the President and the members of the National Council of Justice upon the entry into force of the Fundamental Law. This provision does not put an end to the Vice-President's term of office, despite the fact that his mandate was regulated in the Constitution.

   [37] With the entry into force of the Fundamental Law and the new AOAC, the functions of the Kúria broadened and new tasks have been assigned to it. Pursuant to the Fundamental Law, it was given jurisdiction to supervise the legality of municipal council regulations and to establish whether or not local government had failed to comply with their legislation-related statutory obligations. The new AOAC contains a new chapter on the local government chamber of the Kúria as well as detailed regulations on the procedural rules related to the above-mentioned competences.

   [38] The Kúria's competences in safeguarding the uniform application of law [coherence of the case-law] have also been extended. Besides adopting resolutions to promote the unity of jurisprudence (jogegységi határozat), it became competent to publish judicial resolutions of theoretical importance (elvi bírósági határozat) and to analyse the case-law on the basis of final and binding decisions.

   [39] Since safeguarding the consistent application of law became one of the main tasks of the Kúria, its President became responsible, besides internal management of the Kúria, for providing professional guidance on the monitoring, development and consistency of the case-law with regard to the entire court system.

   [40] The new AOAC, in its separate chapter on the uniform application of law, contains more detailed and in-depth regulations as regards the tasks and powers already contained in the old AOAC and vests new tasks in both the judicial organisation as a whole and in its executives. Whereas the relevant chapter of the old AOAC referred to the President of the Supreme Court only twice, the new AOAC designates the President or the Vice-President as holders of thirteen specific tasks and powers. In particular, the presidents of the Court of Appeals must inform the President of the Kúria about any decision of theoretical importance adopted by a court under their supervision, about emerging practice based on divergent principles or about final judgments based on divergent principles. The Presidents and Heads of Divisions of High Courts, as well as the Heads of Regional Administrative and Labour Law Divisions, have similar obligations to inform the President of the Kúria directly. A proposal for the publication of a decision of theoretical importance must be addressed to the President of the Kúria, and it is the President of the Kúria who should be notified by the President of the National Judicial Office about the necessity of initiating a uniformity procedure.

   [41] It is the President of the Kúria who defines on an annual basis the subjects to be examined by the case-law analysis groups. He or she appoints the heads and members of these groups. If the analysis indicates the need for legislative amendments, it is the President of the Kúria who proposes to the President of the National Judicial Office that he or she submit such a motion. It is the President of the Kúria who proposes to the Publication Panel the publication of a decision qualifying as a decision of theoretical importance. He or she is entitled to order that uniformity procedure be conducted, based on a proposal from the President of the Kúria, who also presides in such proceedings (in addition to the Vice-President and the Head or Deputy-head of the competent Division). In uniformity proceedings related to more than one Division, it is only the President or Vice-President of the Kúria who may preside. Similarly, if the aim of the uniformity proceedings is to modify or abrogate a previous uniformity resolution or to take a stance on a question of principle, the uniformity panel may only be presided by the President or the Vice-President of the Kúria.

   [42] Section 123 (2) of the new AOAC provides that “the Vice-President of the Kúria may replace the President … with full power”. It is therefore clear that the modification of the judicial system seriously affects not only the President's but also the Vice-President's functions. It follows from the possibility of a replacement exercising the full power of the President (which may occur at any time if the President is hindered for any reason or if the position is vacant) that there must be constant and close cooperation between the President and the Vice-President. Besides acting as a replacement, the Vice-President “fulfils the tasks vested in him by the Rules of Court” (see section 123 (2) of the new AOAC). This legal authority enables the Vice-President to fulfil some of the President's tasks on a constant basis and to relieve him or her [of certain duties].

   [43] In the Constitutional Court's opinion, the full-scale restructuring of the judicial system and the important changes relating to the functions and tasks of the Kúria and its President have significantly modified the legal position of the President compared to the date that the Vice-President was appointed. All this necessarily entails the simultaneous modification of the functions, tasks and competences of the Vice-President.

   [44] In the light of these changes, the relationship of trust between the President and the Vice-President, enshrined in Constitutional and statutory regulations, is of increased importance.

   [45] Consequently, the Constitutional Court finds that these changes provide sufficient justification for the premature termination of the applicant's term of office.

   …”

2. 56. Seven judges dissented and considered that the changes with regard to the judicial system, the new Kúria and the person of its President had not fundamentally affected the status of the Vice-President. The position of the Vice-President within the organisation of the supreme judicial instance did not change. Under the 1997 Organisation and Administration of the Courts Act, the Vice-President had already been entitled to replace the President of the Supreme Court with regard only to managerial tasks at the Supreme Court but not with regard to his or her functions as President of the National Council of Justice. The dissenting judges concluded that the premature termination of the applicant's term of office had weakened the guarantees for the separation of powers, had been contrary to the prohibition on retroactive legislation and had breached the principle of the rule of law and the right to a remedy.

A. Opinions of the Venice Commission

1. 57. The relevant extracts from the Opinion on the Fundamental Law of Hungary adopted by the Venice Commission at its 87^th Plenary Session (Venice, 17-18 June 2011, CDL-AD(2011)016), read as follows:

   “107. According to Article 25 (1) of the new Constitution, the ‘Curia’ (the Hungarian historical name for the Supreme Court), will be the highest justice authority of Hungary. In the absence of transitional provisions and despite the fact that the election rules for its president remain unchanged in the new Constitution a question arises: will this change of the judicial body's name result in replacement of the Supreme Court's president by a new president of the ‘Curia’? As to the judges, they ‘shall be appointed by the President of the Republic as defined by a cardinal Act.’ (Article 26 (2)). This also leaves of margin of interpretation as to the need to change (or not) the composition of the supreme body.

   108. As stipulated by Article 26 (2), the general retirement age will also be applied to judges. While it understands that the lowering of the judge's retirement age (from 70 to 62) is part of the envisaged reform of the judicial system, the Commission finds this measure questionable in the light of the core principles and rules pertaining to the independence, the status and immovability of judges. According to different sources, this provision entails that around 300 of the most experienced judges will be obliged to retire within a year. Correspondingly, around 300 vacancies will need to be filled. This may undermine the operational capacity of the courts and affect continuity and legal security and might also open the way for undue influence on the composition of the judiciary. In the absence of sufficiently clear information on the reasons having led to this decision, the Commission trusts that adequate solutions will be found, in the context of the reform, to address, in line with the requirements of the rule of law, the difficulties and challenges engendered by this measure.

   …

   140. As previously indicated, the reference in the second paragraph of the Closing Provisions to the 1949 Constitution seems to be in contradiction with the statement, in the Preamble, by which the Hungarian 1949 Constitution is declared as invalid. The Venice Commission tends to interpret this apparent inconsistency as a confirmation of the fact that the said statement does not have legal significance. Nevertheless, it is recommended that this is specifically clarified by the Hungarian authorities. The adoption of transitional provisions (as required by the third paragraph of the Closing Provisions), of particular importance in the light of the existence, for certain provisions of the new Constitution, of possibly diverging interpretations, could be used as an excellent opportunity for providing the necessary clarifications. This should not be used as a means to put an end to the term of office of persons elected or appointed under the previous Constitution.”

2. 58. In the Position of the Government of Hungary on this Opinion, transmitted by the Minister for Foreign Affairs of Hungary on 6 July 2011 (see CDL(2011)058), the Government fully subscribed to the suggestion in paragraph 140 of the Opinion and 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.

3. 59. The relevant extracts from the Opinion on the Legal Status and Remuneration of Judges Act (Act CLXII of 2011) and the Organisation and Administration of the Courts Act (Act CLXI of 2011), adopted by the Venice Commission at its 90^th Plenary Session (Venice, 16-17 March 2012, CDL-AD(2012)001), read as follows:

   “2. The President of the Curia

   111. In its opinion on the new Constitution, the Venice Commission appealed to the Hungarian authorities that the occasion of adopting transitional provisions ‘should not be used as a means to put an end to the term of office of persons elected or appointed under the previous Constitution’. In its reply to the Venice Commission, the Hungarian Government pointed out that ‘Hungary fully subscribes to this suggestion and assures the Commission that the drafting of transitional provisions will not be used to unduly put an end to the terms of office of persons elected under the previous legal regime.’

   112. Article 25 of the Fundamental Law provides that the supreme judicial body shall be the Curia. According to Art. 11 of the Temporary Provisions of the Fundamental Law, the Curia is the heir (legal successor) to the Supreme Court. All judges of the Supreme Court remained in office as judges with the exception of its President. Section 114 AOAC [Organisation and Administration of the Courts Act] established a new criterion for the election of the new President, which leads to the ineligibility of the former President of the Supreme Court as President of the Curia. This criterion refers to the time served as a judge in Hungary, not counting the time served as a judge for instance in a European Court. Many believe that the new criterion was aimed at preventing an individual person – the actual president of the Supreme Court - from being eligible for the post of the President of the Curia. Although the Law was formulated in a general way, its effect was directed against a specific person. Laws of this type are contrary to the rule of law.

   113. Other countries have rules that accept time periods that judges have spent abroad. Section 28.3 ALSRJ [Legal Status and Remuneration of Judges Act] states that a judge's long-term secondment abroad shall be regarded as time completed at the service post occupied prior to the commencement of his or her time abroad. The Law does not provide for a minimum time a judge must have spent in Hungary before being posted abroad. Therefore, regulations of equivalence between national and international functions should be established, particularly with regard to requirements that a person has to fulfil in order to be appointed e.g. President of the Curia. Furthermore, it is highly uncommon to enact regulations that are retroactive and lead to the removal from a high function such as the President of the Curia.

   114. The unequal treatment between the judges of the Supreme Court and their President is difficult to justify. The Hungarian authorities seem to argue that the nature of the tasks of the President of the Curia and of the Supreme Court are radically different, and that the latter would be more engaged in administrative matters as the President of the previous National Council of the Judiciary, whereas the President of the Curia would deal more with substantive law and ensure the uniformity of the case-law. However, this argument is not convincing. The experience of the European Court of Human Rights could be particularly useful for the tasks of the President of the Curia.

   115. Since the provision of the Fundamental Law concerning the eligibility to become President of the Curia might be understood as an attempt to get rid of a specific person who would be a candidate for the President, who has served as president of the predecessor of the Curia, the law can operate as a kind of a sanction of the former president of the Supreme Court. Even if this is not the case, the impression, that this might be the case, bears the risk of causing a chilling effect, thus threatening the independence of the judiciary.”

4. 60. The relevant extracts from the Opinion on the Cardinal Acts on the Judiciary that were amended following the adoption of the above-mentioned Opinion CDL-AD(2012)001 on Hungary, adopted by the Venice Commission at its 92^nd Plenary Session (Venice, 12-13 October 2012, CDL-AD(2012)020), read as follows :

   “XII. Transitional issues - Retirement of judges and President of the Curia

   74. The amendments to the ALSRJ (Act CLXII of 2011 on the Legal Status and Remuneration of Judges) did not pertain to the criticisms expressed in the Opinion of the Venice Commission on the provisions on the retirement age. All those judges who would have reached the age limit by 31 December 2012 at the latest were released by presidential order of 7 July 2012.

   75. The Venice Commission acknowledges the judgment no. 33/2012 (VII. 17) AB határozat of 16 July 2012 of the Hungarian Constitutional Court, which declared the sudden reduction of the upper-age limit for judges unconstitutional. It trusts that the Hungarian authorities will respect this judgment and ensure its implementation, i.e. re-instate the former judges to their previous positions. It seems that the labour courts have started to reinstate the retired judges. The Venice Commission's delegation has however learned that the implementation of this judgment has resulted in considerable legal uncertainty. While the legal basis of early retirement was annulled with ex tunc effect, the individual resolutions of the President of Hungary, which dismissed some ten per cent of the Hungarian judges, are considered to remain in force, even if their legal basis had ceased to exist. The President of Hungary did not repeal them. The Legislator should adopt provisions re-instating the dismissed judges in their previous position without requiring them to go through a re-appointment procedure.

   76. The President of the NJO [National Judicial Office] invited the judges concerned to appeal to the labour courts in order to have their dismissal reversed. Several judges already won their cases before the labour courts, but these judgments were appealed against by the President of the NJO because she disagreed with their reasoning. Most importantly, even final judgments of the labour courts would not result in a reinstatement of the judges concerned in their previous position, but they will go through a new appointment process and could be assigned to other courts than those, which they belonged to before their dismissal.

   77. In September 2012, the Hungarian Government introduced the legislative proposal T/8289, which would amend the Transitory Provisions of the Fundamental Law, introducing a new retirement age of 65 years for judges and prosecutors. Judges who are older than 65 would (after their re-appointment) be able to continue in office for one year before they would have to retire. The legislative proposal remains however silent on how the dismissed judges should be reinstated, leaving open only the way through the labour courts.

   78. The Commission's delegation was told that automatic reinstatement would be impossible because new judges had been appointed in the meantime and not all judges wished to be reinstated. The Commission is of the opinion that it should be possible to find a legislative solution that takes into account the various cases.

   79. Furthermore, the legislative proposal provides that judges who are over the age of 62 cannot have leading positions in the courts. This concerns reinstated judges but in the future also all other judges who turn 63. They would lose their leading position and would have to terminate their career as an ordinary judge. Apart from the fact that these judges are the most experienced to lead the courts, such a limitation constitutes evident age discrimination. The delegation was told that these experienced judges should train younger judges rather than hold leading positions in courts. This argument is hard to follow because younger judges learn from older ones precisely when they see how they act in leading positions.

   80. The situation of the dismissed judges is very unsatisfactory. The Legislator should adopt provisions re-instating dismissed judges who so wish in their previous position without requiring them to go through a re-appointment procedure.

   81. The Hungarian Legislator did not address the remarks on the eligibility to become President of the Curia, which should be revised.”

B. The Council of Europe Commissioner for Human Rights

1. 61. The relevant extracts from the press release published on 12 January 2012 by the Council of Europe Commissioner for Human Rights read as follows:

   “Furthermore, the Commissioner has noted steps taken in Hungary which might undermine the independence of the judiciary. As a consequence of the lowering of the retirement age for judges, more than 200 new judges will now have to be appointed. This measure has been accompanied by a change in the procedure for such appointments, which now rests on the decision of a single politically appointed individual. Moreover, the Commissioner considers it unfortunate that, as a consequence of the new law on the judiciary, the mandate of the President of the Supreme Court has been terminated before the end of the regular term. The approach whereby judges are appointed by the President of the National Judicial Office, who is nominated by the government for nine years, gives rise to serious reservations. The judiciary must be protected from undue political interference.”

C. The Parliamentary Assembly of the Council of Europe

1. 62. On 10 June 2013 the Committee on the Honouring of Obligations and Commitments by the Member States (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe adopted a report on the “Request for the opening of a monitoring procedure in respect of Hungary”. The Monitoring Committee recommended opening a monitoring procedure in respect of Hungary because of serious and sustained concerns about the extent to which the country was complying with its obligations to uphold the highest possible standards on democracy, human rights and the rule of law. The relevant extracts of the explanatory memorandum to the report concerning the applicant's case read as follows:

   “4.3.3. The dismissal of the President of the Supreme Court

   113. The Curia that was established by the Fundamental Law is the legal successor to the Supreme Court of Hungary. The Cardinal Act on the Judiciary therefore provides that all judges of the Supreme Court can serve until the end of their mandate. However, an exception was made for the President of the Supreme Court, who needed to be re-elected. In addition, a new election criterion for the President of the Supreme Court was adopted. According to this new criterion, a candidate must have at least five years’ experience as a judge in Hungary. Time served on international tribunals is not taken into account.

   114. The unequal treatment of the President of the Supreme Court is highly questionable. These new provisions are widely seen as being solely adopted to dismiss the sitting President of the Supreme Court, Mr Baka, who in the past had been critical of the government's policies of judicial reform and who had successfully challenged a number of government decisions and laws before the Constitutional Court. Mr Baka was the Hungarian Judge to the European Court of Human Rights from 1991 to 2007, and was elected President of the Supreme Court by the Hungarian parliament in June 2009. Mr Baka had not previously served a five year term as a judge in Hungary, and was therefore, despite his 17 years of experience as a judge on the ECHR, ineligible for the post of President of the Curia. The widespread perception that these legal provisions were adopted against a specific person is strengthened by the fact that in June 2011 the parliament adopted a decision that suspended all appointment procedures for judges until 1 January 2012, when Mr Baka would no longer be in office. This despite the backlog in cases that is often mentioned by the authorities as one of the underlying reasons for the reform of the judiciary. As mentioned by the Venice Commission, generally formulated legal provisions that are in reality directed against a specific person or persons are contrary to the rule of law. In addition the politically motivated dismissal of the President of a Supreme Court could have a chilling effect that could threaten the independence of the judiciary.”

2. 63. On 25 June 2013 the Parliamentary Assembly decided not to open a monitoring procedure in respect of Hungary, but resolved to follow the situation in the country closely. The Parliamentary Assembly called on the Hungarian authorities to continue their open and constructive dialogue with the Venice Commission (Resolution 1941(2013)).

D. The European Union

A. The United Nations

1. 72. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The relevant points read as follows:

   “8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

   …

   12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

   …

   18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

   …

   20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”

2. 73. In its General Comment no. 32 on Article 14 of the International Covenant on Civil and Political Rights (Right to equality before courts and tribunals and to a fair trial) published on 23 August 2007, the United Nations Human Rights Committee stated as follows:

   “19. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

   20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.”

3. 74. In the case of Pastukhov v. Belarus, Communication No. 814/1998, 17 September 2003, the Human Rights Committee stated as follows:

   “7.3 The Committee takes note of the author's claim that he could not be removed from the bench since he had, in accordance with the law in force at the time, been elected a judge on 28 April 1994 for a term of office of 11 years. The Committee also notes that presidential decree of 24 January 1997 N^o 106 was not based on the replacement of the Constitutional Court with a new court but that the decree referred to the author in person and the sole reason given in the presidential decree for the dismissal of the author was stated as the expiry of his term as Constitutional Court judge, which was manifestly not the case. Furthermore, no effective judicial protections were available to the author to contest his dismissal by the executive. In these circumstances, the Committee considers that the author's dismissal from his position as a judge of the Constitutional Court, several years before the expiry of the term for which he had been appointed, constituted an attack on the independence of the judiciary and failed to respect the author's right of access, on general terms of equality, to public service in his country. Consequently, there has been a violation of article 25 (c) of the Covenant, read in conjunction with article 14, paragraph 1, on the independence of the judiciary and the provisions of article 2.”

4. 75. In the case of Mundyo Busyo et al. v. Democratic Republic of Congo, Communication No. 933/2000, 19 September 2003, the Human Rights Committee held (footnotes omitted):

   “5.2 The Committee notes that the authors have made specific and detailed allegations relating to their dismissal, which was not in conformity with the established legal procedures and safeguards. The Committee notes in this regard that the Minister of Justice, in his statement of June 1999 …, and the Attorney-General of the Republic, in the report by the Public Prosecutor's Office of 19 September 2000 … recognize that the established procedures and safeguards for dismissal were not respected. Furthermore, the Committee considers that the circumstances referred to in Presidential Decree No. 144 could not be accepted by it in this specific case as grounds justifying the fact that the dismissal measures were in conformity with the law and, in particular, with article 4 of the Covenant. The Presidential Decree merely refers to specific circumstances without, however, specifying the nature and extent of derogations from the rights provided for in domestic legislation and in the Covenant and without demonstrating that these derogations are strictly required and how long they are to last. Moreover, the Committee notes that the Democratic Republic of the Congo failed to inform the international community that it had availed itself of the right of derogation, as stipulated in article 4, paragraph 3, of the Covenant. In accordance with its jurisprudence, the Committee recalls, moreover, that the principle of access to public service on general terms of equality implies that the State has a duty to ensure that it does not discriminate against anyone. This principle is all the more applicable to persons employed in the public service and to those who have been dismissed. With regard to article 14, paragraph 1, of the Covenant, the Committee notes the absence of any reply from the State party and also notes, on the one hand, that the authors did not benefit from the guarantees to which they were entitled in their capacity as judges and by virtue of which they should have been brought before the Supreme Council of the Judiciary in accordance with the law, and on the other hand, that the President of the Supreme Court had publicly, before the case had been heard, supported the dismissals that had taken place … thus damaging the equitable hearing of the case. Consequently, the Committee considers that those dismissals constitute an attack on the independence of the judiciary protected by article 14, paragraph 1, of the Covenant. The dismissal of the authors was ordered on grounds that cannot be accepted by the Committee as a justification of the failure to respect the established procedures and guarantees that all citizens must be able to enjoy on general terms of equality. In the absence of a reply from the State party, and inasmuch as the Supreme Court, by its ruling of 26 September 2001, has deprived the authors of all remedies by declaring their appeals inadmissible on the grounds that Presidential Decree No. 144 constituted an act of Government, the Committee considers that, in this specific case, the facts show that there has been a violation of article 25, paragraph (c), read in conjunction with article 14, paragraph 1, on the independence of the judiciary, and of article 2, paragraph 1, of the Covenant.”

5. 76. In the case of Bandaranayake v. Sri Lanka, Communication No. 1376/2005, 24 July 2008, the Human Rights Committee noted as follows (footnotes omitted):

   “7.1 The Committee observes that article 25 (c) of the Covenant confers a right to access, on general terms of equality, to public service, and recalls its jurisprudence that, to ensure access on general terms of equality, not only the criteria but also the "procedures for appointment, promotion, suspension and dismissal must be objective and reasonable". A procedure is not objective or reasonable if it does not respect the requirements of basic procedural fairness. The Committee also considers that the right of equal access to public service includes the right not to be arbitrarily dismissed from public service. The Committee notes the author's claim that the procedure leading to his dismissal was neither objective nor reasonable. Despite numerous requests, he did not receive a copy of the proceedings from his first hearing before the JSC [Judicial Service Commission] on 18 November 1998; this is confirmed in the Supreme Court decision of 6 September 2004, and is not contested by the State party. Nor did he receive the findings of the Committee of Inquiry, on the basis of which he was dismissed by the JSC. The decision of the Court of Appeal confirms that these documents were never provided to him, in accordance with the express provision of Rule 18 of the JSC rules.

   7.2 … The Committee finds that the JSC's failure to provide the author with all of the documentation necessary to ensure that he had a fair hearing, in particular its failure to inform him of the reasoning behind the Committee of Inquiry's guilty verdict, on the basis of which he was ultimately dismissed, in their combination, amounts to a dismissal procedure which did not respect the requirements of basic procedural fairness and thus was unreasonable and arbitrary. For these reasons, the Committee finds that the conduct of the dismissal procedure was conducted neither objectively nor reasonably and it failed to respect the author's right of access, on general terms of equality, to public service in his country. Consequently, there has been a violation of article 25 (c) of the Covenant.

   7.3 The Committee recalls its general comment [no. 32] on article 14, that a dismissal of a judge in violation of article 25 (c) of the Covenant, may amount to a violation of this guarantee, read in conjunction with article 14, paragraph 1 providing for the independence of the judiciary. As set out in the same general comment, the Committee recalls that "judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law." For the reasons set out in paragraph 7.2 above, the dismissal procedure did not respect the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary. For this reason the Committee concludes that the author's rights under article 25 (c) in conjunction with article 14, paragraph 1, have been violated.”

B. The Council of Europe

1. 77. The relevant extracts from the European Charter on the Statute for Judges of 8-10 July 1998Footnote ⁶ read as follows:

   “1.3. In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.

   …

   5.1. The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.

   …

   7.1. A judge permanently ceases to exercise office through resignation, medical certification of physical unfitness, reaching the age limit, the expiry of a fixed legal term, or dismissal pronounced within the framework of a procedure such as envisaged at paragraph 5.1 hereof.

   7.2. The occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than reaching the age limit or the expiry of a fixed term of office, must be verified by the authority referred to at paragraph 1.3 hereof.”

2. 78. The relevant extracts from the appendix to Recommendation CM Rec (2010)12 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide:

   “Tenure and irremovability

   49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists.

   50. The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.

   …

   52. A judge should not receive a new appointment or be moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system.”

3. 79. The relevant passages of Opinion no. 1 (2001) of the Consultative Council of European Judges (CCJE) on standards concerning the independence of the judiciary and the irremovability of judges, adopted on 23 November 2001, read as follows:

   “Tenure - irremovability and discipline

   57. It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office: see the UN basic principles [on the Independence of the Judiciary], paragraph 12; Recommendation No. R (94) 12 [of the Committee of Ministers on the independence, efficiency and role of judges] Principle I(2)(a)(ii) and (3) and Principle VI (1) and (2). The European Charter [on the Statute for Judges] affirms that this principle extends to appointment or assignment to a different office or location without consent (other than in case of court re-organisation or temporarily), but both it and Recommendation No. R (94) 12 contemplate that transfer to other duties may be ordered by way of disciplinary sanction.

   …

   59. The existence of exceptions to irremovability, particularly those deriving from disciplinary sanctions, leads immediately to consideration of the body and method by which, and basis upon which, judges may be disciplined. Recommendation No. R (94) 12, Principle VI(2) and (3), insists on the need for precise definition of offences for which a judge may be removed from office and for disciplinary procedures complying with the due process requirements of the Convention on Human Rights. Beyond that it says only that “States should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself”. The European Charter assigns this role to the independent authority which it suggests should “intervene” in all aspects of the selection and career of every judge.

   60. The CCJE considered

   1. (a) that the irremovability of judges should be an express element of the independence enshrined at the highest internal level (…);

   2. (b) that the intervention of an independent authority, with procedures guaranteeing full rights of defence, is of particular importance in matters of discipline; and.

   3. (c) that it would be useful to prepare standards defining not just the conduct which may lead to removal from office, but also all conduct which may lead to any disciplinary steps or change of status, including for example a move to a different court or area.”

4. 80. The relevant extracts from Opinion no. 3 (2002) of the CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality, adopted on 19 November 2002, read as follows:

   “b. Impartiality and extra-judicial conduct of judges

   31. More generally, it is necessary to consider the participation of judges in public debates of a political nature. In order to preserve public confidence in the judicial system, judges should not expose themselves to political attacks that are incompatible with the neutrality required by the judiciary.

   …

   33. The discussions within the CCJE have shown the need to strike a balance between the judges’ freedom of opinion and expression and the requirement of neutrality. It is therefore necessary for judges, even though their membership of a political party or their participation in public debate on the major problems of society cannot be proscribed, to refrain at least from any political activity liable to compromise their independence or jeopardise the appearance of impartiality.

   34. However, judges should be allowed to participate in certain debates concerning national judicial policy. They should be able to be consulted and play an active part in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system…”

5. 81. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant section reads as follows:

   “Rule of law and justice

   1. The judiciary is one of the three powers of any democratic state. Its mission is to guarantee the very existence of the Rule of Law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner.

   Judicial Independence

   2. Judicial independence and impartiality are essential prerequisites for the operation of justice.

   3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence.

   4. Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect of recruitment, nomination until the age of retirement, promotions, irremovability, training, judicial immunity, discipline, remuneration and financing of the judiciary.

   Guarantees of independence

   …

   6. Disciplinary proceedings shall take place before an independent body with the possibility of recourse before a court.

   …

   9. The judiciary shall be involved in all decisions which affect the practice of judicial functions (organisation of courts, procedures, other legislation).”

6. 82. The Venice Commission, in its Opinion on the draft law on introducing amendments and addenda to the Judicial Code of Armenia (term of office of court presidents), adopted at its 99^th Plenary Session (Venice, 13-14 June 2014, CDL-AD(2014)021), observed with regard to the proposed termination of office of court presidents appointed for an indefinite term, as follows:

   “V. The second question

   46. As far as the second question is concerned, the proposed termination of office of court chairpersons appointed for an indefinite time by the new (amended) law, raises certain concerns.

   47. As it was stated above among theoretical considerations, retroactivity of a new regulation is doubtful in general. If it affects rights ensured by or legitimate expectations based on the law before the amendment took effect, there should be compelling reasons to justify it. Moreover, the interest of maintaining the independence of the Judiciary and the good administration of justice requires that the judiciary be protected against arbitrary dismissal and interference in the exercise of the functions.

   48. There is no doubt that the Draft Law will negatively affect the Court presidents, who already have been appointed until retirement. According to the proposed transitional rule of Article 10.2 of the Draft Law the chairpersons of the courts of first instance and the courts of appeal appointed prior to the entry into force of the law shall hold office until 1 January 2015.

   49. It might be argued that the court presidents who have already been appointed until retirement had legitimate expectations that their past appointments will not be re-opened and terminated before their retirement age. Such expectations could originate from the provisions of the Judicial Code itself, namely Article 4 (court chairmen are judges) and Article 14.2 (“A judge shall hold office until the age of 65”).

   50. The dismissal of judges on such a short notice practically means that after the entry into force of the amendment elections for court chairpersons should be organised, and after the elections all the mandate of chairpersons appointed before the amendment (except the chairperson of the Court of Cassation) is terminated. This radical change could give the impression that the only reason of the transitional rule is to create the opportunity of a radical change of court chairpersons.

   51. The Venice Commission observes that the principle of legal certainty with the protection of legitimate expectations and the independence of the Judiciary and the effective administration of justice – if no compelling reasons can be given – require a significantly longer period for the removal of the court presidents from their offices.

   52. As far as the justification or compelling reasons for such a transitional rule are concerned, the amendments are proposed at the background of the possible estimation of the role of the court chairpersons in Armenia that could involuntarily create a situation when court chairpersons may exercise some influence on other judges of the court. The Venice Commission notes, however, that the powers of court presidents, as defined in Article 25 of the Judicial Code are essentially of an administrative character. Although the proposed reform serves the legitimate aim of avoiding any undue influence of the court presidents on other judges, it does not appear from the rationale that the need of the removal of the sitting presidents of these courts from their office is so urgent as to justify such a radical and immediate removal of court presidents from their office.

   53. The Commission therefore concludes that such a radical change of chairpersons has no justification within the amendment and it does not follow from the rules of the Constitution of the Republic of Armenia. As already said, the proposed rules might give an impression that a radical change of court persons was their only purpose. Such an appearance is necessarily contrary to the principle of the independence of the Judiciary.

   54. A smoother transitional rule, e.g. termination of office after a four year period beginning with the entry in force of the amendment in case would be less disturbing.”

7. 83. In the Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and the Rule of Law (DGI) of the Council of Europe, on the draft law on amendments to the Organic Law on General Courts of Georgia, adopted by the Venice Commission at its 100^th Plenary Session (Rome, 10-11 October 2014, CDL-AD(2014)031), the issue of the termination of the mandates of court presidents was examined as follows:

   “3. Termination of certain mandates with the enactment of the Draft amendment law (Art. 2 of the Draft amendment law)

   95. According to Article 2 (3) of the Draft amendment law, upon enactment of this draft law, the mandate of chairpersons of district courts and courts of appeal and deputy chairpersons of courts of appeal shall be terminated. Article 2(4) terminates in the same manner the mandate of chairpersons of court chambers/court panels/investigation panels and Article 2(5) provides for the reappointment of court managers.

   96. The amendments provide no justification for such a wide ranging termination of judicial mandates.

   97. The Venice Commission and the Directorate consider that the interest of maintaining the independence of the judiciary and the good administration of justice requires that the judiciary be protected against arbitrary dismissal and interference in the exercise of the functions. Also, although currently the term of office of court presidents is limited to five years from the date of their appointment, it might still be argued that the court presidents had legitimate expectations that their past appointments will not be terminated before the term of five years as set out in the Organic Law. This radical change of court presidents could give the impression that the only reason of the transitional rules is to create the opportunity of such a change, which could undermine public trust in the judiciary.

   98. For these reasons, such dismissal of court presidents with the enactment of the amendment law can be justified only if compelling reasons are given. However, it does not appear from the explanatory note provided by the authorities, the meetings held in Tbilisi, and from the draft amendment law itself that the need of the removal of the sitting presidents of these courts from their office is so urgent as to justify such a wide ranging termination of judicial mandates.

   99. For these reasons, it is recommended that the Article 2 of the Draft amendment law be removed and the sitting court presidents stay in office until the end of their term.”

C. The Inter-American Court of Human Rights

1. 84. The Inter-American Court of Human Rights, in its case-law concerning the removal of judges, has referred to the UN Basic Principles on the Independence of the Judiciary and to the General Comment No. 32 of the UN Human Rights Committee. In the case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, judgment of 23 August 2013, concerning the removal of 27 judges of the Supreme Court of Justice of Ecuador through a parliamentary resolution, the Inter-American Court found that the State had violated Article 8 § 1 (right to a fair trial), in conjunction with Article 1 § 1 (obligation to respect rights) of the American Convention, to the detriment of the victims, because they had been dismissed from office by a body without jurisdiction, which moreover had not granted them an opportunity to be heard. Furthermore, the Court found a violation of Article 8 § 1 in conjunction with Article 23 § 1 (c) (right to have access, under general conditions of equality, to the public service of his country) and Article 1 § 1 of the American Convention, given the arbitrary effects on the tenure in office of the judiciary and the consequent effects on judicial independence, to the detriment of the 27 victims. It noted as follows as regards the general standards on judicial independence (footnotes omitted):

   “1(1). General standards on judicial independence

   144. In its case law, the Court has indicated that the scope of judicial guarantees and effective judicial protection for judges must be examined in relation to the standards on judicial independence. In the case of Reverón Trujillo v. Venezuela, the Court emphasized that judges, unlike other public officials, enjoy specific guarantees due to the independence required of the judiciary, which the Court has understood as “essential for the exercise of the judiciary.” The Court has reiterated that one of the main objectives of the separation of public powers is to guarantee the independence of judges. The purpose of protection is to ensure that the judicial system in general, and its members in particular, are not subject to possible undue restrictions in the exercise their duties by bodies outside the Judiciary, or even by judges who exercise functions of review or appeal. In line with the case law of this Court and of the European Court of Human Rights, and in accordance with the United Nations Basic Principles on the Independence of the Judiciary (hereinafter “Basic Principles”), the following guarantees are derived from judicial independence: an appropriate process of appointment, guaranteed tenure and guarantees against external pressures.

   145. Regarding the scope of security of tenure relevant to this case, the Basic Principles establish that “[t]he term of office of judges […] shall be adequately secured by law” and that “[j]udges, whether appointed or elected, shall have guaranteed tenure until the mandatory retirement age or the expiry of the term of office, where such exists.” Moreover, the Human Rights Committee has stated that judges may be dismissed only on grounds of serious misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the Constitution or the law. This Court has accepted these principles and has stated that the authority responsible for the process of removing a judge must act independently and impartially in the procedure established for that purpose and must allow for the exercise of the right to defense. This is so because the free removal of judges raises the objective doubt of the observer regarding the judges’ real possibilities of ruling on specific disputes without fear of reprisals.

   …

   147. Nevertheless, judges do not have absolute guarantees of tenure in their positions. International human rights law accepts that judges may be dismissed for conduct that is clearly unacceptable. In General Comment No. 32, the Human Rights Committee has established that judges may be dismissed only for reasons of serious misconduct or incompetence. …

   148. In addition, other standards draw a distinction between the sanctions applicable, emphasizing that the guarantee of immovability implies that dismissal is the result of serious misconduct, while other sanctions may be considered in the event of negligence or incompetence.

   …

   150. Furthermore, regarding the protection afforded by Article 23(1) (c) of the American Convention in the cases of Apitz Barbera et al., and Reverón Trujillo, this Court specified that Article 23(1) (c) does not establish the right to participate in government, but to do so “under general conditions of equality.” This means that respect for and guarantee of this right are fulfilled when there are “clear procedures and objective criteria for appointment, promotion, suspension and dismissal” and that “persons are not subject to discrimination” in the exercise of this right. In this respect, the Court has pointed out that equality of opportunities in access to and tenure in office guarantee freedom from all interference or political pressure.

   151. Likewise, the Court has stated that a judge's guarantee of tenure is related to the right to remain in public office, under general conditions of equality. Indeed, in the case of Reverón Trujillo it established that “access in equal conditions would constitute an insufficient guarantee if it were not accompanied by the effective protection of the continuance in what is accessed.”

   152. For its part, in cases of arbitrary dismissal of Judges the Human Rights Committee has considered that failure to observe the basic requirements of due process violates the right to due process enshrined in Article 14 of the International Covenant on Civil and Political Rights (the counterpart of Article 8 of the American Convention), in conjunction with the right to have access under general conditions of equality to public office in the country, as provided for under Article 25(c) International Covenant on Civil and Political Rights (the counterpart of Article 23(1)(c) of the American Convention).

   153. The foregoing serves to clarify some aspects of the Court's jurisprudence. Indeed, in the case of Reverón Trujillo v. Venezuela, the Court concluded that the right to be heard by an independent tribunal, enshrined in Article 8(1) of the Convention, only implied that a citizen has a right to be judged by an independent judge. However, it is important to point out that judicial independence should not only be analyzed in relation to justiciable matters, given that the judge must have a series of guarantees that allow for judicial independence. The Court considers it pertinent to specify that the violation of the guarantee of judicial independence, as it relates to a judge's tenure and stability in his position, must be examined in light of the conventional rights of a judge who is affected by a State decision that arbitrarily affects the term of his appointment. In that sense, the institutional guarantee of judicial independence is directly related to a judge's right to remain in his post, as a consequence of the guarantee of tenure in office.

   154. Finally, the Court has emphasized that the State must guarantee the independent exercise of the judiciary, both in its institutional aspect, that is, in terms of the judicial branch as a system, and in its individual aspect, that is, in relation to a particular individual judge. The Court deems it pertinent to point out that the objective dimension is related to essential aspects for the Rule of Law, such as the principle of separation of powers, and the important role played by the judiciary in a democracy. Consequently, this objective dimension transcends the figure of the judge and collectively affects society as a whole. Likewise, there is a direct connection between the objective dimension of judicial independence and the right of judges to have access to and remain in public service, under general conditions of equality, as an expression of their guaranteed tenure.

   155. Bearing in mind the aforementioned standards, the Court considers that: i) respect for judicial guarantees implies respect for judicial independence; ii) the scope of judicial independence translates into a judge's subjective right to be dismissed from his position exclusively for the reasons permitted, either by means of a process that complies with judicial guarantees or because the term or period of his mandate has expired, and iii) when a judge's tenure is affected in an arbitrary manner, the right to judicial independence enshrined in Article 8(1) of the American Convention is violated, in conjunction with the right to access and remain in public office, on general terms of equality, established in Article 23(1)(c) of the American Convention.”

2. 85. The Inter-American Court reiterated the same principles and reached a similar conclusion in the cases of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador, judgment of 28 August 2013, §§ 188-199, and of López Lone et al. v. Honduras, judgment of 5 October 2015, §§ 190-202 and 239-240.

D. Other International Texts

1. 86. The Universal Charter of the Judge was approved by the International Association of Judges on 17 November 1999. Its Article 8 reads as follows:

   “Article 8. Security of office

   A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure.

   A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered.

   Any change to the judicial obligatory retirement age must not have retroactive effect.”

2. 87. The International Bar Association's Minimum Standards of Judicial Independence (1982), in their relevant part, read as follows:

   “20. (a) Legislation introducing changes in the terms and conditions of judicial services shall not be applied to judges holding office at the time of passing the legislation unless the changes improve the terms of service.

   (b) In case of legislation reorganising courts, judges serving in these courts shall not be affected, except for their transfer to another court of the same status.”

A. The Chamber Judgment

1. 89. In its judgment of 27 May 2014 the Chamber found that there had been a violation of Article 6 § 1 of the Convention. It noted that the criterion introduced in the Vilho Eskelinen and Others judgment ([GC], no. 63235/00, ECHR 2007-II) in respect of the applicability of Article 6 to disputes concerning civil servants was indistinguishable from the merits of the applicant's complaint under this provision (access to a court). It therefore joined the issue of its competence ratione materiae to the merits (see paragraph 71 of the Chamber judgment). In applying the test introduced in the aforementioned judgment (hereinafter referred to as the “Eskelinen test”), the Chamber observed that under Hungarian law judges of the Supreme Court, including their president, were not expressly excluded from the right of access to a court. In fact, domestic law expressly provided for the right to a court in the event of dismissal of a court executive (see paragraph 74 of the judgment). Rather than by express exclusion, the applicant's access to a court had been impeded by the fact that the impugned measure – the premature termination of his mandate as President of the Supreme Court – had been written into the new Constitution itself and had therefore not been subject to any form of judicial review, including by the Constitutional Court. In those circumstances, the nature of the impugned measure itself rendered the applicant's access to a court impossible “in practice” (see paragraph 75 of the judgment). Therefore, it could not be concluded that the national law had “expressly excluded access to court” for the applicant's claim. The first condition of the Eskelinen test had not been met and Article 6 applied under its civil head (see paragraph 76 of the judgment).

2. 90. Furthermore, even assuming that the national legislative framework had specifically denied the applicant the right of access to a court, the Chamber considered that the applicant's exclusion from that right had not been justified. The mere fact that the applicant was in a sector or department which participated in the exercise of power conferred by public law was not in itself decisive. In the applicant's case, the Government had not adduced any arguments to show that the subject matter of the dispute had been linked to the exercise of State power in such a way that the exclusion of the Article 6 guarantees had been objectively justified. In this regard, the Chamber considered it significant that, unlike the applicant, the former Vice-President of the Supreme Court had been able to challenge the premature termination of his mandate before the Constitutional Court (see paragraph 77 of the judgment).

3. 91. In the light of the above considerations, the Chamber found that it was competent ratione materiae and that there had been a violation of the applicant's right of access to a tribunal competent to examine the premature termination of his mandate as President of the Supreme Court, as guaranteed by Article 6 § 1 of the Convention. The Chamber accordingly dismissed the Government's preliminary objection (see paragraph 79 of the judgment).

B. The parties’ submissions to the Grand Chamber

C. Submissions of Third-Party Interveners

1. 98. The International Commission of Jurists observed that the special and fundamental role of the judiciary as an independent branch of State power, in accordance with the principles of the separation of powers and the rule of law, is recognised within the Convention, both explicitly and implicitly. This special role must accordingly be given significant weight in assessing any restrictions imposed by the other branches of the State on Convention rights applicable to judges. In order to preserve the special role of the judiciary the Convention should be interpreted in a manner that limits the scope for the executive or legislative branch to justify the imposition of restrictions on Article 6 rights of judges in employment disputes on grounds of legitimate interest. The power exercised by a judge, although quintessentially of a public nature, is both structurally and inherently distinct from that of public servants of the executive or legislature. The International Commission of Jurists submitted that under the second condition of the Eskelinen test it would rarely, if ever, be objectively justifiable in the public interest for the executive or legislative branches to impose measures excluding the application of Article 6 § 1 to employment disputes involving judges, particularly in those cases that affected judicial independence, and, therefore, the separation of powers and the rule of law. This would include cases relating to security of tenure and removal of judges.

2. 99. The International Commission of Jurists referred to the international standards concerning the security of tenure of judges, including those relating to procedural guarantees in cases of removal (see paragraphs 72-79, 81 and 84 above under “International and Council of Europe materials concerning the independence of the judiciary and the irremovability of judges”). It submitted that in the light of these principles, in cases concerning the employment of judges and their security of tenure, there should be a particularly strong presumption that Article 6 § 1 of the Convention applied. Effective access to justice and fair procedures in resolving disputes on the tenure, removal or conditions of service of judges are important safeguards for judicial independence. When assessing any justification advanced by the State for excluding judges’ access to court in respect of their career and security of tenure, consideration should be given to the strong public interest of upholding the role, independence and integrity of the judiciary in a democratic society under the rule of law. Although the individual judge may be the immediate beneficiary of the full protection of his or her Article 6 rights, the protection ultimately benefits all persons entitled under Article 6 § 1 to an “independent and impartial tribunal”.

D. The Court's Assessment

A. The Chamber Judgment

1. 124. In its judgment the Chamber considered that the facts of the case and the sequence of events showed that the early termination of the applicant's mandate as President of the Supreme Court was not the result of restructuring of the supreme judicial authority, as the Government had contended, but a consequence of the views and criticisms he had publicly expressed in his professional capacity. The proposals to terminate his mandate and the new eligibility criterion for the post of President of the Kúria had all been submitted to Parliament after the applicant had publicly expressed his views on a number of legislative reforms, and had been adopted within an extremely short time (see paragraph 94 of the Chamber judgment). The fact that the functions of the President of the National Council of Justice had been separated from those of the President of the new Kúria was not in itself sufficient to conclude that the functions to which the applicant had been elected had ceased to exist after the entry into force of the Fundamental Law. The early termination of his mandate thus constituted an interference with the exercise of his right to freedom of expression (see paragraph 97 of the judgment).

2. 125. The Chamber considered that the interference had not been “necessary in a democratic society” (see paragraph 98 of the judgment). The applicant's impugned opinion concerned four legislative reforms affecting the judiciary. Issues concerning the functioning of the justice system constituted questions of public interest, the debate of which enjoyed the protection of Article 10 of the Convention. It had been not only the applicant's right but also his duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary. As regards the proportionality of the interference, the applicant's term of office as President of the Supreme Court had been terminated three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election. The Chamber reiterated that the fear of sanction had a “chilling effect” on the exercise of freedom of expression and, in particular, risked discouraging judges from making critical remarks about public institutions or policies (see paragraph 101 of the judgment). In addition, the impugned measure had not been subject to effective judicial review by the domestic courts. The Chamber therefore found that the interference with the applicant's right to freedom of expression had not been necessary in a democratic society (see paragraph 103 of the judgment).

B. The Parties’ Submissions

C. Submissions of Third-Party Interveners

1. 136. The Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Eötvös Károly Institute observed before the Chamber that the present case was an outstanding example of how violations of individual fundamental rights were intertwined with processes threatening the rule of law. In their view, this case was part of a general pattern of weakening of the system of checks and balances that had taken place in the past years in Hungary. They referred to other legislative steps aimed at the early removal of individual State officials, notably the Supreme Court's Vice-President, whose constitutional complaint had been examined by the Constitutional Court. These third parties also referred to other examples of legislation targeting individuals, retroactive legislation and other legislative measures threatening the independence of the judiciary. They maintained that this case should be examined in the general context of events in Hungary and in the light of the importance of the rule of law and the independence of the judiciary. The widespread use of legislation targeting individuals could remove a wide range of significant issues from judicial scrutiny. The Court should therefore delve “behind the appearances” and examine the real purpose of such legislation and the effect that it might have on individuals’ Convention rights.

2. 137. The Helsinki Foundation for Human Rights, based in Poland, submitted before the Grand Chamber that presidents of courts were also covered by the guarantees of judicial independence and occupational stability. A conclusion to the contrary would give political authorities the power to exert pressure on the judiciary through arbitrary removals of court presidents which would be unacceptable in democratic states. In their opinion, any case of removal of a president of one of the highest domestic courts, in circumstances which could raise justified concerns as to the actual reasons for removal, should be reviewed by the Court with utmost scrutiny and would require a particularly compelling justification for its lawfulness. The third party referred to the international and comparative-law standards on judicial independence and irremovability of judges, including presidents of courts. In this respect, for instance, the Constitutional Court of the Czech Republic had in a judgment of 11 July 2006 interpreted the principle of judicial irremovability as protecting against arbitrary removal from high judicial office and held that the Constitution required that court presidents and deputy court presidents could be removed only “on the grounds foreseen in the law and on the basis of a decision of a court”. The Constitutional Court had reiterated this principle in a judgment of 6 October 2010, in which it had stated that “it is not possible to construct a duality in the legal position of the chairman of a court as an official of state administration, on one hand, and judge, on the other hand. This is still one and the same person, in whom the actions of both offices are joined”.

3. 138. In the view of the Helsinki Foundation for Human Rights, while States had the power to undertake far-reaching constitutional reforms, this power had to be limited by the requirements of the principles of the rule of law. To avoid violations of the principle of judicial independence, thorough constitutional reforms of justice systems should be accompanied by proper transitional rules protecting judges who already held their offices. Lastly, they noted that the possibility for the executive or the legislature to remove judges might not only violate the subjective rights of the judge removed, but also threaten the effectiveness of the guarantees contained in Article 6 of the Convention.

4. 139. The International Commission of Jurists took the view that the Convention should be interpreted to preclude restrictions on freedom of expression applicable to judges that would impair the right and the duty of the judiciary to speak out in protection of judicial independence. It referred in this connection to international standards that recognise that each judge is “responsible for promoting and protecting judicial independence” (see paragraph 81 above). The possible scope for limitations to the right to freedom of expression of civil servants, as established in Vogt v. Germany (26 September 1995, Series A no. 323), should, when applied to judges, be interpreted in the light of the specific role of the judiciary as an independent branch of State power, in accordance with the principles of the separation of powers and the rule of law. Provided that the dignity of judicial office was upheld and the essence and appearance of independence and impartiality of the judiciary not undermined, the State should therefore respect and protect the right and duty of judges to express their opinions, particularly in matters concerning the administration of justice and respect for and protection of judicial independence and of the rule of law.

D. The Court's assessment

A. Damage

1. 188. The applicant claimed that as a result of the premature termination of his mandate as President of the Supreme Court and the entry into force of retroactive legislation concerning the remuneration of his post (see paragraph 52 above), he had lost his salary as President, other benefits attached to that position as well as the post-term benefits (severance allowance for six months and pension supplement for life) to which he would have been entitled as former President of the Supreme Court. He provided a detailed calculation of his claim for pecuniary damage, which amounted to 742,520 euros (EUR). The applicant argued that there was a clear causal connection between the pecuniary damage claimed and the violation of Article 10 of the Convention.

2. 189. The applicant also claimed that as a consequence of the premature termination of his mandate, his professional career and reputation had been damaged and he had suffered considerable frustration. He sought an award of just satisfaction in respect of non-pecuniary damage in the amount of EUR 20,000.

3. 190. Although the Government did not dispute that the applicant's loss of salary amounted to EUR 59,319, they contested the applicant's total claims for just satisfaction as being excessive. In particular, the Government noted that the applicant's claims mostly related to his complaint under Article 1 of Protocol No. 1, which had been declared inadmissible by the Chamber.

4. 191. Without speculating on the exact amount of the salary and the benefits which the applicant would have received if the violations of the Convention had not occurred and if he had been able to remain in the post of President of the Supreme Court until the end of his term, the Court observes that the applicant has incurred pecuniary loss. It also considers that the applicant must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Making an assessment on an equitable basis and in the light of all the information in its possession, the Court considers it reasonable to award the applicant an aggregate sum of EUR 70,000, all heads of damage combined, plus any tax that may be chargeable on that amount (see, mutatis mutandis, Kayasu, cited above, § 128).

B. Costs and Expenses

1. 192. The applicant claimed EUR 153,532 for the costs and expenses incurred in the proceedings before the Chamber and EUR 27,338.70 for the costs and expenses incurred in the proceedings before the Grand Chamber (including those of the public hearing before the Grand Chamber). He submitted detailed time sheets indicating the amount of hours spent by his lawyers for the preparation of the case before the Court: 669.5 hours of legal work, charged at an hourly rate of EUR 190.50, and 406.9 hours of para-legal work, including translations, charged at an hourly rate of EUR 63.50, in respect of the proceedings before the Chamber; 135.6 hours of legal work and 13.4 hours of para-legal work in respect of the proceedings before the Grand Chamber, charged at the same hourly rates. The applicant's total claim for costs and expenses came to EUR 180,870.70.

2. 193. The Government contested these claims. They considered that the costs incurred on account of claiming damages related to the applicant's complaint under Article 1 of Protocol No. 1 could not be considered to have been necessarily incurred and reasonable. The Government also submitted that the applicant's claims for costs and expenses related to the public hearing before the Grand Chamber were excessive and exaggerated.

3. 194. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

4. 195. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 30,000 for the costs and expenses incurred before it.

C. Default Interest

1. 196. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. 1. Holds, by fifteen votes to two, that there has been a violation of Article 6 § 1 of the Convention;

2. 2. Holds, by fifteen votes to two, that there has been a violation of Article 10 of the Convention;

3. 3. Holds, unanimously, that there is no need to examine the complaint under Article 13 in conjunction with Article 10 of the Convention;

4. 4. Holds, unanimously, that there is no need to examine the complaint under Article 14 in conjunction with Articles 6 § 1 and 10 of the Convention;

5. 5. Holds, by fifteen votes to two,

   1. (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

      1. (i) EUR 70,000 (seventy thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

      2. (ii) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

   2. (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. 6. Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 June 2016.

Johan Callewaert Luis     López Guerra

Deputy to the Registrar     President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

1. (a) joint concurring opinion of Judges Pinto de Albuquerque and Dedov;

2. (b) concurring opinion of Judge Sicilianos;

3. (c) dissenting opinion of Judge Pejchal;

4. (d) dissenting opinion of Judge Wojtyczek.

L.L.G

J.C.

Unconstitutional Constitutional Norms

1. 2. The applicant complains that he did not have access to a court or any other body performing a judicial function that could be classified as a “court” for the purposes of the Vilho Eskelinen test. He argues that the constitution-making majority in the legislature deliberately chose to enact a legislative act at the highest level of the hierarchy of laws in order to preclude his access to the Constitutional CourtFootnote ⁷ . At the same time, he claims that the first condition of the Vilho Eskelinen test was not met, in that his right of access to a court was not excluded by domestic law. The logical contradiction in the applicant's reasoning is pointed out by the Government, who argue that, since the Fundamental Law is part of domestic law and it excluded access to a court, then access to a court is in fact excluded by domestic law. Furthermore, in view of the special constitutional status of the President of the Supreme Court compared to other judges and the administrative heads of lower courts – given that none of the other judges or court executives were elected by Parliament and enjoyed the same privileges as the applicant, and no court executive other than the President of the Supreme Court was excluded from supervision by the National Council of Justice – the applicant's mandate as President of the Supreme Court was, again according to the Government, of a “governmental” nature, and therefore the termination of his mandate could be justified on the ground of “political considerations”. Thus, the first condition of the Vilho Eskelinen test, if this test is at all applicable, should be considered satisfied.

2. 3. Act XX of 1949 on the Constitution of the Republic of Hungary (the Constitution) as revised in 1989-90, was in force until 31 December 2011. On 25 April 2011 the new Fundamental Law of Hungary (Fundamental Law) was adopted. It came into force on 1 January 2012. Article Q of the Fundamental Law states as follows:

   Article Q

   (1) In order to create and maintain peace and security, and to achieve the sustainable development of humanity, Hungary shall strive for cooperation with all the peoples and countries of the world.

   (2) In order to comply with its obligations under international law, Hungary shall ensure that Hungarian law be in conformity with international law.

   (3) Hungary shall accept the generally recognised rules of international law. Other sources of international law shall become part of the Hungarian legal system by promulgation in legal regulations.

3. 4. In the present case, the Court is confronted with a transitional constitutional provision, Article 11 (2) of the Transitional Provisions of the Fundamental Law, which, read alone or in conjunction with section 185 of Act CLXI of 2011 on the Organisation and Administration of the Courts, had the effect of depriving one specific person, the applicant, of his mandate as President of the Supreme Court, without the possibility of access to a court.

4. 5. In spite of this constitutional and infra-constitutional framework, the Court considers, in paragraph 107 of the judgment, that domestic law provided for a “right for an office-holder to serve a term of office until such time as it expired, or until his or her mandate came to an end”, invoking Articles 48 (3) and 50 (3) of the 1949 Constitution and sections 73 and 74/A of Act LXVI of 1997 on the Organisation and Administration of the Courts. This was the legal framework in force at the time of the applicant's election and during his mandate, until 31 December 2011. The Court adds that, in the event of unconsented premature termination of the mandate, the office-holder had “standing to apply for judicial review of that decision”, invoking, mutatis mutandis, Zander v. Sweden Footnote ⁸ . Accordingly, it concludes in paragraph 109 that at the time of his election and during his mandate, the applicant had an arguable claim to have had an entitlement under Hungarian law to protection against arbitrary removal from his office as President of the Supreme Court. In other words, the Court reads into the domestic legal framework at it stood on 1 January 2012 a right, on the basis of the Court's case-law, to apply for judicial review of a decision to terminate the mandate of the President of the Supreme Court.

5. 6. In paragraph 110, the Court reiterates that the termination ex lege of the applicant's mandate could not “remove retrospectively the arguability of his rights under the applicable rules in force at the time of his election”, refusing explicitly to reply to the question of whether a right existed under the domestic law on the basis of the new constitutional legislation. Paragraph 114 of the judgment provides the ultimate legal basis upon which that question is answered. The Court refers to the “international and Council of Europe standards on the independence of the judiciary and the procedural safeguards applicable in cases of removal of judges”, including the United Nations Basic Principles on the Independence of the Judiciary, the United Nations Human Rights Committee (UNHRC) General Comment no. 32, the “relevant case-law” of the UNHRC, the European Charter on the Statute for Judges, the Consultative Council of European Judges (CCEJ) Opinion no. 1, the Magna Carta of Judges of the CCJE and even the relevant case-law of the Inter-American Court of Human Rights. To put this clearly: the Court invokes the soft law of the Council of Europe and other international organisations and also a case from another international court, as a legal basis not only to sustain the principle of the independence of the judiciary in abstracto, but also to assert in concreto the existence of the applicant's individual civil right to irremovability and of access to a court to protect that right in the Hungarian legal framework on 1 January 2012.

6. 7. Reassured by the above-mentioned international-law backup, the Court holds, very innovatively, in paragraph 118 that the new constitutional provision impacting on the irremovability of a specific judge and excluding him from access to a court did not revoke the applicant's individual civil right not to be sacked arbitrarily, which had been protected by infra-constitutional law prior to the entry into force of the above-mentioned new constitutional law. Admittedly, the Court concludes that Article 11 (2) of the Transitional Provisions of the Fundamental Law contradicted not only ordinary law as it stood on 31 December 2011, but also the guarantee of judicial independence, including the guarantee of judges’ irremovability, enshrined in Article 48 (3) of the 1949 Constitution, to which the Court pointedly refers in paragraph 108 of the judgment. This same guarantee of judicial independence had been included in Article 26 (1) of the new 2011 Fundamental Law itself, which made the impugned transitional provision a remarkable example of an “unconstitutional constitutional provision” (verfassungswidrigen Verfassungsnorm)Footnote ⁹ .

7. 8. The issue is not new in HungaryFootnote ¹⁰ . A debate on the constitutional status of the Transitional Provisions of the Fundamental Law ensued after the Hungarian Ombudsman requested the Constitutional Court to declare the Transitional Provisions unconstitutional in their entirety, or, in the alternative, in certain provisions, since, in his view, they did not contain transitional measures. The First Amendment of 18 June 2012 to the Fundamental Law clarified that the Transitional Provisions were part of Fundamental Law in order to shield them from review by the Constitutional Court. On 29 December 2012, in its decision no. 45/2012, the Constitutional Court declared null and void some of the provisions on the grounds that they did not comply with the requirement of transitionalityFootnote ¹¹ . Having acknowledged that “the constitution-maker may only incorporate into the Fundamental Law subjects of constitutional importance that fall within the subjective regulatory scope of the Fundamental Law”, the Hungarian constitutional judges further stated that ‘The constitutional criteria of a democratic State under the rule of law are at the same time constitutional values, principles and fundamental democratic freedoms enshrined in international treaties and accepted and acknowledged by communities of democratic States under the rule of law, as well as the ius cogens, which partly overlap with the foregoing. As appropriate, the Constitutional Court may even examine the free enforcement and the constitutionalisation of the substantial requirements, guarantees and values of democratic States under the rule of law.” Hence, in spite of the lack of an explicit and unamendable “eternity clause” in the Fundamental LawFootnote ¹² , the Constitutional Court admitted an inner hierarchy within the said Law, on the basis of which any potential conflict within the Fundamental Law was to be resolved.

8. 9. Yet the Constitutional Court avoided carrying out a substantive review of the Transitional Provisions. This self-restraint by the Constitutional Court of Hungary is hardly compatible with the “constitutional continuity” between the 1949 Constitution and the 2011 Fundamental Law, which share, inter alia, the basic principles of the rule of law and the principles of the independence of the judiciary and the irremovability of judgesFootnote ¹³ . Such continuity is anchored in the historical rhetoric of the Fundamental Law itself, in the numerous references to the “historical constitution” in its Preamble, and even more clearly in its Article R.3, which states that “the Fundamental Law shall be interpreted in accordance with … the achievements of our historical constitution”.

9. 10. The best evidence of the “constitutional continuity” of the principles of the rule of law and the principles of the independence of the judiciary and the irremovability of judges is the discussion held between the majority and the minority within the Constitutional Court in its decision no. 3076/2013 on the constitutional complaint lodged by the Vice-President of the Supreme Court, whose mandate had started before the entry into force of the Fundamental LawFootnote ¹⁴ . It is worth noting that the main arguments of the seven-judge-strong minority lay in the guarantees of the separation of power, the prohibition of retroactive legislation, the principle of the rule of law and the right to a remedyFootnote ¹⁵ . In view of the above-mentioned “constitutional continuity”, there is no doubt that these are perennial principles in the Hungarian constitutional order, prior to and after the entry into force of the Fundamental Law, which were directly called into question by the above-mentioned Article 11 (2) of the Transitional Provisions.

10. 11. Furthermore, according to the established case-law of the Hungarian Constitutional Court at the relevant time, the premature removal ex lege of heads of State authorities is constitutional only in exceptional circumstances, e.g. where there is a structural modification of the institutionFootnote ¹⁶ . The Constitutional Court also emphasised the difference between State officials explicitly mentioned in the Constitution, such as the President of the Supreme Court, and those officials who preside over State organs that are subordinated to the Government. The former are entitled to the highest level of protection: the Constitutional Court has held that “their term of office, spanning over electoral cycles, is a safeguard for the proper functioning of a democratic State governed by the rule of law”Footnote ¹⁷ . It has concluded, for instance, that the introduction of a new ground for termination of the term of office, while it was still running, of the head of a State organ that has a safeguarded constitutional role violates the prohibition on retroactive legislation and the principle of the rule of lawFootnote ¹⁸ .

11. 12. The Hungarian constituent power – the Hungarian Parliament with a two-thirds majority – decided to close the on-going constitutional debate through Article 12 (3) of the Fourth Amendment, which amends Article 24 (5) of the Fundamental Law as follows: “The Constitutional Court may only review the Fundamental Law and the amendment thereto for conformity with the procedural requirements laid down in the Fundamental Law with respect to its adoption and promulgation.” Furthermore, Article 19 of the Fourth Amendment introduces point 5 of the Closing and Miscellaneous Provisions, which states that “Constitutional Court rulings given prior to the entry into force of the Fundamental Law are hereby repealed. This provision is without prejudice to the legal effect produced by those rulings.” The self-confessed legislative purpose was to prohibit the Constitutional Court from reviewing the substantive unconstitutionality of constitutional provisions and from referring to any of the previous decisions made from the point of the Constitutional Court's establishment in 1990 until the introduction of the Fundamental Law on 1 January 2012. This obviously raises, among other issues, grave problems regarding the principles of the rule of law and legal uncertaintyFootnote ¹⁹ . Called upon to assess this Amendment, the Constitutional Court held, in its decision no. 12/2013, that it would have jurisdiction to analyse the new provisions incorporated by the Fourth Amendment once its details were outlined in further Acts, in order to ensure that they “make up a system that is free from any inconsistencies with international and European Union commitments”Footnote ²⁰ . Moreover, after the entry into force of the Fourth Amendment, the Constitutional Court has occasionally referred to its rulings given prior to the entry into force of the Fundamental Law.

12. 13. In sum, the debate on the unconstitutionality of constitutional provisions is not closed in HungaryFootnote ²¹ . In any event, regardless of the Constitutional Court's remit to control the substantive unconstitutionality of constitutional provisions, Article 11 (2) of the Transitional Provisions is, in essence, an unconstitutional constitutional provision, in the light of the Hungarian “historical constitution” and the “constitutional continuity” of the principles of the independence of the judiciary and the irremovability of judges in both the new Fundamental Law and the old Constitution. On 1 January 2012 the applicant still had an individual civil right not to be removed from his position as President of the Supreme Court during his term of office, unless he was lawfully dismissed, and even in that eventuality he would be entitled to seek legal remedy before the Service Tribunal, both rights being protected by domestic law as interpreted and complemented by relevant international-law standards, which were mostly soft law.

Ad Hominem Legislation

1. 14. From the Venice Commission's perspective, which the Court endorses in paragraph 117 of the judgment, the impugned legislation was “directed against a specific person”, and was therefore “contrary to the rule of law”. To phrase this differently, this was legislation conceived to achieve a specific result that was detrimental to a concrete individual (adhominem, konkret-individuellen Massnahmegesetz), which was secured by a constitutional straightjacket in order to avoid any possibility of judicial review. Quite rightly, the Court backtracked from the previous tolerance shown vis-à-vis “special laws laying down specific conditions that apply to one or more named individuals”, by citing only partially the Vistiņš and Perepjolkins judgmentFootnote ²² , and subscribing to the Venice Commission's crystal-clear position opposing such legislation.

2. 15. For the purposes of Article 6 of the Convention, the Court clarifies that for the first condition of the Vilho Eskelinen test to be met, the exclusion must be framed in a general and abstract manner for the relevant post or category of staff or for the measures concerning them, which was not the case here. Hence, the impugned domestic law did not “expressly exclude” access to a court in the applicant's case, simply because it lacked the minimum features of a “law” in a State governed by the rule of law and within the meaning of the Convention requirements of “quality of law”. Consequently, the first condition of the Vilho Eskelinen test was not fulfilled and Article 6 § 1 of the Convention applies. One cannot but recall the words of Radbruch, in his Fifth Minute of Legal Philosophy: “Es gibt also Rechtsgrundsätze, die stärker sind als jede rechtliche Satzung, so daß ein Gesetz, das ihnen widerspricht, der Geltung bar ist.” (There are principles of law, therefore, that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity)Footnote ²³ .

3. 16. Having reached this conclusion, the Court cannot but take a firm position on the illegitimacy of the aim of Article 11 (2) of the Transitional Provisions of the Fundamental Law, in conjunction with section 185 of the Organisation and Administration of the Courts Act, which indeed it does in paragraph 156 of the judgment. For the Court, the illegitimacy of the aim of the above-mentioned provisions is flagrant. The purpose from the very beginning of the legislative procedure was to sacrifice the applicant on the altar of the Government's policy for the judiciary. In other words, the Court finds there is an intimate correlation between, on the one hand, the poor “quality of law” in terms of the applicable standards of the rule of law and, on the other, the ad hominem aims pursued by the new legislation.

The Direct, Supra-Constitutional Effect of the Convention

1. 17. The Court's direct recourse to international-law standards on judicial independence, including soft-law sources, as a source of law in order to address the applicant's situation is highly remarkable, and laudable. The security of tenure and conditions of service of judges are absolutely necessary elements for the maintenance of judicial independence, according to all international legal standards, including those of the Council of Europe. The Court's own case-law under Article 6 has asserted that the irremovability of the judiciary benefits all persons entitled under Article 6 to an “independent tribunal”Footnote ²⁴ . There is nothing in these standards to suggest that the principle of irremovability of judges should not apply to the term of office of presidents of courts, irrespective of whether they perform, in addition to their judicial duties, administrative or managerial functions.

2. 18. As the Hungarian Constitutional Court has itself stated in its crucial decision no. 45/2012, the common values of the European States governed by the rule of law are enshrined in international treaties, including – at the very frontline – the ConventionFootnote ²⁵ . In the present case, the impugned transitional provision flagrantly puts one of these common values, namely the independence of the judiciary, at risk.

3. 19. Hungary's dualist approach in terms of the relationship between its domestic law and international lawFootnote ²⁶ plays no role whatsoever in the Court's reasoning, which shows once again that, from the Strasbourg perspective, the classical distinction between monist and dualist systems is totally outdatedFootnote ²⁷ . Equally irrelevant for the Court is the classification of the principles of independence of the judiciary, irremovability of judges and access to court for the protection of such irremovability as a matter of customary international law or even ius cogens. For the Court, it suffices to affirm the existence of such principles in general international law, in Council of Europe law and, in particular, in the Convention. The Court does not go so far as to state explicitly that the above-mentioned principles are general principles of law recognised by civilised nations, but implicitly acknowledges it.

4. 20. In this connection, the Court rejects the Government's contention that “Under Article 6, it is not the applicant who has the right to be an independent judge, but [rather] Hungarian citizens and everyone under Hungary's jurisdiction who have the right to an independent judiciary.”Footnote ²⁸ According to the Government, it is clear from the wording of Article 6 that the holders of rights under Article 6 are those who are parties to judicial proceedings, and not the judges dealing with their cases. Hence, the Government were of the opinion that no individual right of judges to independence could be derived from Article 6, which deprived the applicant of victim status. The Court finds differently, by ascribing direct effect in the domestic legal order to the Article 6 guarantee of independence of the judiciary, and the concomitant right of access to a court to protect that independence. In the Court's opinion, the applicant had not only an arguable claim, but an enforceable individual civil right in domestic law, read through the lens of the Convention and other very pertinent Council of Europe and international-law instruments. Furthermore, by stating that this right prevailed over the contradicting transitional constitutional provision which had hindered the applicant's access to a court, the Court acknowledges the direct, supra-constitutional effect of the Convention guarantee of independence of the judiciary, and the concomitant right of access to a court in order to protect that independence.

5. 21. In view of the clear interference with the core of an Article 6 guarantee and right, the Court cannot turn a blind eye. It is imperative to assert, as a matter of principle, the judicial review of domestic legislation, including constitutional legislation, for the sake of effective and non-illusory protection of human rights in Europe. Regardless of the fact that the applicant was not removed from his office as a judge and was permitted to serve as Supreme Court judge, his removal from the position of President of the Supreme Court had a chilling effect on the expression of professional opinions by other judges, the independence of the judiciary and the rule of law in Hungary. In this political and social context, the Court perceives a serious risk that all Convention rights and freedoms would be in danger in Hungary, since they would be put in the hands of any given political majority which could manipulate the highest members of the judiciary like pawns in a chess gameFootnote ²⁹ . The Government's argument that the applicant's removal from office should indeed be subject to political considerations, given that his position was more administrative or “governmental” than judicial and that his views were more of a political than of a professional nature, is therefore flatly rejected by the Court. As is the argument that the organisational and functional changes to the system of court administration and to the competences of the Kúria, and the new eligibility criteria, were justified by the need to enhance the independence of the judiciary. The same should have been the case with regard to the Government's point that “judicial service at an international court cannot be equated with national judicial service from the point of view of the independence, or the perceived independence, of the judiciary.”Footnote ³⁰ Quite apart from an outrageous lack of respect for the judges of the Court, this “Government point” casts doubt on the very independence of this Court.

6. 22. Having fully asserted its constitutional competence, the Court goes on to assess thoroughly the substance of the constitutional and infra-constitutional legislation impugned by the applicantFootnote ³¹ and the procedure that led to itFootnote ³² , and also its compatibility with the Convention and the above-cited international standards. While the Court's careful assessment of both these aspects merits our full endorsement, one detail should be underlined, namely that the impugned termination was enacted with extreme rapidity as a last-minute amendment to the Bill submitted by individual MPs in the form of an “amendment prior to the closing vote”, thus circumventing the usual consultative obligations and proper parliamentary debate. From this perspective, the legislative process “might be understood as an attempt to get rid of a specific person who would be a candidate for President”, as the Venice Commission concludedFootnote ³³ .

The Court as the European Constitutional Court

1. 23. The Council of Europe is an autonomous legal order, based on agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedomsFootnote ³⁴ . With more than 217 treaties, the legal order of this international organization has at its apex an international treaty, the European Convention on Human Rights, which has direct, supra-constitutional effect on the domestic legal orders of the Member States of the Council of EuropeFootnote ³⁵ . More than merely a multilateral agreement on the reciprocal obligations of its Contracting Parties, the Convention creates obligations for Contracting Parties towards all individuals and private entities within their jurisdictions. This means that Convention law has not only a declaratory, but also an additional constitutive effect in the domestic legal order. With its transformational role emphatically proclaimed in the Preamble as an instrument for building a closer union of European States and developing human rights on a pan-European wide basis, the Convention is subordinated neither to domestic constitutional rules, nor to allegedly higher rules of international law, since it is the supreme law of the European continentFootnote ³⁶ . In Europe, the domestic law of the member States is subordinated to the primacy of the Convention as a constitutional instrument of European public orderFootnote ³⁷ .

   In the present case, this constitutional instrument has been fully used by the Court not only to remedy the harm done to the applicant, but to reproach the political-constitutional choice made in Article 11 (2) of the Transitional Provisions of the Fundamental Law, in conjunction with section 185 of the Organisation and Administration of the Courts ActFootnote ³⁸ . The memorable paragraph 118 of the judgment, read in the light of paragraph 110, determines that Article 11 (2) of the Transitional Provisions of the Fundamental Law and section 185 of Act CLXI of 2011 on the Organisation and Administration of the Courts Act lacked legal effect in the domestic order. Since these provisions are null and void ab initio and devoid of any legal effects within the domestic legal order, the respondent State is obliged to act as if they have never been enacted. With this finding, the Court is not entering unchartered waters, but merely following the standard set long ago by Barrios Altos for domestic laws which violate the “block of conventionality”Footnote ³⁹ .

2. 24. Although not stated explicitly, the consequences of the present judgment are unequivocal under Article 46 of the Convention: Hungary must implement the present judgment in good faith and proceed to a declaration of nullity in the domestic order of any domestic legislation, regulation or administrative act breaching the Convention as interpreted by the Court in this judgment; and, in consequence, it must reinstate the applicant as President of the Supreme Court for the entire duration of his interrupted mandateFootnote ⁴⁰ .

Judicial Independence in the Court's Case-Law under Article 6 § 1 of the Convention: the Right of Persons Involved in Court Proceedings to an Independent Judge

1. 2. It is well known that the Court has repeatedly insisted, for more than thirty years, that a court must be independent both of the parties and of the executive. In the now classic wording of the Campbell and Fell judgment: “[In determining whether a body can be considered to be ‘independent’ - notably of the executive and of the parties to the case (see, inter alia, the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, § 55) -, the Court has had regard to the manner of appointment of its members and the duration of their term of office (ibid., § 57), the existence of guarantees against outside pressures (see the Piersack judgment of 1 October 1982, Series A no. 53, § 27) and the question whether the body presents an appearance of independence (see the Delcourt judgment of 17 January 1970, Series A no. 11, § 31)” (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80). The Court has added in this regard that what is at stake is “the confidence which such tribunals must inspire in the public” (see Clarke v. the United Kingdom (dec.), no. 23695/02, ECHR 2005-X).

2. 3. Similarly, the Court has also underlined the judiciary's necessary independence from the legislative. Thus, in the Stran Greek Refineries and Stratis Andreadis v. Greece judgment, it noted in general terms that “[t]he principle of the rule of law and the notion of fair trial enshrined in Article 6 … preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute” (see Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B). The formula in question, frequently repeated since (see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 112, Reports of Judgments and Decisions 1997-VII; Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 126, ECHR 2006-V; and Tarbuk v. Croatia, no. 31360/10, § 49, 11 December 2012), conveys the idea of the separation of powers.

3. 4. The principle of the independence of the judiciary is not simply a matter of its relations with the executive and the legislative branches. It also concerns judicial independence within the system of the administration of justice itself. Judges must be free, in their individual capacity, not only from any external influence, but also from any “inside” influence. This “internal judicial independence” implies that judges do not receive instructions and are not subjected to pressure from their colleagues or from persons exercising administrative responsibilities in a court, such as the president of a court or the president of a court's section (see Parlov-Tkalčić v. Croatia, no. 24810/06, § 86, 22 December 2009, and Agrokompleks v. Ukraine, no. 23465/03, § 137, 6 October 2011; see also Moiseyev v. Russia, no. 62936/00, § 182, 9 October 2008). The absence of sufficient guarantees ensuring judges’ independence within the judicial branch, and especially vis-à-vis their superiors within the judicial hierarchy, could lead the Court to conclude that an applicant's doubts as to the independence and impartiality of a court may be said to have been objectively justified (see Parlov-Tkalčić, cited above, § 86; Agrokompleks, cited above, § 137; Moiseyev, cited above, § 184; and Daktaras v. Lithuania, no. 42095/98, §§ 36 and 38, ECHR 2000-X).

4. 5. Thus, the Court's case-law has addressed several aspects of the principle of judicial independence: independence vis-à-vis the parties, independence from the executive and legislative powers, and internal judicial independence. However, all these aspects of judicial independence have been assessed from the perspective of the right of “[e]veryone … to a fair and public hearing … by an independent and impartial tribunal previously established by law…” In other words, the letter of Article 6 § 1 of the Convention has led the Court to analyse the issue of judicial independence from the perspective of the rights of persons involved in court proceedings and not from that of judges’ subjective right to have their own independence guaranteed and respected by the State.

5. 6. The present case lent itself, a priori, to an examination of this latter aspect. However, under Article 6 the applicant relied solely on the more traditional aspect of the right to a fair hearing, namely the right of access to a court. In those circumstances, the Court, quite rightly, restricted its assessment to the right relied upon. Nonetheless, the principle of judicial independence is omnipresent in the judgment. In the “Facts” part, the Court quotes numerous international, universal and regional texts, including case-law examples concerning judicial independence and the related principle of the irremovability of judges (see paragraphs 72-87 of the judgment). In the “Law” part, these principles are examined in extenso from the perspective of the applicant's right to freedom of expression.

The Non-Binding International Texts: Judicial Independence Includes the Judge's Subjective Right to Independence

1. 7. Of the non-binding texts quoted in the judgment, several emphasise the judge's subjective right to his or her independence. Thus, after having asserted that “[j]udicial independence and impartiality are essential prerequisites for the operation of justice”, the Magna Carta of Judges (Fundamental Principles), adopted by the CCJE in November 2010, adds that “[j]udicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level…” (text quoted in paragraph 81 of the judgment, italics added). Similarly, the Venice Commission has considered that “the interest of maintaining the independence of the judiciary and the good administration of justice requires that the judiciary be protected against arbitrary dismissal and interference in the exercise of the functions” (Opinion quoted in paragraph 82 of the judgment; see also paragraph 97 of the Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and the Rule of Law (DGI) of the Council of Europe, quoted in paragraph 83 of the judgment).

The International Covenant on Civil and Political Rights and the American Convention on Human Rights: Essentially the Same Wording as the European Convention

1. 8. Beyond these non-binding texts and opinions, the interpretation of conventions and agreements containing similar or even identical wording to that of Article 6 of the Convention with regard to the right to an “independent tribunal” is of even greater importance. It should be noted that Article 14 § 1 of the International Covenant on Civil and Political Rights (hereafter the “ICCPR”) states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…” Article 8 § 1 of the American Convention on Human Rights also contains a similar provision: “Every person has the right to a hearing, with due guarantees … by a competent, independent, and impartial tribunal, previously established by law…” In other words, the wording of these two binding instruments, like that of the Convention, approaches the issue of judicial independence in terms of the rights of persons involved in court proceedings, and not from the perspective of the judge's subjective right to have his or her own independence guaranteed and respected by the State (including within the judiciary).

The Case-Law of the Human Rights Committee: Highlighting the Judge's Right to Independence

1. 9. In spite of the above-cited wording of Article 14 § 1 of the ICCPR, the Human Rights Committee has nonetheless on several occasions approached the issue from the perspective of the rights of judges themselves, and of the State's obligations towards them in safeguarding their independence. Here, we would refer primarily to General Comment no. 32 on Article 14 of the Covenant (Right to equality before courts and tribunals and to a fair trial). This General Comment emphasises the various aspects of the guarantee of independence from the perspective of the judges themselves (appointment, qualifications, security of tenure, remuneration, promotion, transfers, suspensions, dismissal, disciplinary measures, etc.), and the measures that the States should take to guarantee judges’ effective independence and their protection from “any form of political influence in their decision-making”, and from conflicts of interest and intimidation (see the passages quoted in paragraph 73 of the judgment).

2. 10. This General Comment codifies, as it were, the Committee's practice, including with regard to “individual communications” concerning the right to a fair hearing. Thus, we note that the Committee has received various communications from judges themselves, alleging, in particular, that they were dismissed (or that their mandates were ended prematurely) in breach of the established procedures and safeguards. In these cases it has found that “those dismissals constitute[d] an attack on the independence of the judiciary protected by article 14 § 1 of the Covenant” (see Mundyo Busyo et al. v. Democratic Republic of Congo, Communication No. 933/2000, 19 September 2003, passage quoted in paragraph 75 of the present judgment). Admittedly, in this case, as in others, it dealt with this type of communication under a combination of Article 14 § 1 of the Covenant and Article 25 (c), which recognises the right of every citizen to have access, “on general terms of equality, to public service in his country”. It is also true that the right of access to public office is not, as such, expressly protected by the ConventionFootnote ⁴² . However, as is clear from the above-cited wording in the Mundyo Busyo case, the Committee in that case examined the impugned dismissal not only under Article 14 § 1 of the Covenant in combination with Article 25 (c), but also from the perspective of judicial independence as protected on an autonomous basis by Article 14. This approach was confirmed by the Bandaranayake v. Sri Lanka case (Communication No. 1376/2005, 24 July 2008), where the Committee found, inter alia, that “the dismissal procedure [had] not respect[ed] the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary” (passage cited in paragraph 76 of the present judgment).

The Case-Law of the Inter-American Court of Human Rights: From the Right to an Independent Judge to the Judge's Right to Independence

1. 11. Similar observations apply, mutatis mutandis, with regard to the recent case-law of the Inter-American Court of Human Rights on the same subject, quoted in paragraphs 84 and 85 of the present judgment. In this connection, it is significant that the Inter-American Court in its Supreme Court of Justice (Quintana Coello et al.) v. Ecuador judgment of 23 August 2013, on the removal by parliamentary resolution of 27 judges of the Supreme Court of Justice of Ecuador, built on its earlier case-law on the right to an independent judge, guaranteed by Article 8 § 1 of the American Convention in terms, as we have seen, that are practically identical to those used in Article 6 § 1 of the Convention. The following extract from the relevant judgment is particularly enlightening in this regard:

   “The foregoing serves to clarify some aspects of the Court's jurisprudence. Indeed, in the case of Reverón Trujillo v. Venezuela, the Court concluded that the right to be heard by an independent tribunal, enshrined in Article 8(1) of the Convention, only implied that a citizen has a right to be judged by an independent judge. However, it is important to point out that judicial independence should not only be analyzed in relation to justiciable matters, given that the judge must have a series of guarantees that allow for judicial independence. The Court considers it pertinent to specify that the violation of the guarantee of judicial independence, as it relates to a judge's tenure and stability in his position, must be examined in light of the conventional rights of a judge who is affected by a State decision that arbitrarily affects the term of his appointment. In that sense, the institutional guarantee of judicial independence is directly related to a judge's right to remain in his post, as a consequence of the guarantee of tenure in office (§ 153 of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador judgment, quoted in paragraph 84 of the present judgment).

2. 12. This case-law was confirmed in the Constitutional Tribunal (Camba Campos et al.) v. Ecuador (28 August 2013) and López Lone et al. v. Honduras (5 October 2015) judgments. Thus, in the view of the Inter-American Court, it now appears established that Article 8 § 1 of the American Convention recognises not only the right of persons appearing before a court to an independent judge, but also the right of judges themselves to have their independence safeguarded and respected by the State.

Towards a Subjective Right to Judicial Independence, Protected by the Convention?

1. 13. The above considerations give rise to the question of whether Article 6 § 1 of the Convention can be interpreted in such a way as to recognise, in parallel to the right of persons involved in court proceedings to have their cases heard by an impartial court, a subjective right for judges to have their individual independence safeguarded and respected by the State. A positive response to this question would indicate that the judges themselves could rely on Article 6, without necessarily having to prove that an interference with their independence had simultaneously amounted to an unjustified interference in the exercise of their right to freedom of expression or another right enshrined in the Convention. In other words, such an interpretation would strengthen the protection granted to judicial independence under the Convention.

2. 14. It is well known that in the Golder judgment the Court interpreted the Convention teleologically, for the purpose of identifying the right of access to a court in Article 6 § 1. After noting that the provision in question “does not state a right of access to the courts or tribunals in express terms” (see Golder v. the United Kingdom, 21 February 1975, § 28, Series A no. 18), it referred to all of the principles of interpretation contained in Article 31 of the Vienna Convention on the Law of Treaties, including the importance of the preamble, which is “very useful for the determination of the ‘object’ and ‘purpose’ of the instrument to be construed” (ibid., § 34). In a similar vein, it drew attention to the “profound belief” of the signatory Governments in the rule of law, referred to in the preamble, and the key role of this concept in the Convention system. It concluded in this regard that “in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts” (ibid.). It also reiterated the terms of Article 31 § 1 (c) of the Vienna Convention, which indicates that account is to be taken also of “any relevant rules of international law applicable in the relations between the parties”, including the “general principles of law recognized by civilized nations” within the meaning of Article 38 § 1 (c) of the Statute of the International Court of Justice. It noted that one of those principles forbids the denial of justice. Taking all of these aspects into consideration, it reached the still renowned conclusion that “it would be inconceivable … that Article 6 § 1 should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court … the right of access constitutes an element which is inherent in the right stated by Article 6 § 1” (ibid., §§ 35, 36).

3. 15. The Court has since reiterated on numerous occasions the importance of the principle of the rule of law in the context of Article 6 of the Convention (see, purely by way of indication, Siegle v. Romania, no. 23456/04, § 32, 16 April 2013; Varnienė v. Lithuania, no. 42916/04, § 37, 12 November 2013; Solomun v. Croatia, no. 679/11, § 46, 2 April 2015; Ustimenko v. Ukraine, no. 32053/13, § 46, 29 October 2015; and Amirkhanyan v. Armenia, no. 22343/08, § 33, 3 December 2015), and also of the need to take account of the relevant rules of international law in interpreting and applying the Convention (see, among many other authorities, Hassan v. the United Kingdom [GC], no. 29750/09, §§ 100, 102, ECHR 2014). In my opinion, however, the rule of law is hardly imaginable without an obligation on the State to offer safeguards for the protection of judicial independence and, hence, without the corresponding right of judges themselves to independence. Moreover, as is clear from the entirety of the international-law materials cited in the present judgment, judicial independence is today an integral part of the general principles of international law which must be taken into account in interpreting the Convention. Equally, an interpretation of Article 6 § 1 which finds that it protects the judge's subjective right to independence would be perfectly compatible with that provision's object and purpose. In this connection, I subscribe to the idea, set out in the Magna Carta of Judges, to the effect that “[j]udicial independence and impartiality are essential prerequisites for the operation of justice” (text quoted in paragraph 7 above). Indeed, how can one hope that persons involved in court proceedings will enjoy the right to an independent judge if judges themselves are not afforded safeguards capable of ensuring that independence? In my opinion, a subjective right of this sort for judges is inherent in the safeguards of the first paragraph of Article 6, and in the concept of a fair hearing. I believe that this approach is borne out by the above-mentioned case-law of the Human Rights Committee and the Inter-American Court of Human Rights.