Europe of Human Rights

András Baka was a judge at the European Court of Human Rights. Subsequently, the Parliament of Hungary elected him President of the Supreme Court for a six-year term. He was also the President of the National Council of Justice. The new Hungarian Constitution introduced by the ruling coalition established that the new highest judicial body would be the Curia. Article 11 of the new Basic Law provided that the Curia would be the legal successor of the Supreme Court, the National Council of Justice and its President for the administration of justice, while the President of a new National Judicial Office would become responsible for the administration of courts. Pursuant to Transitional Provisions, the President of the Supreme Court as well as the President and the members of the National Council of Justice would have their term of office terminated upon the entry into force of the Fundamental Law. The date of the entry into force of the Fundamental Law was set at 1 January 2012. On that day Mr Baka’s term of office was terminated, three and a half years before its normal date of expiry

Mr Baka complained to the European Court of Human Rights, among other under Article 6 § 1 and Article 10 of the Convention. The Court will have to decide whether the legislative changes introduced in Hungary violated the rights of the applicant. The Helsinki Foundation for Human Rights submitted written comments in the case.

In the comments, the HFHR points out that the principle of judicial independence is considered a crucial element of every state ruled by law. It is explicitly declared in most contemporary democratic constitutions. Also the international documents issued by international organizations, organizations representing legal professions, or recommendations approved by groups of independent experts, emphasize that the independence of the judiciary is a key element of a democratic legal system, without which it is impossible to effectively protect the rights of the individual.

The basic guarantees of judicial independence include, among others irremovability and non-transferability of judges, salary protection, the existence of judicial self-government equipped with adequately extensive powers, as well as relevant regulations relating to the method of appointment of judges, preventing the abuse of power by the executive or the legislature to exert undue pressure on the judiciary. In the case of Mr Baka, the removal from the office was neither a result of a disciplinary sanction nor retirement but of the constitutional amendments enacted by the Parliament. Such situation raises questions as to the compliance not only with the principle of judges’ irremovability but also of separation of powers.

In this context, the HFHR recalls in the observations the Polish case of unappointed judges that concerned interference of executive authority in the courts’ organization. The discussion over this topic started in 2005, when a group of assessors began to apply for appointment to the position of a judge. According to the existing procedure candidates were presented to the Minister of Justice and the National Council of the Judiciary. Both organs evaluated all candidates positively. Subsequently, the National Council of Judiciary adopted appropriate resolutions and submitted motions to the President with request to appoint all candidates for the positions of judges. However, motions were not processed by the President until 2007 when the Chancellery of the President informed the National Council of Judiciary that the President refused to appoint nine of the candidates. Formal decisions of the President in this matter were issued in January 2008. The President did not state any reasons for the refusal. The unappointed judges complained to Polish court that the President’s unjustified decision made the procedure arbitrary, and thus violated their rights. The case is still awaiting final resolution

It should be clear that the problem in the Baka case is of a high significance not only to the Hungary but also to constitutional relations between legislative or executive authorities and the judiciary in general. All relevant international documents underline the importance of the principle of division of powers for a proper functioning of a whole system of justice. Therefore, executive and legislature should respect the independence of the judiciary and avoid arbitrariness in all activities within the sphere of justice. This requirement is even more evident with respect to the removing of judges, since the principle of irremovability is widely considered one of the most important guarantees of judicial independence. Depriving a judge of their office on the basis of a legislative act, which cannot be reviewed by an independent court, without a doubt poses as a threat to the judicial independence.

The text of application no. 20261/12 András BAKA against Hungary lodged on 14 March 2012 can be found here.

Zuzanna Warso, Europe of Human Rights


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