Baka v. Hungary

The Baka v Hungary case concerns the premature termination, via ad hominem legislative measures, of the applicant’s (President of the former Hungarian Supreme Court) term of office. The termination was found to have violated his right of access to a court as guaranteed by Article 6 § 1 because of the absence of judicial review. The Court found that these measures had been prompted by the views and criticisms expressed by the applicant on issues of public interest (planned major reform of the judicial system) and had violated Article 10 as they had not pursued any legitimate aim linked to the judicial reform at issue, nor had the measures been necessary in a democratic society.

The Hungarian Helsinki Committee discussed the lack of a remedy against removal and the judicial reform of 2023, setting out general measures required:

• Providing guarantees for procedural fairness in cases involving the removal of judges

• Ensuring that measures leading to the removal of judges will be open to effective review

The NGO also addressed the government’s excuse for non-execution:

“those measures which were criticised and put under scrutiny in the case of Baka, all resulted from a one-time constitutional reform” - this excuse is not valid

In 2023, there is still no remedy against removal:

• The chief justice can be removed from office without legal remedy by 2/3 majority of the Parliament

• The decision on impeachment is political and not subject to judicial remedy

The Hungarian Helsinki Committee also outline repeating patterns of political pressure on the judiciary:

1. Removal of judge Baka through ad hominem legislation

2. Removal of senior judges by forced early retirement via legislative acts

3. Election of new Kúria President through ad hominem legislation

4. Removal of a lower-court judge from the bench (case of judge Szabó) after she turned to the CJEU

5. Possibility of impeaching the Kúria President without judicial remedy

6. Overruling judicial decisions

The NGO provided comments on the Judicial Reform of 2023:

Hungary passed a judicial reform in May 2023

• To fulfill undertakings towards the European Union

• A possibility not taken to implement the Baka judgment

• No new rules on the impeachment procedure, still no remedy

• New rules on the eligibility and election of the Kúria President and Vice-president

• More guarantees against undue interference by court administration

Hacking the requirement of excluding re-election of the Kúria President

• The Kúria President cannot be re-elected, but can remain in office for an indefinite period

• Undermines the whole reform regarding the status of the Kúria President

The Hungarian Helsinki Committee also discussed the freedom of expression violation and the ongoing chilling effect on judges:

A New Kúria President was elected in 2020 through ad hominem legislative acts of constitutional rank, without former experience as judge and against the objection of the National Judicial Council. The UN  Special Rapporteur criticised this as “an attack against the independence of the judiciary in violation of the principle of separation of powers”, while the EC Rule of Law Report noted it was “not in line with European standards”.

The Chilling Effect

The chilling effect preventing judges from speaking out publicly against measures undermining the independence of the judiciary is caused by:

• National measures (smear campaigns, political attacks, legal measures, abusive lawsuits).

• Adopted and/or applied with the aim to dissuade or deter natural persons from fulfilling their professional duties.

• Aiming at creating a self-censorship.

Since 2017, the Committee has called on the Hungarian authorities to fully guarantee and safeguard judges’ freedom of expression, to take measures to lift and countervail the chilling effect, and to evaluate the domestic legislation regarding guarantees against undue interference. The Hungarian Helsinki Committee emphasized that none of these expected measures were taken, and that the situation has not been addressed but rather aggravated.

Furthermore, smear campaigns against judges have continued, with the same pattern, in several waves:

• Target: judges as members of the National Judicial Council (NJC)

• Method: discrediting members of the NJC as judges

• Aim: discouraging judges from speaking out

  Smear attacks continue even during the NJC elections.

The new Kúria President has had an active role in the silencing of judges, having:

• Joined smear campaigns against members of the NJC claiming that „decisions, communications and public appearances of the NJC are political activities”

• Labelled the NJC as a „group of friends”

• Upheld the legal force of the precedent of the Kúria according to which a preliminary question to the CJEU can be unlawful even after it was found incompatible with EU law

• Questioned the right of judges to criticize legislation

• Challenged the new Code of Ethics before the Constitutional Court

As regards the New Code of Ethics for Judges adopted by the NJC, it significantly extends the freedom of expression of judges, especially with respect to criticising legislation. However, the Kúria President challenged the new Code before the Constitutional Court requesting its annulment and questioning the legal authority of the NJC to adopt the Code. The proceedings are still pending.

The Hungarian Helsinki Committee called on the Committee of Ministers to:

1. Continue examining the case under enhanced procedure

2. Take into account the changed context of the execution

3. Require legislative changes

   • to exclude political pressure through the Kúria President

   • to remove the possibility of prolongation of the mandate of Kúria President by political minority

   • to guarantee freedom of expression of judges in accordance with ECtHR judgments

4. Require Hungarian authorities to refrain from

   • public critique of judicial decisions

   • legislative steps overruling judicial decisions

   • smear campaigns against judges

5. Evaluate the domestic legislation regarding guarantees against undue interference

See slides for full briefing.

Relevant Documents

NGO Communications:

• 1483rd meeting (December 2023) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee (HHC)) (05/10/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)1245]

• 1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from NGOs (Amnesty International and Hungarian Helsinki Committee) (26/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)157]

• 1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Association of Hungarian Judges (MABIE)) (27/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)156]

• 1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Res Iudicata - Association of Judges for Social Awareness) (24/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)145]

• 1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (European Association of Judges (EAJ)) (18/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2023)116]

• 1428th meeting (March 2022) (DH) - Rule 9.2 - Communication from an NGO (Hungarian Helsinki Committee) (24/02/2022) in the case of BAKA v. Hungary (Application No. 20261/12) [anglais uniquement] [DH-DD(2022)286]

CM Decisions:

• 1459th meeting (DH), March 2023 - H46-11 Baka v. Hungary (Application No. 20261/12) [CM/Del/Dec(2023)1459/H46-11]

• 1428th meeting (DH), March 2022 - H46-14 Baka v. Hungary (Application No. 20261/12) [CM/Del/Dec(2022)1428/H46-14]