The decision confirms the repeatedly expressed worries of Eötvös Károly Institute, the Hungarian Helsinki Committee and the Hungarian Civil Liberties Union concerning the infringement of judicial independence.
András Baka was elected President of the Supreme Court (SC) in 2009, to a six-year term. His assignment, however, finished on 1 January 2012 - three and a half years before his mandate ran out. This action was taken on the basis of the Temporary Provisions of the Fundamental Law - according to the official justification, because the SC had been "replaced" by the Curia. However, the ruling of the European Court of Human Rights (ECtHR) states: "The dismissal of András Baka before his time is an infringement of the right to due process, as he had no available legal remedies against the decision eliminating his assignment." Furthermore, ECtHR explained that this was not his only right infringed by the move: "András Baka's mandate was cut short really because he had criticized certain legislative steps, and not due to the reconfiguration of the Supreme Court. Therefore, also his right to free expression was violated."
Eötvös Károly Institute (EKI), the Hungarian Helsinki Committee and the Hungarian Civil Liberties Union (HCLU) had already noted back in December of 2011 that there are no convincing arguments in support of András Baka's dismissal, which violates judicial independence. We have informed, among others, Viviane Reding, Vice-President of the European Commission, and the Venice Commission regarding the fact that no substantial changes in terms of tasks and responsibilities had been effected by the transformation of the SC into the Curia, which would have made it necessary to remove András Baka from his office. We have also remarked that his dismissal was probably because he had repeatedly criticized certain legislative steps, and rules excluding his re-election were implemented. Our worries were later shared by the report of the Venice Commission, the report of the Monitoring Committee of the Council of Europe and the Tavares report as well.
The three Hungarian civil organizations were also involved as third party interveners in the proceedings before the ECtHR, arguing that the elimination of András Baka's mandate is a typical example of legislative acts, taking place since 2010, which violate the rule of law and fundamental rights and weaken independent institutions. Our submission also presents the individual steps that violated the rule of law, such as:
- cutting short the mandates of the Commissioner of Fundamental Rights, the Vice President of the SC, members of the National Election Commission and Vice Presidents of the Hungarian Competition Authority
- legislation with retrospective effect, tailored to individuals (e.g. Lex Borkai, Lex Szapáry, Lex Szász and the 98% tax on severance pay)
- certain legislative steps curtailing judicial independence (e.g. relocation license accorded to the President of the National Office for the Judiciary)
It was just seven weeks ago that the Court of Justice of the European Union affirmed that, in eliminating the institution of the Commissioner of Fundamental Rights and prematurely terminating of András Jóri's mandate, Hungary infringed EU law. Today's ruling is yet another piece of evidence proving that the content and means of the "public law revolution," namely certain sections of Hungary's Fundamental Law, do not comply with European standards.