Case: Case 20261/12 

Descriptors: Judges irremovability principle / Judges freedom of expression

In the present case, Magistrate Baka, president of the Hungarian Supreme Court, whose six-year constitutional mandate ended in 2015, was deposed early from the same, in 2012, as a result of the approval of the constitutional reform of 2011, against which he had spoken publicly. In this way, he was removed from his post three years in advance of the date scheduled in accordance with the Law in force in the year of his appointment. And, furthermore, the conditions contained in the new Law deprived him of the ability to run as a candidate for the presidency of the Kuria (Supreme Court).

For the European Court of Human Rights, the dismissal of the magistrate for reasons not provided in the law in force at the time of his appointment clearly contravenes the 1949 Hungarian Constitution, with regard to judicial independence and the judges' immobility principle. Therefore, he was legitimately empowered to appeal the decision. However, although the magistrate, in accordance with the legislation in force at the time of his appointment, had a legal means to appeal his dismissal, he could not use it because his dismissal was approved by a later law (paragraph 115-119).

The absence of judicial control of a legislative act, which the Court classifies as “doubtfully compatible with the rule of law” (paragraph 121), constitutes a violation of Article 6.1 of the Convention, since the right to due process was frustrated.

Likewise, the Court resolves a question related to the freedom of expression of the judges, protected by Article 10.1 of the Convention, since Judge Baka alleges that his dismissal was a consequence of the criticisms leveled against the government's judicial reform project. Although this freedom of expression does not turn out to be absolute, in the present case, the Court considered that the opinions expressed by the magistrate not only affected him directly, but were of public interest, and of enormous importance for the preservation of a democratic society.

For this reason, by fifteen favorable votes against two negative, the judgment found the existence of a violation of Article 10.1 of the Convention, and it was warned that the absence of due protection to the freedom of expression of the magistrates could lead to undesired effects for the protection of judicial independence since other Judicial Power members could inhibit their criticism in order to avoid being removed from their positions.

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