CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 mai 2014

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HUNGARY   (Application no. 20261/12)                   JUDGMENT ( Merits )       STRASBOURG   27 May 2014     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 23/06/2016   This judgment may be subject to editorial revision. In the case of Baka v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Guido Raimondi, President,   Işıl Karakaş,   Nebojša Vučinić, judges,   Helena Jäderblom, ad hoc judge,   Egidijus Kūris,   Robert Spano,   Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar, Having deliberated in private on 15 April 2014, delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20261/12) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr András Baka (“the applicant”), on 14 March 2012. 2.     The applicant was represented by Mr A. Cech, a lawyer practising in Budapest. The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Public Administration and Justice. 3.     The applicant alleged, in particular, that he had been denied access to a tribunal to contest the premature termination of his mandate as President of the Supreme Court. He also complained that he had been removed from office as a result of the views and positions that he had expressed publicly in his capacity as President of the Supreme Court. 4.     On 29 November 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     On 5 March 2013 the President of the Section granted the Hungarian Helsinki Committee, the Hungarian Civil Liberties Union, the Eötvös   Károly Institute, and the Helsinki Foundation for Human Rights of Poland, leave, under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, to intervene as third parties in the proceedings. 6.     Mr A. Sajó, the judge elected in respect of Hungary, was unable to sit in the case (Rule 28). The Government accordingly appointed Ms   Helena   Jäderblom, the judge elected in respect of Sweden, to sit in his place (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court as in force at the time). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1952 and lives in Budapest. A.     Election of the applicant as President of the Supreme Court and his functions 8.     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. 9.     In that capacity, the applicant not only performed managerial tasks but also had a judicial role, presiding over deliberations on uniformity issues and guiding decisions. He was also President of the National Council of Justice. This second function was 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. 10.     On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union unanimously elected the applicant President of the Network for a two-year term (from 2011 to 2013). B.     Background to the case 11.     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 reform. Thereafter, the applicant spoke up several times in order to express his views on the integrity and independence of the judiciary. In his professional capacity as President of the Supreme Court and the National Council of Justice, the applicant expressed his views on four issues: 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. 12.     Firstly, the Nullification Bill (subsequently Act XVI of 2011) sought to redress convictions relating to the crowd dispersion in autumn 2006. The applicant criticised the manner in which that goal would be achieved, namely by reopening final judgments and annulling through legislation certain judicial decisions. On 12 February 2011 the applicant’s spokesman explained to the Népszabadság newspaper that, in the applicant’s view:   “the Bill ordering the annulment of some judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to freely assess evidence. 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”.   On 8 March 2011, the day after the adoption of the Bill, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time), responded to the critiques of the judiciary in a press conference, where he 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”. 13.     Secondly, in relation to the proposal to reduce the mandatory retirement age of judges (from seventy to the general retirement age of sixty-two) in Article   26 (2) of the Fundamental Law of Hungary, on 7   April   2011 court presidents, including the applicant, addressed a letter to different 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 that 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 unexpectedly in 2012. In the morning of 11 April 2011 (the day of the vote on the proposals for amendment), 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 independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He added as follows:   “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.”   The same day, Parliament adopted the above-mentioned proposal (see Relevant domestic law below). 14.     On 14 April 2011 the plenary session of the Supreme Court, the applicant in his capacity as President of the National Council of Justice, as well as the presidents of regional and county courts addressed a communiqué to the Hungarian and European Union public, pleading for the autonomy and independence of the judiciary and criticizing the new mandatory retirement age for judges. 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 supervising) will be terminated the same day, without any transition period, due to the fact that they will have turned 62. By the 31 December 2012 a further 46 judges will have to terminate their career. As a consequence of this decision the timeliness of judicial proceedings will significantly deteriorate (reassignment of nearly 40   000 cases will be necessary, which may even cause several years’ delay in the judicial proceedings of tens of thousands of clients). The administration of courts will be seriously hindered since the replacement of dozens of retiring judges is extremely difficult. The multiple effect of the forced pensioning off, without any real justification, of highly qualified judges, who have several years of experience and practice, and 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 devoted their life 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 chance to contest 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 insinuates a political motivation. ” 15.     Thirdly, on 14 June 2011, Bill T/3522 on the amendment of certain legislation 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. As no substantive changes were made to the Bill (enacted on 4   July 2011 as Act LXXXIX of 2011), the applicant decided to challenge the Act before the Constitutional Court on grounds of unconstitutionality and violation of obligations enshrined in international treaties, making use of that prerogative for the first time in Hungarian history. The Constitutional Court, in its decision 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 default statutory rules). 16.     Lastly, the applicant expressed his views in a parliamentary debate on 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”). On 26   October 2011, the applicant addressed a detailed analysis of the Bills to Parliament, taking account of the comments received from judges throughout the country. He also decided to express his opinion directly before Parliament, in accordance with 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 fact that the draft legislation did not address the structural problems of the judiciary, but left them to the discretion of the chief executive of an external administration (the president of the new National Judicial Office), to whom excessive and, in Europe, unprecedented powers were being conferred without adequate accountability. C.     Removal of the applicant as President of the Supreme Court 17.     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). 18.     On 19 October 2011, in an interview on ATV, 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”. Some months earlier, on 14 April 2011, during a debate on the Fundamental Law, another Fidesz politician, Gergely Gulyás, MP, had declared on Inforádió that the President of the Supreme Court would remain the same and that only the name of the institution would change. 19.     On 19 November 2011, Gergely Gulyás submitted a Bill (no. T/4996) to Parliament proposing an amendment to the 1949 Constitution. The amendment sought to provide that Parliament would elect the president of the Kúria by 31 December 2011 at the latest. 20.     On 20 November 2011, MPs János Lázár and Péter Harrach, Fidesz and KDNP party leaders respectively, submitted a Bill (no.   T/5005) to Parliament on the transitional provisions of the Fundamental Law of Hungary. Under section 11 the legal successor 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) of the Transitional Provisions of the Fundamental Law of Hungary Bill, the mandates of the President of the Supreme Court as well as 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 stipulated that it provided comprehensive regulation of the succession of the Supreme Court, the National Council of Justice and their President. The successor (body or person) would be different according to the different nature of the separated functions. Having regard to the modifications of the court system, the Bill provided that the mandates of the President of the Supreme Court currently in office, as well as that of the President and members of the National Council of Justice, would be terminated upon the entry into force of the Fundamental Law. 21.     In order to bring other legislation into line on this issue, on 23   November 2011 a Fidesz MP, Ferenc   Papcsák, submitted an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. The amendment sought to terminate the mandates of the members and President of the National Council of Justice as well as those of the President and Vice-President of the Supreme Court upon the entry into force of the Fundamental Law. 22.     On 28 November 2011 Parliament enacted both the Organisation and Administration of the Courts Bill (as Act CLXI of 2011) and the Constitution of the Republic of Hungary (Amendment) Bill (as Act CLIX of 2011), the content of which is described above. The Transitional Provisions of the Fundamental Law of Hungary Bill was adopted without amendment on 30 December 2011 and published (as Transitional Provisions of the Fundamental Law of Hungary) in the Official Gazette on 31   December   2011. The date of the entry into force of the Fundamental Law was scheduled for 1 January 2012. 23.     The applicant’s mandate was terminated on 1 January 2012, three and a half years before its normal date of expiry. D.     Election of a new president to the Kúria 24.     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 22 above) entered into force on 2 December 2011. On 9 November 2011, the Organisation and Administration of the Courts Bill was amended with the introduction of a new criterion for the election of the new president of the Kúria. It provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term, 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 accordance with the proposal of the President of the Republic. E.     Consequences of the early termination of the applicant’s mandate as President of the Supreme Court 25.     The applicant is serving as a judge of the new Kúria (civil section). According to the internal regulation on press contacts at the Kúria, he is no longer entitled to express his opinions freely, as the giving of interviews is subject to prior consent by the President of the Kúria. 26.     The premature termination of the applicant’s mandate has also had pecuniary consequences. Firstly, he has lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court is entitled throughout the period of the fixed presidential term. Secondly, outgoing presidents of the Supreme   Court had the statutory right to certain benefits (an allowance for six months following the termination of his or her mandate, an office and a secretariat with two employees for two years, a pension supplement for life) of which the applicant was also deprived. The Remuneration and Allowances Act 2000 dealing, inter alia , with the entitlements of the President of the Supreme Court, 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), if he or she had reached retirement age at the time of the entry of force of the Act and had requested the allowance. 27.     Since the applicant had not attained retirement age by 1   January   2012, he could not claim payment of that post-function benefit. F.     European Commission procedures and the proceedings before the Court of Justice of the European Union 28.     On 12 December 2011, EU Justice Commissioner Viviane Reding wrote a letter to the Hungarian authorities raising concerns on the issue of the retirement age of judges. An annex to the letter also raised the issues of the President of the new National Judicial Office and the transformation of the Supreme Court into the Kúria, in particular the early termination of the applicant’s mandate as President of the Supreme Court before the end of the regular term. The Hungarian authorities answered and the European   Commission, on 11 January 2012, issued a statement on the situation of Hungary. 29.     On 17 January 2012, the Commission decided to open “accelerated” infringement proceedings against Hungary on, inter alia, the independence of the judiciary. [1] As regards the new mandatory retirement age for judges (and prosecutors), the Commission stated that EU rules on equal treatment in employment (Directive 2000/78/EC) prohibited discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, an objective and proportionate justification was needed if a government were to decide to reduce the retirement age for one group of people and not for others. The Commission did not find any objective justification for treating judges and prosecutors differently from other groups, notably at a time when retirement ages across Europe were being progressively increased. The Commission also asked Hungary for more information regarding the new legislation on the organisation of the courts. In its press release IP/12/24, the Commission stated as follows: “[u]nder the law, the president of a new National Judicial Office concentrates powers concerning the operational management of the courts, human resources, budget and allocation of cases. ... In addition, the mandate of the former president of the Supreme Court, who was elected for six years in June 2009, was prematurely terminated at the end of 2011. In contrast, other former judges of the Supreme Court continue their mandate as judges of the new Curia, which has replaced the Supreme Court.” 30.     On 7 March 2012, the Commission decided to send Hungary a reasoned opinion on the measures regarding the retirement age of judges and an administrative letter asking for further clarifications regarding the independence of the judiciary, in particular in relation to the powers attributed to the President of the National Judicial Office (powers to designate a court in a given case and the transfer of judges without consent). 31.     On 7 June 2012, the European Commission referred the case to the Court of Justice of the European Union (case C-286/12). On 6   November   2012, the Court of Justice declared that by adopting a national scheme requiring the compulsory retirement of judges, prosecutors and notaries when they reach the age of sixty-two – giving rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued – Hungary had failed to fulfil its obligations under Council Directive 2000/78/EC of 27 November 2000, which established a general framework for equal treatment in employment and occupation. The court observed that the categories of persons concerned by the provisions at issue benefited, until their entry into force, from a derogation allowing them to remain in office until the age of seventy, which gave rise, in those persons, to a well-founded expectation that they would be able to remain in office until that age. However, the provisions at issue abruptly and significantly lowered the age-limit for compulsory retirement, without introducing transitional measures to protect the legitimate expectations of the persons concerned. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution of 1949 32.     The relevant articles of the Constitution (as amended and in force at the material time) provided as follows: 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 shall be binding on all courts.” Article 48 (1) “[t]he President of the Supreme Court shall be elected by Parliament upon the recommendation of the President of the Republic ... A majority of two-thirds of the votes of Members of Parliament shall be required to elect the President of the Supreme Court.” B.     Organisation and Administration of the Courts Act (Act LXVI of 1997) 33.     Section 62 of the Act listed the president of a court among the so-called “court executives”, that is judges responsible for the management and administration of courts and judicial organisational units. 34.     Under section 69 of the Act, court executives were appointed for six   years. 35.     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: a)     mutual agreement, b)     resignation, c)     dismissal, d)     the expiry of the period of the term of office, e)     the termination of the person’s judicial mandate”. 36.     Under section 74/A(1) of the Act, if an appraisal 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. The 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)). 37.     The Act established the National Council of Justice and added the function of being at the same time President of that Council to those of President of the Supreme Court. The President of the National Council of Justice 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 (section 46(1)(q) of the Act). C.     Legal Status and Remuneration of Judges Act (Act LXVII of 1997) 38.     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.     Fundamental Law of Hungary of 25 April 2011, which entered into force on 1 January 2012 39.     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: a)     criminal matters, civil disputes, and other matters defined by law; b)     the legitimacy of administrative decisions; c)     the conflict of local ordinances with other legislation and on their annulment; 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 [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.” E.     Constitution of the Republic of Hungary (Amendment) Act (Act   CLIX of 2011), which entered into force on 2   December 2011 40. The Constitution of Hungary 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.     Transitional Provisions of the Fundamental Law of Hungary, 31   December 2011 41.     The Transitional Provisions of the Fundamental Law of Hungary read, in so far as relevant, as follows: Section 11 “(1)     The legal successor of 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 force.” [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 29 “(2)     ... The Transitional Provisions shall form part of the Fundamental Law.” G.     Organisation and Administration of the Courts Act (Act CLXI of 2011) 42.     The relevant parts of the Organisation and Administration of the Courts Act read as follows: Chapter VIII President of the Kúria and court leaders 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 NJO and the President of the Kúria for the First Time Section 177 “(1)     The President of the Republic shall nominate the President of the NJO 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 NJO 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 be terminated 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 of the Supreme Court, the National Council of Justice and its President is the Kúria for the purposes of activities related to the administration of justice, while in respect of the administration of courts, the President of the National Judicial Office, except as determined in the Cardinal Laws.” 43.     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. H.     Legal Status and Remuneration of Judges Act (Act CLXII of 2011), which entered into force on 1 January 2012 44.     The relevant parts of the Legal Status and Remuneration of Judges Act provide 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.” I.     Constitutional Court’s judgment no. 33/2012 of 16 July 2012 45.     In its judgment of 16 July 2012, the Constitutional Court declared unconstitutional and, therefore, 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 the formal point of view, a Cardinal Act must 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 does not fulfil that requirement. As regards the substantive unconstitutionality of the provision, the new regulation resulted in the removal of judges within a short period of three months. Notwithstanding the relative freedom of the legislator to determine the maximum age of judges, and the fact that a certain age cannot be deduced from the Fundamental Law, the Constitutional Court held that the introduction of a lowered retirement age for judges must be made 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 seventy years of age, the longer the transitional period required for introducing a lower retirement age. Otherwise, the irremovability of judges, which constitutes an essential element of independence of the judiciary, is violated. J.     Constitutional Court’s decision no. IV/2309/2012 of 19 March 2013 46.     The Vice-President of the Supreme Court, appointed by the President of the Republic following the applicant’s proposal as of 15   November 2009, for six years, 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 must be terminated when the Fundamental Law enters into force. The former Vice-President submitted a constitutional complaint to the Constitutional Court claiming that the termination of his position violated the rule of law, the prohibition of retroactive legislation and his right to a remedy. In its decision no.   IV/2309/2012, passed by eight votes to seven, the Constitutional Court rejected the complaint. It stated 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. Seven judges dissented and considered that changes with regard to the judicial system or the new Kúria had not fundamentally affected the status of the Vice-President. The dissenting judges concluded that the premature termination of the claimant’s term of office had weakened the guarantees for the separation of powers, had been contrary to the prohibition of retroactive law-making and had breached the principle of the rule of law and the right to a remedy. III.     COUNCIL OF EUROPE MATERIAL A.     Opinions of the Venice Commission 47.     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.” 48.     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. 49.     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 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 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, a