CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 23 juin 2016

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font-size:10pt; background-color:#ffffff } .sA89582B { font-family:Arial; font-size:10pt; color:#0069d6 } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s4B8D41EE { font-family:Arial; font-size:10pt }     GRAND CHAMBER               CASE OF BAKA v. HUNGARY   (Application no. 20261/12)                     JUDGMENT     STRASBOURG   23 June 2016         This judgment is final.   In the case of Baka v. Hungary, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Luis López Guerra, President ,   Mirjana Lazarova Trajkovska,   Ledi Bianku,   Ganna Yudkivska,   Vincent A. De Gaetano,   Angelika Nußberger,   Julia Laffranque,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Erik Møse,   Helen Keller,   Paul Lemmens, judges ,   Helena Jäderblom, ad hoc judge ,   Aleš Pejchal,   Krzysztof Wojtyczek,   Faris Vehabović,   Dmitry Dedov, judges , and Johan Callewaert, Deputy Grand Chamber Registrar , Having deliberated in private on 17 June 2015 and on 14 March 2016, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 20261/12) against 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 Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of 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 his mandate had been terminated as a result of the views and positions that he had expressed publicly in his capacity as President of the Supreme Court, concerning legislative reforms affecting the judiciary. He relied on Article 6 § 1 and Article   10 of the Convention. 4.     The application was allocated to the Second Section of the Court (Rule   52 §   1 of the Rules of Court). 5.     Mr A. Sajó, the judge elected in respect of Hungary, withdrew from sitting 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) as in force at the time). 6.     On 27 May 2014 a Chamber of that Section, composed of Guido Raimondi, President, Işıl Karakaş, Nebojša Vučinić, Helena Jäderblom, Egidijus Kūris, Robert Spano and Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar, delivered a judgment in which it held unanimously that there had been a violation of Article 6 § 1 and Article   10 of the Convention. 7.     On 27 August 2014 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 15 December 2014 a panel of the Grand Chamber granted that request. 8.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 9.     The applicant and the Government each filed further observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Hungarian Helsinki Committee, the Hungarian Civil Liberties Union, the Eötvös Károly Institute, the Helsinki Foundation for Human Rights and the International Commission of Jurists, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 17 June 2015 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   Z. Tallódi , Ministry of Justice,   Agent , Ms   M. Weller , Ministry of Justice,   Co-Agent ;   (b)     for the applicant Mr   A. Cech , lawyer practising in Budapest,   Counsel , Mr   E. Látrányi , lawyer practising in Budapest,   Adviser .   The Court heard addresses by Mr Cech and Mr Tallódi. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 11.     The applicant was born in 1952 and lives in Budapest. A.     Election of the applicant as President of the Supreme Court and his functions 12.     On 22 June 2009, after seventeen years of service (from 1991 to 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. 13.     In that capacity, the applicant carried out managerial tasks and also had a judicial role, presiding over deliberations which resulted in uniformity resolutions (on consistency in case-law) and in guiding resolutions. He was also President of the National Council of Justice. This second function had been added to the tasks of the President of the Supreme Court in 1997 by the Organisation and Administration of the Courts Act (Law no.   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 (see paragraph 44 below). 14.     On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union elected the applicant President of the Network for a two-year term (from 2011 to 2013). B.     The applicant’s public statements and positions concerning the legislative reforms affecting the judiciary 15.     In April 2010 the alliance of Fidesz – Hungarian Civic Union (hereafter “Fidesz”) and the Christian Democratic People’s Party (KDNP) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional and legislative reforms. In his professional capacity as President of the Supreme Court and of the National Council of Justice, the applicant expressed his views on different aspects of the legislative reforms affecting the judiciary, notably 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. 16.     On 12 February 2011, in relation to the Nullification Bill (subsequently Law no.   XVI of 2011, ordering the annulment of final convictions relating to the dispersal of crowds in the autumn of 2006), the applicant’s spokesman explained to the newspaper Népszabadság that, in the applicant’s view, “the Bill ordering the annulment of certain judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to assess evidence freely. This is a serious constitutional problem. ... [T]he 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”. 17.     On 8 March 2011, the day after the enactment of the Nullification Bill, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time) responded at a press conference to the criticisms made by the judiciary, declaring that: “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.” 18.     On 24 March 2011, in a speech delivered to Parliament in the course of the debate on the Bill on the Fundamental Law of Hungary (the new Constitution), the applicant expressed his opinion on certain aspects of the proposed constitutional reform which concerned the judiciary, notably the new name given to the Supreme Court – Kúria –, the new powers attributed to the Kúria in the field of ensuring consistency in the case-law, the management of the judiciary and the functioning of the National Council of Justice, as well as the introduction of a constitutional appeal against judicial decisions. 19.     On 7 April 2011, in relation to the proposal to reduce the mandatory retirement age of judges (from 70 years to the general retirement age of 62) in Article   26 §   2 of the Fundamental Law of Hungary, the applicant, together with other court presidents, addressed a letter to various 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 the given proposal. Their concern was that, by abolishing the possibility for judges to remain in office until the age of 70, the proposed rule would force one-tenth of Hungarian judges (274   persons) to end their careers in 2012, earlier than planned, with all the attendant consequences for the functioning of the judiciary and the length of pending proceedings. 20.     On the morning of 11 April 2011 (the day of the vote on the proposals to amend the retirement age of judges), 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 the independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He refuted accusations of bias in favour of any political ideology within the judiciary, and continued: “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.” In his letter the applicant asked the Prime Minister to use his influence to prevent Parliament from adopting the proposal. On the same day, however, Parliament adopted the proposal (see “Relevant Domestic Law and Practice” below). 21.     On 14 April 2011 a joint communiqué was addressed to the Hungarian and EU public by the plenary session of the Supreme Court, by the applicant in his capacity as President of the National Council of Justice, and by the presidents of regional and county courts. It argued for the autonomy and independence of the judiciary and criticised the new mandatory retirement age for judges and the proposal to modify the model of judicial self-governance embodied in the National Council of Justice. The relevant extracts from the communiqué read as follows. “According to the proposal, the mandatory retirement age of judges will be reduced by 8 years as of 1 January 2012. As a result, the tenure of 228 judges (among them 121   judges responsible for court administration and professional supervision) will be terminated on that same date, without any transition period, since they will have turned 62. By 31 December 2012 a further 46 judges will have to terminate their careers. As a consequence of this decision, the rapidity of judicial proceedings will significantly deteriorate (nearly 40,000 cases will have to be reassigned, which may even result in several years’ delay in judicial proceedings, concerning tens of thousands of persons). The administration of the courts will be seriously hindered, since it is extremely difficult to replace dozens of retiring judges. The multiple effect of the forced pensioning-off, with no real justification, of highly qualified judges who have several years of experience and practice, 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 have devoted their lives 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 possibility of contesting 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 implies political motivation.” 22.     On 14 June 2011 Bill no. T/3522 on the amendment of certain legislative acts 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. On 4 August 2011, as no substantive changes had been made to the Bill prior to its enactment on 4   July 2011 as Law no.   LXXXIX of 2011, the applicant challenged the Law before the Constitutional Court, on the grounds of unconstitutionality and violation of the obligations enshrined in international treaties, making use of that power for the first time in Hungarian history. The Constitutional Court, in its judgment 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 the competence of a court by derogation from the default statutory rules). 23.     Lastly, on 26 October 2011 the applicant addressed to Parliament a detailed analysis of two new cardinal bills, namely 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 (which would be called by the historical name of “ Kúria ”). The applicant also decided to express his opinion directly before Parliament, as permitted by Article 45 § 1 of Parliamentary decision no.   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 draft legislation. He said that it did not address the structural problems of the judiciary, but left them to “the discretion of the executive of an external administration (the President of the proposed National Judicial Office, which would replace the National Council of Justice in managing the courts), who [would be] assigned excessive and, in Europe, unprecedented powers, with no adequate accountability”. The applicant referred to those new powers (to appoint judges and court executives, to issue normative orders and to designate the court in a given case) as “unconstitutional”. In this regard, he stated as follows: “This unrestricted, non-transparent and uncontrollable power is unparalleled in contemporary Europe ... The extent and uncontrollability of such centralised authority is without precedent, even in countries where the administration of the judiciary lies with the ministry of justice and even if we think of the socialist dictatorship, in the last years of which Kálmán Kulcsár, member of the Hungarian Academy of Sciences and Minister of Justice responsible for the administration of the judiciary, declared that he would appoint only persons recommended by the professional organs of the judiciary.” Finally, in his speech the applicant again raised the issue of the new retirement age for judges, saying that it would have a severe effect on the Supreme Court and that the need to have enough judges at the Kúria had not yet been addressed. In this connection, he maintained that the Kúria ’s main responsibility – that of ensuring consistency in the judicial application of laws – could be met only if that court were able to deliver judgments in a sufficient number of relevant cases. C.     Termination of the applicant’s mandate as President of the Supreme Court 24.     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). The date of entry into force of the Fundamental Law was scheduled for 1 January 2012. 25.     On 14 April 2011, during a debate on the Fundamental Law, a Fidesz politician, Gergely Gulyás, MP, declared on the radio station InfoRádió that the President of the Supreme Court would remain the same and that only the name of the institution would change. On 19 October 2011, in an interview on the television channel 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 name of the Supreme Court would change. He said that the legislation “will certainly not provide any legal ground for a change in the person of the Chief Justice”. 26.     On 6 July 2011, in the Position of the Government of Hungary on the Opinion on the Fundamental Law of Hungary adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011, CDL ‑ AD(2011)016), transmitted by the Minister for Foreign Affairs of Hungary, the Government 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. 27.     In the period between 19 and 23 November 2011, members of parliament submitted several amendments proposing that the applicant’s mandate as President of the Supreme Court be terminated. 28.     On 19 November 2011 Gergely Gulyás submitted a Bill (no.   T/4996) to Parliament, proposing an amendment to the 1949 Constitution (then in force). The amendment provided that Parliament would elect the President of the Kúria by 31 December 2011 at the latest. The reasoning of the Bill reads as follows: “In view of the Fundamental Law of Hungary and of the modifications to the court system resulting from that Law, in compliance with the Bill on the Transitional Provisions of the Fundamental Law of Hungary, and with a view to ensuring a smooth transition and continuity in the fulfilment of the tasks of the Kúria as from 1   January 2012, this Bill provides that Parliament must elect, by 31 December 2011 and according to the rules laid down in the Fundamental Law, the President of the Kúria who is to take office on 1 January 2012.” 29.     On 20 November 2011 two members of the parliamentary majority submitted a Bill (no. T/5005) to Parliament, on the Transitional Provisions of the Fundamental Law. Under section 11 of the Bill, the legal successors of the Supreme Court and of 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), the mandates of the President of the Supreme Court and 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 stated as follows: “The Bill regulates in a comprehensive manner the succession of the Supreme Court and the National Council of Justice and its president, in that the successor body or person shall be different for the respective duties. Having regard to the modifications to the court system, the Bill provides that the term of office of the President of the Supreme Court currently in office, and that of the President and the members of the National Council of Justice, shall be terminated upon the entry into force of the Fundamental Law.” 30.     On 23 November 2011 another member of parliament submitted a proposal for an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. While the previous versions of the Bill submitted by the Government (on 21 October and 17   November 2011) provided that the term of office of the court executives appointed before 1   January 2012 would last until the date fixed at the time of their appointment, this last mentioned amendment provided for an exception. It sought to terminate ex lege the mandate of the President and Vice-President of the Supreme Court. The reasoning of the proposal read as follows: “The aim of this proposal for an amendment, submitted before the final vote, is to ensure the compliance of consolidated Bill no. T/4743/116, by amending its transitional provisions, with the Fundamental Law, having regard to Bill no. T/4996 on the Amendment of Law no.   XX of 1949 on the Constitution of the Republic of Hungary and also to Bill no. T/5005 on the Transitional Provisions of the Fundamental Law of Hungary, both submitted to Parliament.” 31.     On 28 November 2011 Parliament adopted both the Organisation and Administration of the Courts Bill (as Law no.   CLXI) and the Constitution of the Republic of Hungary (Amendment) Bill (as Law no.   CLIX), with the content described above. 32.     On 30 December 2011 the Transitional Provisions of the Fundamental Law Bill was adopted without amendment. [1] The Transitional Provisions were published in the Official Gazette on 31   December 2011. 33.     As a consequence of the entry into force of all these constitutional and legislative amendments, the applicant’s mandate as President of the Supreme Court terminated on 1 January 2012, three and a half years before its expected date of expiry. 34.     The applicant remained in office as president of a civil-law division of the Kúria . D.     Election of a new president to the Kúria 35.     In order for a new president to be elected to the Kúria in due time, the Constitution of the Republic of Hungary (Amendment) Act (Law no.   CLIX of 2011, adopted on 28 November 2011 – see paragraph 31 above) came into force on 2 December 2011. On 9 November 2011 the Organisation and Administration of the Courts Bill was amended, and an additional criterion for the election of the new president of the Kúria was introduced. This provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term and who had served for at least five years as a judge (section 114(1) of Law no.   CLXI of 2011 – see “Relevant Domestic Law and Practice” 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 line with the proposal by the President of the Republic. E.     Consequences of the early termination of the applicant’s mandate as President of the Supreme Court 36.     Firstly, the applicant lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court was entitled throughout the period of the fixed presidential term. 37.     Secondly, the legislation dealing with certain post-term benefits for outgoing presidents of the Supreme Court (Remuneration and Allowances Act 2000) was repealed with effect from 1   January 2012. Section 227(1) of the Legal Status and Remuneration of Judges Act 2011 (as amended on 28   November 2011 and 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), had reached retirement age at the time of the entry into force of the Act and had requested the allowance. Since the applicant had not attained retirement age by 1   January 2012, he could not claim payment of that post-function benefit. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution of 1949 38.     The relevant Articles of the Constitution (as amended and in force until its replacement by the Fundamental Law of Hungary, with effect on 1   January 2012) provided as follows. Article 7 “(1)     The legal system of the Republic of Hungary accepts the generally recognised principles of international law, and shall harmonise the country’s domestic law with the obligations assumed under international law. ...” 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 [ jogegységi határozat ] shall be binding on all courts.” Article 48 “(1)     The President of the Supreme Court shall be elected by Parliament upon the recommendation of the President of the Republic; its vice-presidents shall be appointed by the President of the Republic upon the recommendation of the President of the Supreme Court. A majority of two-thirds of the votes of Members of Parliament shall be required to elect the President of the Supreme Court. ... (3)     Judges may only be removed from office on the grounds and in accordance with the procedures specified by law.” Article 50 “... (3)     Judges are independent and answer only to the law. Judges may not be members of political parties and may not engage in political activities. ...” Article 57 “(1)     In the Republic of Hungary everyone is equal before the law and has the right to have the accusations brought against him or her, as well as his or her rights and duties in legal proceedings, judged in a just and public trial by an independent and impartial court established by law. ...” Article 61 “(1)     In the Republic of Hungary everyone has the right to freely express his or her opinion, and furthermore to access and distribute information of public interest. ...” B.     Organisation and Administration of the Courts Act (Law no.   LXVI of 1997) 39.     To fulfil the task of ensuring the uniformity in the application of the law by the courts, the Supreme Court was empowered to adopt uniformity resolutions ( jogegységi határozat , section 25(c) of the Act) and to publish guiding resolutions ( elvi bírósági határozat , section 27(2)). 40.     Section 62 of the 1997 Organisation and Administration of the Courts Act listed the president of a court among the so-called “court executives”, that is, those judges responsible for the management and administration of courts and judicial organisational units. 41.     Under section 69 of the Act, court executives were appointed for six   years. 42.     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”. 43.     Under section 74/A(1) of the Act, if an assessment 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. A 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)). 44.     The Act established the National Council of Justice and added the function of President of that Council to that of President of the Supreme Court, the roles to be held simultaneously. The President of the National Council of Justice was under an explicit statutory obligation to express an opinion on draft legislation 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 (Law no. LXVII of 1997) 45.     Under section 57(2), sub-paragraphs (ha) and (hb) of the 1997 Legal Status and Remuneration of Judges Act, a judge was entitled to serve beyond the general retirement age, up to the age of 70. D.     Parliamentary decision no. 46/1994. (IX. 30.) OGY on the Rules of Parliament 46.     Article 45 §   1 of Parliamentary decision no. 46/1994. (IX. 30.) OGY on the Rules of Parliament provided as follows: “The President of the Republic, the members of the Government, the President of the Constitutional Court, the President of the Supreme Court, the Chief Prosecutor, the Ombudsman, the President of the State Audit Office, and also persons required to report to Parliament during debates on their reports and Hungarian members of the European Parliament during debates on matters of European integration, shall be entitled to take part and speak in sittings of Parliament.” E.     Constitution of the Republic of Hungary (Amendment) Act (Law no. CLIX of 2011), which came into force on 2   December 2011 47.     The Constitution of Hungary of 1949 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.     Fundamental Law of Hungary of 25 April 2011, which came into force on 1 January 2012 48.     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)     conflicts between local ordinances and 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 [ sarkalatos törvény ] [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.” G.     Transitional Provisions of the Fundamental Law of Hungary, which came into force on 1 January 2012 49.     The relevant parts of the Transitional Provisions of the Fundamental Law of Hungary read as follows. Section 11 “(1)     The legal successor to 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 31 “(2)     ... The Transitional Provisions shall form part of the Fundamental Law [4] .” H.     Organisation and Administration of the Courts Act (Law no.   CLXI of 2011), which came into force on 1 January 2012 50.     The relevant parts of the 2011 Organisation and Administration of the Courts Act read as follows. Chapter II The organisation of the courts 6. The Kúria Section 24 “The Kúria shall: (a)     adjudicate, in the cases specified in an Act, on appeals lodged against the decisions of a tribunal or a high court; (b)     adjudicate on motions for extraordinary review of a final court decision; (c)     adopt uniformity resolutions [ jogegységi határozat ], which shall be binding on all courts; (d)     analyse the judicial practice in cases closed with a final judgment, explore and examine the case-law of the courts; (e)     publish guiding resolutions [ elvi bírósági határozat ] [adopted by the Kúria ] and guiding decisions [ elvi bírósági döntés ] [adopted by the lower courts]; (f)     adjudicate on the conflict of local ordinances with other legislation and on their annulment; (g)     adjudicate on the establishment of non-compliance by a local authority with its statutory legislative obligations; (h)     act in other cases falling within its scope of competence.” Chapter VIII President of the Kúria and court executives 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 five 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 National Judicial Office and the President of the Kúria for the First Time Section 177 “(1)     The President of the Republic shall nominate the President of the National Judicial Office 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 National Judicial Office 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 ... 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 [National Council of Justice] shall terminate 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 to the Supreme Court, the National Council of Justice and its President shall be the Kúria for the purposes of activities related to the administration of justice, and – in respect of the administration of courts – the President of the National Judicial Office, except as determined in the Cardinal Acts.” 51.     Under section 173 of the Organisation and Administration of the Courts Act, section 177 came into force on the day following its promulgation (3 December 2011), and sections   185, 187 and   188 came into force on 1 January 2012. I.     Legal Status and Remuneration of Judges Act (Law no.   CLXII of 2011), which came into force on 1 January 2012 52.     The relevant parts of the 2011 Legal Status and Remuneration of Judges Act, as in force at the material time, provided as follows. Section 90 “A judge shall be exempted [from judicial service]: ... (h)     if the judge (ha)     has reached the applicable retirement age (hereafter 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 Law No.   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 Law No.   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.” J.     Judgment no. 33/2012. (VII. 17.) AB of the Constitutional Court of 16 July 2012 53.     The Hungarian Ombudsman appealed to the Constitutional Court against the retrospective lowering of the retirement age of judges. In its judgment of 16 July 2012, the Constitutional Court declared unconstitutional and consequently annulled the provisions on the compulsory retirement age of judges (sections 90(ha) and 230 of the 2011 Legal Status and Remuneration of Judges Act) as of 1   January 2012 (the date of entry into force of the Act). The Constitutional Court held that the new regulation violated the constitutional requirements for judicial independence on both “formal” and “substantive” grounds. From a formal perspective, a cardinal Act ought to 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 did not fulfil that requirement. With regard to the substantive unconstitutionality of the provision, the new regulation had resulted in the removal of judges within a short period of three months. Notwithstanding the relative freedom of the legislature to determine the maximum age of serving judges, and the fact that no specific age can be deduced from the Fundamental Law, the Constitutional Court held that the introduction of a lowered retirement age for judges had to be done 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 the age of 70   years, the longer the transitional period required for introducing a lower retirement age. Otherwise, the irremovability of judges, which constituted an essential element of the independence of the judiciary, would be violated. 54.     Following the Constitutional Court’s judgment of 16 July 2012, Parliament adopted Law no. XX of 2013, which repealed section 230, amended section 91 and added section 233/C to Law no.   CLXII of 2011, with effect from 2   April 2013. Under the modified scheme, the reduction of the compulsory retirement age to a unified limit of 65 years will be effective as of 1   January 2023. Transitional provisions apply to the period between 2   April 2013 (the entry into force of the amendment) and 31   December 2022. During this interval, the age-limit for compulsory retirement will vary between 70 and 65 years, according to the date of birth of the person concerned (the older a judge is, the longer the preparation time accorded to him or her before compulsory retirement). For those judges who had already been affected by the rules of compulsory retirement and forced to retire, the new law introduced the possibility of choosing, within a 30-day time-limit to be calculated from the amendment’s entry into force, from three options. Firstly, they could request a stand-by post at the court from which they had retired, meaning th