Hungarian legislation should unambiguously guarantee freedom of expression of judges

More than seven years have passed since the European Court of Human Rights (ECtHR) delivered the Baka v. Hungary judgment, requiring Hungarian authorities to lift and countervail the “chilling effect” on the freedom of expression of judges. Throughout the years, the general context within which the judgment should be executed has significantly changed. Taking into account the leading role of the new Kúria President in silencing judges, the proper execution of the judgment requires legislative measures that guarantee the freedom of expression of Hungarian judges in line with the ECtHR jurisprudence.

In the judgment issued in the  Baka v. Hungary case in 2016, the Court found that the right to freedom of expression of the former President of Hungary’s Supreme Court had been violated because the premature termination of his mandate was “prompted by the views and criticisms that he had publicly expressed in his professional capacity”. In its capacity to monitor the execution of European Court of Human Rights judgments, the Committee of Ministers of the Council of Europe will resume consideration of the Baka v. Hungary case in December 2023. 

In the communication submitted to the Committee of Ministers in October, the Hungarian Helsinki Committee warned that the Hungarian Government had failed to ensure that judges could freely express their professional opinion on the independence of the judiciary, without having to fear detrimental consequences. This “chilling effect” on the freedom of expression of judges is encoded in the Hungarian court system, most judges are afraid to express their opinion even in relation to professional matters, and the Government has done nothing to counter this. 

The Hungarian Helsinki Committee recommends the Committee of Ministers to consider the role and activity of the current Kúria President as part of the context of proper execution when assessing the general measures to be taken by Hungarian authorities to guarantee the freedom of expression of judges. General measures prescribed to lift and countervail the chilling effect on the freedom of expression of judges and rebuild the confidence of Hungarian judges in their ability to express their opinions without fear of negative consequences shall primarily require the Hungarian authorities to introduce legislative measures, possibly at the rank of cardinal laws that guarantee the exercise of the freedom of expression and provide adequate legal remedy against its breaches.