Following a judgment concluding that the removal of the Supreme Court President in 2012 was prompted by the criticism he voiced, the CoE called on Hungary to protect the freedom of expression of judges, but to no avail: today, judges are facing retaliatory measures and media attacks once again for voicing professional criticism.
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In 2012, the mandate of the President of the Supreme Court, András Baka was terminated three and a half years before the end of his regular term, allegedly because of the “reform” of the court system. However, the European Court of Human Rights found in the Baka v. Hungary case in 2016 that his early dismissal was instead “prompted by the views and criticisms that he had publicly expressed in his professional capacity” about legislative steps, which violated his freedom of expression.
The Committee of Ministers, monitoring the execution of the judgment in the Baka v. Hungary case, recommended that Hungary takes measures to lift and countervail the “chilling effect” of the violation in the Baka v. Hungary case on the freedom of expression of judges.
The Baka case will be on the agenda of the Committee of Ministers on 23-25 September 2019. With a view to this, the Hungarian Helsinki Committee submitted a communication to the Committee of Ministers in August, arguing the following, among others:
- the Government has failed to take any measures to lift and countervail the “chilling effect” of the violation of Mr Baka’s freedom of expression;
- and has failed to adopt any guarantees to avoid any retaliation against judges publicly voicing criticism in relation to the independence of the judiciary in Hungary.
Instead, retaliatory measures against judges expressing criticism and attempts to undermine their professional reputation have been common since 2018, with the National Judicial Office and government-affiliated media systematically targeting judges critical towards the President of the National Judicial Office. These attacks are stemming from the conflict between the National Judicial Office (a one-person decision-making mechanism with excessive powers over the court administration, elected by the Parliament) and the National Judicial Council (a judicial self-governing body), which the European Association of Judges characterized as a “constitutional crisis”. In its submission, the HHC argued that targeting judge members of the National Judicial Council has amplified the “chilling effect” on the freedom of expression of judges instead of countervailing it.
Removing Mr Baka prematurely was one of the first steps in the long line of governmental measures attempting to undermine the independence of the judiciary in Hungary, with the attacks against members of the National Judicial Council being the latest development in this regard.
Failing to execute the judgment in the Baka v. Hungary case is all the more worrying because the threats against the independence of the judiciary in Hungary and the Baka case itself were also included in the so-called “Sargentini Report” of the European Parliament. This report triggered the Article 7 procedure against Hungary, in which the first hearing was held yesterday in Brussels.
The communication of the HHC submitted to the Committee of Ministers is available here.
Update: in its decision delivered in September 2019, the Committee of Ministers “noted with grave concern the reports suggesting that the ‘chilling effect’ of the violation found by the Court under Article 10 and affecting the freedom of expression of judges and court presidents in general has not only not been addressed but rather aggravated”; and urged the Hungarian authorities “to provide information on the measures envisaged to counter this ‘chilling effect’ in order to fully guarantee and safeguard judges’ independence and freedom of expression and dispel the existing concerns about the situation”.