The Council of Europe is losing its patience in the Baka case

The Committee of Ministers of the Council of Europe, in its capacity of supervising the execution of the judgments of the European Court of Human Rights, issued a new decision regarding the Baka v. Hungary case. In the long-pending supervision process, the Committee of Ministers examines the steps taken by the Hungarian government aimed at executing the judgment issued in 2016 in the Baka v. Hungary case, in which the European Court of Human Rights concluded that the removal of András Baka from his position as chief justice had a “chilling effect” in that it must have discouraged also other judges in future from expressing their professional opinion publicly.

The decision shows that the Committee of Ministers is concerned that the Hungarian Parliament is not taking any steps in order to strengthen judicial independence, and in particular about the continuing absence of safeguards against the arbitrary removal of judges in higher positions. The decision also shows that no steps have been taken to counter the chilling effect on the freedom of expression of judges, and the freedom of expression of judges continues to be unnecessarily restricted.

The Committee of Ministers invited the Hungarian government once again to submit an action plan that would enable a full assessment to be made by the Committee as to whether the concerns regarding the “chilling effect” on the freedom of expression of judges have been dispelled. As part of the action plan, the government should provide an evaluation as to the guarantees and safeguards in the domestic legislation that protect judges from undue interferences. The updated action plan shall be submitted by 16 December 2021 the latest. If no tangible progress will be achieved, the Committee of Ministers may adopt an interim resolution in the case at its March 2022 meeting, which would mean an even firmer step in the supervision process than the current decision.

Ten years have passed since the removal of András Baka, including the five years that lapsed since the judgment of the European Court of Human Rights. Despite the clear judgment and the ongoing supervision by the Committee of Ministers, the Hungarian government continues to do nothing to guarantee the freedom of expression of judges and to eliminate the chilling effect at the Hungarian courts.

Background information

At the end of 2011, the Parliament, upon a proposal by MPs of the ruling Fidesz-KDNP, terminated the mandate of András Baka as President of the Supreme Court of Hungary prematurely and without the possibility of judicial control. The “sin” of Mr Baka that led to his removal was that he publicly criticised the “legislative reform” affecting the judiciary initiated by the new government, which created a court system that is much more centralized and is exposed to government influence.

András Baka turned to the European Court of Human Rights in Strasbourg for remedy, which established that Hungary violated his right to freedom of expression and his right of access to a court. In the judgment, the European Court of Human Rights also warned that the premature termination of Mr Baka’s mandate undoubtedly had a “chilling effect” in that it must have discouraged also other judges in future from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary.

In July this year, Amnesty International Hungary and the Hungarian Helsinki Committee submitted a joint communication to the Committee of Ministers, warning that Hungarian judges continue to have well-founded reasons to fear sanctions, since the possibility of exerting pressure on judges is encoded in the current judicial system.

Even though the removal of Tünde Handó, the former President of the National Office for the Judiciary (NOJ) has eased the tensions somewhat, her successor, new NOJ President György Barna Senyei carries on with the controversial practice of invalidating calls for applications for judicial leadership positions, continues to have full discretion in the distribution of bonuses, and keeps in force the integrity policy used as a tool to silence judges.

It is especially worrying that while the European Court of Human Rights criticized that András Baka was removed from his position as chief justice by ad hominem legislation, in 2020 a new chief justice was elected based on recently introduced ad hominem modifications of the law. The new President of the Kúria, András Zs. Varga was elected without having served as a judge before and in complete disregard for the manifest objection of the judicial self-governing body.

Furthermore, the recent case of a judge who claimed to have been removed from the judiciary for political reasons shows that the evaluation proceedings may also serve as a tool for exerting pressure on judges, and even sitting justices may be forced to leave the bench before their case is closed before domestic courts.