TrustHLT/LaCour huggingface dataset:
GR1 (Government): The government are of the opinion that under any of the above tests, the dispute at issue in the present case, a claim for a perverted right to hold an office as president of the Supreme Court and the National Council of Justice, one of the highest ranking public offices of a state with special constitutional status, was clearly of a public law nature, falling outside the scope of applicability of Article 6 of the convention.
GR1 (Government): The government referred to the court's finding in the case of Harabin versus Slovakia in 2002 that the applicant's post as president of the Supreme Court has involved by its very nature the exercise of powers conferred by public law and duties designed to safeguard the general interests of the state.
GR1 (Government): Moreover, public prosecutors have been found by the court to fall in the category of public servants exercising discretionary powers intrinsic to state sovereignty in accordance with the second condition of the Eskalinan test.
GR1 (Government): It follows that the post of the president of the Supreme Court in Hungary, whose privileges were regulated among those of the highest ranking public officials, including the president of the republic or the prime minister, clearly fell into the category of public servants in respect of which the right of access to court under Article 6 is not applicable in disputes concerning the termination of their office.
GR1 (Government): As regards the special constitutional status of the president of the Supreme Court as compared to other judges and the administrative heads of lower courts, I emphasize that none of the other judges or court executives were elected by the parliament and enjoyed the same privileges as the applicant.
GR1 (Government): And none of the court executives, other than the president of the Supreme Court, were excluded from supervision by the National Council of Justice.
GR1 (Government): The only common provision regulating their legal status was that the tenure of office was six years.
GR1 (Government): Another aspect of the applicability of Article 6, which arises in light of the third party interventions, is whether Article 6 can be interpreted as conferring on judges an individual right to independence.
GR1 (Government): It is clear from the wording of Article 6 that the holders of rights under Article 6 are those who are parties to judicial proceedings and not the judges proceeding in their cases.
GR1 (Government): Contrary to the third parties, the government are of the opinion that no individual right of judges to independence can be derived from Article 6.
GR1 (Government): The arguments of the third parties, therefore, have no relevance to the present case.
GR1 (Government): Similarly, the judgment of the European Court of Justice relied upon by the applicant in the case of Mr. Iori,
GR1 (Government): former parliamentary commissioner for data protection, was delivered in a different legal context.
GR1 (Government): To picture this difference, I would cite the statements of Hungarian NGOs most active in the field of human rights protection made after the judgment to the effect that it was not Mr. Iori who had the right to an independent data protection
GR1 (Government): institution, but the citizens of Hungary.
GR1 (Government): Under Article 6, it is not the applicant who has the right to be an independent judge, but Hungarian citizens and everyone under Hungarian jurisdiction have the right to have an independent judiciary.
GR1 (Government): Therefore, the applicant cannot claim to be a victim within the meaning of Article 34 of the convention in respect of any of the general concerns about the independence of the judiciary raised by the third parties and himself alike.
GR1 (Government): Mr. President, let me now highlight
GR1 (Government): some issues concerning the applicant's complaint under Article 10 of the convention.
GR1 (Government): Contrary to the applicant's allegations, there was no interference with his freedom of expression since the termination of his mandate as president of the Supreme Court had no relationship with the opinions expressed by him.
GR1 (Government): The fact that the public expression of his opinions predated the termination of his mandate is not sufficient to prove that there was a kosher relationship between them.
GR1 (Government): First, I point out that the constitutional court has found that the termination of the office of the vice president of the Supreme Court was objectively justified by the fundamental changes in the tasks and competencies of the president of the Korea.
GR1 (Government): It follows that the termination of the office of the president of the Supreme Court itself is justified for the same reasons.
GR1 (Government): Without elaborating on the details of these changes, which were set out in the government's memorial, I would simply point out that the constitutional court is in a better position than this honorable court to evaluate the nature of the changes in the Hungarian judicial system.
GR1 (Government): And the government see no reason for the court to overrule the finding of the constitutional court that there were indeed fundamental changes in the functions of the supreme judiciary authority in Hungary.
GR1 (Government): Moreover, in addition to the nature of the changes relevant to the termination of the office of vice president of the Supreme Court, there were further fundamental changes concerning the applicant's office itself.
GR1 (Government): When the hybrid function of president of the Supreme Court and the National Council of Justice, the applicant had been elected for ceased to exist upon the entry into force of the new fundamental law of Hungary, it was replaced by two offices.
GR1 (Government): The president of the Courier was the legal successor of the functions of the president of the Supreme Court.
GR1 (Government): And the president of the National Judicial Office was the legal successor to the functions of the president of the National Council of Justice.
GR1 (Government): Having regard to the circumstances of the applicant's election and his actual activities during his office, the president of the National Judicial Office is more appropriate to be regarded as his successor in his office than the president of the Courier.
GR1 (Government): Therefore, the changes stemming from the separation of the two posts themselves would have justified a reassessment of the applicant's suitability to either of the new functions.
GR1 (Government): However, it was felt that such a reassessment, which in light of the conditions of eligibility originally proposed, would have been necessarily of a political nature, just like the assessment prior to the applicant's election, was not appropriate.
GR1 (Government): That is why the political statements relied upon by the applicant have been made.
GR1 (Government): Later, however, at the very last stage of consultations with civil society organizations at a conference organized by the Hungarian Association of Judges on the 5th of November, 2011, at the Hungarian Academy for Training of Judges, which is a unit part of the Office of the National Council of Justice headed at the time by the applicant, the Association of 1,600 Professional Judges proposed that stricter professional criteria should be met by candidates to the posts of president of the National Judicial Office.
GR1 (Government): Members of the National Judicial Council and the president of the Korea.
GR1 (Government): Pursuant to that proposal, which was subsequently submitted by the Association to the competent parliamentary commission, a general eligibility criterion of five years of judicial service in Hungary was introduced for all the posts mentioned.
GR1 (Government): The government are of the opinion that the proposal of the Hungarian Association of Judges for the inclusion of the new eligibility criterion was motivated rather by circumstances of the applicant's election than by his statements made as president of the National Council of Justice.
GR1 (Government): Therefore, acceptance of this proposal by the legislator cannot be regarded as an interference with the applicant's freedom of expression, but as a means necessary to strengthen the authority and independence of the judiciary.
GR1 (Government): A five years of so-called waiting period is appropriate to ensure that no one could be appointed as a judge only in order to be nominated as president of the Korea.
GR1 (Government): It limits the scope of political bargaining in the process of election of the president of the Korea, whose role is more judicial and less managerial than that of the president of the Supreme Court used to be.
GR1 (Government): It limits the choice of politicians to a pre-existing pool of career judges subjected to strict rules of political independence under Hungarian law.
GR1 (Government): The applicant's service as a judge of an international court didn't justify these requirements as evidenced by the circumstances of his election.
GR1 (Government): Irrespective of the rules of independence applying to judges serving at international tribunals, the perception of their political independence always remains tainted by the political elements in their selection.
GR1 (Government): In this context, I would draw your attention to the fact that in spite of the improvements introduced in 2008 by the establishment of the so-called Wildhaber Committee, there is still an ongoing discussion within the Council of Europe about how the independence of the judges of the court could be better ensured, including by the rules of their selection and election at national and international level, respectively.
GR1 (Government): There have also been concerns expressed that national judges whose presence on this court is deemed to be highly desirable might be discouraged in many member states under the present rules of selection and election from becoming a candidate to be a judge of this court.
GR1 (Government): This proves the government's point that judicial service at an international court cannot be equated with national judicial service from the point of view of the independence or the perceived independence of the judiciary.
GR1 (Government): The aforesaid clearly show that the termination of the applicant's term of office as president of the Supreme Court was justified by the organizational and functional changes in the system of court administration and in the competencies of the Courier, and the new eligibility criteria was justified by the need to enhance the independence of the judiciary.
GR1 (Government): The measure complained of by the applicant had no connection with his opinion expressed in the media, and therefore there was no interference with his freedom of expression.
GR1 (Government): In the alternative, should the court find that the applicant was removed from his office as president of the Supreme Court on account of the opinions expressed by him, the government are of the opinion that the measure complained of was necessary in a democratic society for maintaining the authority and impartiality of the judiciary within the meaning of paragraph two of article 10.
GR1 (Government): Having regard to the circumstances of the applicant's election as president of the Supreme Court as well as to the fact that his actual functions and activities were rather of an administrative than of a judicial nature, the government submit that the applicant's office was very much of a governmental nature, too much so for the requirements of the independence of the judiciary.
GR1 (Government): Therefore, his removal from that office should be assessed in the light of the rules governing removal of the political appointees or government functionaries rather than the removal of judges.
GR1 (Government): Accordingly, the applicant who was elected in a process similar to the election to other high political functions is reasonable to be regarded as a political actor whose expressions, even concerning professional issues, are political expressions and whose removal from office, like his election to that office, is subject to political considerations.
GR1 (Government): In this case, the relevant political considerations were justified in a democratic society with a view to increasing the independence of the judiciary and thus for maintaining the authority and impartiality of the judiciary.
GR1 (Government): The measure was proportional since the applicant was not removed from his office as a judge and was accorded beneficial treatment in order to serve as Supreme Court judge.
GR1 (Government): Therefore, his removal from a governmental administrative position cannot be considered to have had any chilling effect on the expression of professional opinions by other judges.
GR1 (Government): It is to be underlined that any of the applicant's expression was not made as a judge or in a judicial function, but as a political appointee performing primarily managerial and administrative tasks to operate the judicial system and exercising in regard public power.
GR1 (Government): Moreover, the government considers that when it comes to the selection of the most suitable candidate for a position of head of a given organization with redefined functions and competence, the views of the candidate concerning the newly reformed organization are legitimately taken into account by any employer.
GR1 (Government): As regards the lack of judicial decision, the government submits that no adverse conclusions should be drawn from it in the context of proportionality because the inclusion of a requirement of a judicial remedy into Article 10 of the Convention would be contrary to Article 6, paragraph 1 of the Convention, which do not require that the right of access to court be guaranteed in respect of disputes of a public law nature.
GR1 (Government): Furthermore, it must be borne in mind that the law itself set higher standards of eligibility for the president of the highest court in Hungary as regards professional qualifications and independence, which the applicant didn't meet.
GR1 (Government): In accordance with the principle of subsidiarity and the doctrine of the margin of appreciation of the state, the government are of the opinion that it is for the national legislator to decide what eligibility criteria they find appropriate for the highest-ranking judicial post in Hungary, and no provision of the Convention can be interpreted to require that the legislator's decision be subjected to judicial review.
GR1 (Government): Finally, I would like to react to some allegations of the applicant which were made in the context of Article 41.
GR1 (Government): Contrary to the applicant's arguments, there were objective reasons of principle for the revocation of the Remuneration and Allowances Act 2000, governing the remuneration and allowances of the president of the republic, the prime minister, the president of the parliament, the president of the constitutional court, and the president of the supreme court.
GR1 (Government): The act, as it was introduced in 2000, provided for the president of the republic a pension supplement for life after his retirement from office, a so-called presidential pension.
GR1 (Government): In 2008, an amendment of the law was proposed by an opposition MP to the effect that the same allowance be provided for retired prime ministers.
GR1 (Government): The proposal was accepted, but as an unintended result of some cross-references in the act, all other former high public officials under the effect of the act became entitled to the benefit.
GR1 (Government): The revocation of the act served to eliminate this unintended result, pro futuro, and to return to the original state of affairs.
GR1 (Government): Under the law in force, presidential pension is only due to former presidents of the republic.
GR1 (Government): As a matter of course, acquired rights were not affected by the revocation of the act.
GR1 (Government): Those whose term of office had expired before the revocation of the act remained entitled to the post-term benefits.
GR1 (Government): However, the applicant had no acquired right to the post-term benefits provided for by that act.
GR1 (Government): Post-term benefits were provided for ex-presidents and ex-prime ministers while it was in force.
GR1 (Government): The right to these benefits was acquired by termination of the office and not while in office.
GR1 (Government): Furthermore, in respect of the presidential pension, the reaching of a pensionable age was a cumulative condition.
GR1 (Government): When the applicant's mandate was terminated and said act was no longer in force, therefore he didn't have a legitimate expectation to receive those benefits.
GR1 (Government): Contrary to the applicant's allegations, such benefits are not provided for the new president of the Courier-Aider.
GR1 (Government): Taking into consideration the efforts that I respectfully request the Honorable Court to find that insofar as the provision invoked are applicable, there was no violation of Mr. Bakos' right
GR1 (Government): under the convention.
Luis López Guerra (JudgeP): Thank you for your interventions.
Luis López Guerra (JudgeP): And now I would like to invite the judges of the Grand Chamber to put any question they may have to the parties, judge Yudkivska.
Ganna Yudkivska (Judge): I have two questions to the government, but of course, if the applicant wish to comment, he can do so.
Ganna Yudkivska (Judge): My first question relates to applicability of Article 6.
Ganna Yudkivska (Judge): It appears that claiming that the first condition of the Escalinan test, namely the explicit exclusion of access to court, has been met.
Ganna Yudkivska (Judge): Your government relied heavily on the fact that the applicant's dismissal had been written into the fundamental law itself, namely transitional provisions of the fundamental law, and was therefore not subject to any form of judicial review.
Ganna Yudkivska (Judge): I would like to refer, however, to the decision of your constitutional court, number 45, 2012, of 28 December 2012, in which the constitutional court concluded as follows.
Ganna Yudkivska (Judge): I quote, the constitutional court possesses, beyond doubt, the competence to proceed with reviewing transitional provisions of the fundamental law in whole and in parts on formal grounds with regard to its validity, invalidity, under public law, irrespectively to the fact whether transitional provisions of the fundamental law is or is not part of the fundamental law.
Ganna Yudkivska (Judge): I would like to ask you to clarify your position in light of this decision by the constitutional court.
Ganna Yudkivska (Judge): And my second question relates to the undertaking by your government to the Venice Commission in July 2011.
Ganna Yudkivska (Judge): Again, I quote, Hungary 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.
Ganna Yudkivska (Judge): I wonder if this undertaking's set times included the applicant or not.
Luis López Guerra (JudgeP): Thank you, judge Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): My two questions addressed to the government, but of course, the applicant can also comment on them.
Paulo Pinto de Albuquerque (Judge): The first one is on a point of Hungarian constitutional law.
Paulo Pinto de Albuquerque (Judge): Professor and judge Otto Bachof in 1951 wrote a marvelous text on a for fast ones, "Verfassungswidrige Verfassungsnormen", meaning unconstitutional constitutional norms.
Paulo Pinto de Albuquerque (Judge): My point is the following.
Paulo Pinto de Albuquerque (Judge): Uh, what is the situation with regard to Hungarian constitutional law?
Paulo Pinto de Albuquerque (Judge): Uh, does, uh, the constitutional law and the constitutional doctrine, um, uh, in Hungary acknowledge the possibility that there might be norms in the constitution that are unconstitutional.
Paulo Pinto de Albuquerque (Judge): For instance, imagine that a reform of the constitution provides for a suspension of in a mobility of a part of the judiciary.
Paulo Pinto de Albuquerque (Judge): Would that, uh, law enshrined, uh, through the means of a transitional provision, for instance, in the constitution be valid?
Paulo Pinto de Albuquerque (Judge): My second question, uh, is related to, uh, section 114 of the organization and administration of the courts act.
Paulo Pinto de Albuquerque (Judge): These provision established a new criterion for the election of the new president, which led to the eligibility of the former president of the Supreme court as president of the courier.
Paulo Pinto de Albuquerque (Judge): This criterion referred to the time served as a judge in Hungary, not counting the time served as a judge in the European court, for instance.
Paulo Pinto de Albuquerque (Judge): Now, Mr.
Paulo Pinto de Albuquerque (Judge): Baka, the applicant served these courts 17 years from 1991 to 2008.
Paulo Pinto de Albuquerque (Judge): We are today that the position of the garment is that a career of 17 years in this court, in the European court of human rights as the one of Mr.
Paulo Pinto de Albuquerque (Judge): Baka is not of equal value as the career for the same period of time in the domestic courts, I would like to hear the reasons I would like that the government clarified the reasons why this career of 17 years here at the court is not of the same value of a career at the national courts.
Paulo Pinto de Albuquerque (Judge): I'm not sure if I understood correctly the point of the government when it referred to the discussion, the ongoing discussion in the, um, council of Europe on the independence of the judges of the European court.
Paulo Pinto de Albuquerque (Judge): I'm not sure if I understood correctly that the government of Hungary doubts about the independence of these judges, of the judges of this court, that the judges of this court are not politically independent.
Paulo Pinto de Albuquerque (Judge): And that was the reason why the career of 17 years of Mr.
Paulo Pinto de Albuquerque (Judge): Baca was not of equal value of a career of a judge in the domestic courts for the same period.
Paulo Pinto de Albuquerque (Judge): I would like the government to clarify if that is the position, um, that was presented because I did not really understand the point of the government when it referred to the ongoing discussion in the council of Europe about the independence and the reinforcement of the independence of the judges of the European court.
Luis López Guerra (JudgeP): Judge Lemmens.
Paul Lemmens (Judge): And the question is somewhat prompted by something that was mentioned by counsel for the applicant about the possibility for judges to bring claims before the service tribunal.
Paul Lemmens (Judge): I would like to ask what would be the situation in, legal situation in two somewhat different situations than the one that we are discussing today.
Paul Lemmens (Judge): One is, the first one is the situation where a judge, an individual judge would be considered to be no longer suitable for the job.
Paul Lemmens (Judge): What sort of a suitability could be mentioned?
Paul Lemmens (Judge): Illness, would this also include political insuitability?
Paul Lemmens (Judge): Would that be a reason to take action against a judge?
Paul Lemmens (Judge): And my question here would be in particular, what would be the competent body to take action?
Paul Lemmens (Judge): And would there be any possibility of judicial review?
Paul Lemmens (Judge): And the second situation is the one of an alleged, in inappropriate conduct of a judge, a conduct of a judge that is incompatible with judicial ethics.
Paul Lemmens (Judge): Would it be possible to bring disciplinary proceedings against the judge?
Paul Lemmens (Judge): And if so, what would then be the competent body?
Paul Lemmens (Judge): And would there be a possibility of judicial review?
Paul Lemmens (Judge): I repeat, I realize that these are not the situations in this case, but to get a broader picture, I would like to know what would happen in these two situations.