Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights held that Hungary had violated the right to freedom of expression of the President of Hungary’s Supreme Court by terminating his contract after he spoke publicly about judicial reforms. After legislation was adopted which changed the structure of the Hungarian courts and lowered judges’ retirement age the judge criticized the reforms in a series of public letters and in speeches before Parliament. The Court held that the termination of the judge’s contract was directly linked to the expression of his views and therefore constituted an interference with his rights. It stressed that the Council of Europe obligates judges to promote and protect judicial independence, and that the judge’s comments “fell within the context of a debate on matters of great public interest [and] called for a high degree of protection for his freedom of expression and strict scrutiny of any interference” [para. 171].
On June 22, 2009, after serving the European Court of Human Rights for 17 years and being a member of the Budapest Court of Appeal for more than one year, András Baka was elected as President of Hungary’s Supreme Court on a fixed-term contract of six years until June 22, 2015. Baka was also President of the National Council of Justice, a secondary function added to the President of the Supreme Court’s responsibilities pursuant to the Organization and Administration of the Courts Act of 1997. Among his responsibilities as head of the National Council of Justice, Baka was required to express his views on legislative proposals affecting the judiciary.
In 2011, in his capacity as President of the Supreme Court and the Hungarian National Council of Justice, Baka openly criticized various reforming laws and provisions. He expressed his concerns on the Nullification Bill, which ordered the annulment of final convictions relative to the dispersal of crowds in the autumn of 2006 and delivered a speech criticizing the new Fundamental Law of Hungary. He and other judges sent a letter to the President of the Republic and the Prime Minister voicing their concerns on the provisions of the Fundamental Law of Hungary lowering the mandatory retirement age for judges, and he reaffirmed his concerns on the proposal for lowering the mandatory age for judges’ retirement by saying in a letter addressed to the Prime Minister that “…the proposal was humiliating and that it infringed the principles of the independence and irremovability of judges” [para. 145]. He – along with the plenary of the Supreme Court, and other judges – issued a communication reiterating his views on the new age retirement for judges while also criticizing the modification proposal affecting the National Council of Justice and the communication expressed that “…the new retirement age had been regulated in the Fundamental Law to avoid any possibility of judicial review by the Constitutional Court, and suggested that there had been political motivation behind that approach” [para. 145]. He spoke before Parliament and expressed his concerns on the proposal to replace the National Council of Justice so that an external administration could manage the Courts and stated that “…the new body would have ‘excessive,’ ‘unconstitutional’ and ‘uncontrollable’ powers” [para. 145].
Immediately after his parliamentary speech of November 3, 2011, proposals to remove Baka from his post at the Supreme Court were made public. The premature termination of his fixed-term contract entered into force on January 1, 2012, along with the Fundamental Law and the successor to the Supreme Court known as “Curia” or “Kúria.” The transitional provisions of Hungary’s Fundamental Law stated, inter alia, that immediately upon its entry into force, the mandate of the Supreme Court President would be terminated and that the Hungarian Parliament would elect a new president by the end of the year. Baka continued to serve as head of the civil-law division of the Kúria.
To elect the new President of the Supreme Court within the timeframe provided by Hungary’s Fundamental Law, the Organisation and Administration of the Courts Act was amended to include a new criterion for the selection of the new President of Kúria, according to which the candidate for the post must have been a judge in Hungary for at least five years. Since Baka did not fulfill that criterion, he was not considered for the position.
Baka incurred pecuniary loss relative to the remunerations and other benefits agreed upon in his fixed-term contract with the Supreme Court as a result of the termination of his position. He was also denied other post-term benefits such as a pension because he had not attained retirement age by January 1, 2012 when the Legal Status and Remuneration of Judges Act 2011 came into force.
In March 2012, Baka filed a complaint before the European Court of Human Rights, arguing that Hungary had violated Articles 6 and 10 of the Convention due to his premature dismissal as President of the Supreme Court. He contended that the premature removal of his post was a direct result of the views he had expressed in his official capacity against the legislative measures affecting the judiciary.
On May 27, 2014, the Court delivered a decision holding Hungary responsible for violating Articles 6 and 10 of the Convention. It concluded that the early termination of Baka’s contract was a result of the views and criticism he had expressed and therefore constituted an interference with his right to freedom of expression. The Court held that although the interference was provided by law and pursued a legitimate aim it was not necessary in a democratic society as Baka’s expressions concerned matters of public interest. The Court also held that restricting Baka’s freedom of expression was not proportionate to the aim pursued and that it had a “chilling effect” on other judges’ freedom of expression [para. 125]. Lastly, the Court observed that the absence of any judicial proceeding to challenge Baka’s early dismissal made the measure disproportionate in light of the aim pursued.
On August 27, 2014, the case was referred to the Grand Chamber pursuant to Article 43 of the Convention. The Grand Chamber further granted the Government’s request on December 15, 2014 to re-examine the merits of the present case.
The Grand Chamber of the Court delivered a majority judgment. The central issue for the Court’s determination was whether the termination of Baka’s contract was an interference with his right to freedom of expression and, if so, whether it was justified.
Baka argued that his early dismissal was prompted by his views and criticism on a set of legislative measures affecting the judiciary, and that the Government camouflaged his de facto dismissal by citing a change in the President of the Supreme Court’s functions for which they did not provide any substantial evidence.
The Government maintained that the termination was due to the changes in the structure and functions of the judiciary. The Government submitted that implementing a new criterion for the selection of the President of the Supreme Court, according to which the candidate must have been a judge in Hungary for at least five years, aimed to reduce political interference in the selection process and secure the independence of the judiciary and so there was a pressing social need for any interference in Baka’s rights.
The Hungarian Helsinki Committee, the Hungarian Civil Liberties Union and the Eötvös Károly Institute were admitted as third party intervenors, and submitted that “present case was an outstanding example of how violations of individual fundamental rights were intertwined with processes threatening the rule of law” [para. 136]. The International Commission of Jurists, also a third party intervenor, submitted that “the Convention should be interpreted to preclude restrictions on freedom of expression applicable to judges that would impair the right and the duty of the judiciary to speak out in protection of judicial independence” [para. 139].
The Court acknowledged that it had to determine whether the right to freedom of expression was affected or if the termination of the contract only infringed “the exercise of the right to hold a public post in the administration of justice, a right not secured in the Convention” [para. 140]. It held that “there is prima facie evidence of a causal link between the applicant’s exercise of his freedom of expression and the termination of his mandate” [para. 148], and that the Government’s arguments on the bills concerning the termination of Baka’s mandate were not robust enough and that the changes introduced to the functions of the Supreme Court’s President were irrelevant and did not justify Baka’s premature dismissal. Accordingly, the Court held that Baka’s removal from his post constituted an interference with his right to freedom of expression.
Having found an interference with Baka’s freedom of expression, the central issue for consideration was whether such interference was prescribed by law, followed a legitimate aim, and was necessary in a democratic society. The Court held that although there were some doubts about the legitimacy of the law used to justify Baka’s contract termination it would “proceed on the assumption that the interference was ‘prescribed by law’” [para. 153].
The Court rejected the Government’s argument that the removal of Baka intended to preserve the judiciary’s authority and impartiality, and held that, conversely, the termination of the contract “appeared to be incompatible” with the aim of protecting the judiciary’s independence and added that the measure could not serve the independence of the judiciary as it was “a consequence of the previous exercise of the right to freedom of expression by the applicant” [para. 156]. The Court stressed that “…a State Party cannot legitimately invoke the independence of the judiciary in order to justify a measure such as the premature termination of the mandate of a court president for reasons that had not been established by law and which did not relate to any grounds of professional incompetence or misconduct” [para. 156].
Although the Court did not have to assess whether Baka’s dismissal was necessary in a democratic society since it was invalid as it did not pursue a legitimate aim, the Court was of the view that examining the necessity argument was of importance given the parties’ submissions in the present case. The Court recalled that freedom of expression is one of the cornerstones of the democratic governance and individuals’ self-fulfillment and emphasized that the concept of “necessity” implies a “pressing social need” that State parties must address under European supervision [para. 158].
The Court noted that special regard must be given to the nature of the expression, notably whether it was political speech or concerned a matter of public interest – including “on the functioning of the judiciary” [para. 159]. The Court also indicated that the “nature and severity of the sanctions” and the procedural guarantees afforded to the victim must also be assessed to determine whether the restrictive measure was proportionate to the aim pursued [paras. 160-161]., The Court recognized that “it is legitimate for a State to impose on civil servants … a duty of discretion” but stressed that there must be a fair balance between an individual civil servant’s right to freedom of expression and the “legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10” [para. 162]. It added that although members of the judiciary could be asked to “show restraint”, the need to protect the independence of the judiciary means that “any interference with the freedom of expression of a judge in a position such as the applicant’s calls for close scrutiny on the part of the Court” [para. 165]. The Court noted the “chilling effect” that sanctions can play on other judges [para. 167].
Applying the principles to the present case the Court discussed Baka’s position in the judiciary, and the Council of Europe documents which state that “each judge is responsible for promoting and protecting judicial independence” and that “judges and the judiciary should be consulted and involved in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system” [para. 168]. The Court characterized Baka’s statements as “not go[ing] beyond mere criticism from a strictly professional perspective” and held that they “fell within the context of a debate on matters of great public interest, called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State” [para. 171].
The Court also noted the importance of “the principle of the irremovability of judges” which protects judicial independence and found that Baka’s removal “defeated, rather than served, the very purpose of maintaining the independence of the judiciary” [para. 172]. The Court held that the interference with Baka’s rights “were not accompanied by effective and adequate safeguards against abuse” [para. 174].
The Court concluded the following: (i) Baka’s speeches and communications were inherent to his position as head of the National Council of Justice and concerned matters of public interest; (ii) his dismissal defeated the purpose of maintaining the independence of the judiciary, one of the main arguments advanced by the Government; (iii); he was not provided with adequate guarantees and procedures against interference with his rights; and, (iv) terminating Baka’s fixed-term contract had a chilling effect “in that it must have discouraged not only him but also other judges and court presidents in future from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary” [para. 173]. Accordingly, the Court held that Hungary had violated Article 10 and awarded Baka damages of EUR 70,000 for pecuniary and non-pecuniary damages and EUR 30,000 for costs and expenses.
Judges Pinto de Albuquerque and Dedov and Judge Sicilianos concurred with the majority’s decision on the Article 10 violation but made additional comments on the importance of protecting judicial independence. Judge Pejchal disagreed with the majority in finding a violation of any of the Convention’s provisions since, in his view, it was impossible to ascertain Baka’s true intentions behind his official speeches and the the motivation behind the President of the Republic and the Parliament’s decision could not be determined. Judge Wojtyczek disagreed with the structure of the majority’s assessment of the Article 10 violation on the grounds that it had not identified a legitimate aim of the interference, and so stated that it would be illusory to assess whether interfering with Baka’s freedom of expression was necessary in a democratic society. Judge Wojtyczek considered that “[s]uch an approach is problematic, since the necessity of interference can be assessed only in the light of a legitimate aim. The existence of a legitimate aim is a logical pre-condition for the proportionality test. A measure must be ‘proportionate to the legitimate aim pursued’ (see paragraph 158 of the judgment). Without any legitimate aim, the whole question of necessity becomes devoid of purpose” [p.108].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the right to freedom of expression by reaffirming that terminating the mandate of a court president by reason of preserving the independence of the judiciary could not be deemed a legitimate ground to suppress freedom of expression pursuant to Article 10 of the Convention. The Court emphasized how restricting a judge’s freedom of expression by terminating a contract endangered the judiciary’s independence and had a “chilling effect” on other judges who could potentially participate in public debates concerning matters related to the judiciary and the administration of justice.
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