Independent judiciary

The grand chamber of the European Court of Human Rights (ECHR) on June 23 issued a very important judgment concerning the political authority’s interference on the high judiciary. The court ruled that political interference on the high judiciary through constitutional amendments was a violation of “the separation of powers and the independence of the judiciary.” The ruling is long and written in highly technical legal language. Let me write a very simple and short summary. 

In October 2011, the ruling Christian Democratic People’s Party in Hungary submitted two constitutional amendments to parliament. In one of them, the mandatory retirement age of judges was to be reduced from 70 to the general retirement age of 62, thus prompting the retirement of 228 top judges. The second amendment was about changing the structure and names of Hungary’s Supreme Court and its National Council of Justice. 

The president of both courts, Judge Andras Baka, declared that these proposals were against the principle of the separation of powers and the independence of the judiciary. Baka was also to be affected by the pensioning off of judges with the reduction of the retirement age. 

Today, Hungary is a “democracy.” But it is often described by political scientists as “delegative,” “illiberal” and “authoritarian.” 

Baka was unable to open a nullification case in the Hungarian Constitutional Court, so he filed an individual appeal to the ECHR, which was accepted. 

First of all, we have learned that an annulment appeal against a constitutional change is not possible, but a case about a violation of individual rights is possible. 

Secondly, the court recognized that all public officials serving in the judiciary can be expected to show restraint in exercising freedom of expression in all cases where the authority and impartiality of the judiciary is likely to be called into question. But in important matters concerning the judiciary, it is not only a matter of freedom of expression but also a professional duty. 

Thirdly, in accordance with the principle of separation of powers, members of the judiciary cannot be equated with “ordinary civil servants” and they should be equipped with special guarantees. 

Regarding the dismissal in Turkey of staff of the Supreme Court of Appeals (Yargıtay) and the Council of State (Danıştay), the most important judgment of the ECHR can be summarized as follows: The rearrangement of staff and members of the judiciary with the implementation of “transitional provisions” implies a political motivation for the change.

In Turkey, very recently, the dismissal of members of the high judiciary was introduced with transitional provisions. Members lost their positions on the date of the publication of the law and new appointments were to be made in five days without any transitional period.

If the clearance of members of the “Gülen movement” had been made with objective criteria and through a transitional period then nobody could have opposed it. However, the new Yargıtay and Danıştay are being formed through political bargaining, with the government getting the lion’s share. 

The June 23 verdict of the ECHR should be fully translated by Turkey’s Bar Association and delivered to all legal people, judges and prosecutors. The reference number is The Case of Baka v Hungary, 20261/12.