The Early Retirement Age of the Hungarian Judges

Abstract

The chapter discusses three court decisions regarding the independence of the judiciary in Hungary. The first is the Hungarian Constitutional Court’s decision declaring the law, which reduced the retirement age of the judges from 70 to 62 years, forcing around 274 judges into early retirement as unconstitutional. The second is the judgement of the European Court of Justice establishing the violation of EU law in the same matter, and the third is the judgement of the European Court of Human Rights in the case of Mr. Andras Baka, the President of the Hungarian Supreme Court, whose term of office was terminated by the new Fundamental Law of Hungary three and a half years before its normal date of expiry. Here the ECtHR stated that Hungary had infringed Mr. Baka’s rights, because his removal may have been related to his criticism of the transformation of the organization of the courts. The author argues that the aim of the Hungarian government with the reduction of the retirement age of the judges was exactly to get rid of the most of the court presidents, and replace them with new ones, loyal to the government. Since this aim has been fulfilled and with this the independence of the judiciary is undermined neither the decision of the Hungarian Constitutional Court, nor the judgments of the ECJ can be deemed as a success of the rule of law in a Member State of the European Union. The judgment of the ECtHR in the case of Baka v. Hungary is different from the two other decisions discussed here. On the one hand it is not about the normative regulation of the retirement age of the judges, which indeed concerned a lot of them, and on the other hand it was an individual complaint of one applicant, and the remedy directly also concerned this only person. Therefore, contrary to the decisions of Constitutional Court of Hungary and the ECJ, we cannot consider the judgment of the ECtHR as a missed opportunity to enforce judicial independence.