Last Updated on November 1, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 45434/12
J.B. and Others against Hungary
and 2 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 27 November 2018 as a Chamber composed of:
Ganna Yudkivska, President,
Paulo Pinto de Albuquerque,
Robert Spano,
Faris Vehabović,
Iulia Antoanella Motoc,
Carlo Ranzoni,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above applications lodged on 20 June and 11 December 2012 respectively,
Having regard to the Government’s observations and the applicants’ observations in reply,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in three applications (nos. 45434/12, 45438/12 and 375/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 160 Hungarian nationals. The 158 applicants in the first two applications (nos. 45434/12 and 45438/12) were all judges at different Hungarian courts. They lodged their applications with the Court on 20 June 2012. The two applicants in application no. 375/13 were public prosecutors. They lodged their application on 11 December 2012. A list of the applicants is set out in appendix 1.
2. The applicants were represented, respectively, by Mr D. Karsai (in application no. 45434/12), Mr A. Cech (in application no. 45438/12) and Mr A. Kádár (in application no. 375/13), lawyers practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.
3. The applicants complained, in essence, about the lowering of their mandatory retirement age and the consequences of that measure on their professional career and private life.
4. On various dates, seventy-three applicants (in applications nos. 45434/12 and 45438/12) withdrew their complaints. Their details are listed in appendix 2.
5. Three applicants in application no. 45438/12, Mr L. Erményi, Ms A. R. Kántor and Ms R. Szabóné Farkas, died on 6 January 2015, 25 September 2015 and 3 May 2016 respectively. Their heirs (for their names, see paragraph 48 below and appendix 1) applied to pursue the application before the Court in their stead and retained the same lawyer to represent them.
6. On 4 October 2012 the President of the Second Section of the Court (to which the case was initially allocated under Rule 52 § 1 of the Rules of Court) granted requests for anonymity submitted by certain applicants in application no. 45434/12 (Rule 47 § 4) and decided that the documents deposited with the Registry of the Court in which the said applicants’ names appeared or which could otherwise easily lead to their identification be treated confidentially (Rule 33).
7. On 4 and 13 March and 15 May 2014, respectively, the applications were communicated to the Government under Article 8 of the Convention.
8. On 2 November 2015 the applications were allocated to the Fourth Section of the Court.
9. On 13 June 2016 and 5 June 2018, respectively, Mr András Sajó and Mr Péter Paczolay, judges elected in respect of Hungary, withdrew from the case (Rule 28 of the Rules of Court). Accordingly, the President appointed Mr Robert Spano, the judge elected in respect of Iceland, to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).
A. The circumstances of the case
10. The facts of the case, as submitted by the applicants, may be summarised as follows.
11. The age-limit for compulsory retirement of Hungarian judges had been fixed at seventy since 1869. A judge could decide to retire when he or she attained pensionable age, but had also been free to continue in judicial service until the age of seventy if he or she so wished.
12. A similar rule had been in force as regards public prosecutors since 1 October 1997.
13. In 2011 that regulation was amended a few days before the adoption of the Fundamental Law on 25 April 2011. The amended text of the Fundamental Law, which entered into force on 1 January 2012, stated that the service of judges and public prosecutors would terminate upon their reaching the general retirement age (see paragraph 28 below). The constitutional provisions were implemented by Act no. CLXII of 2011 on the Legal Status and Remuneration of Judges (“the Legal Status and Remuneration of Judges Act”, see Baka v. Hungary [GC], no. 20261/12, § 52, ECHR 2016) and Act no. CLXIV of 2011 on the Legal Status of the Attorney General, the Public Prosecutors and Other Public Prosecution Employees, and on the Public Prosecution Career (“the Legal Status of Public Prosecutors Act”, see paragraph 32 below). Those laws also entered into force on 1 January 2012. All the judges and public prosecutors who had already reached pensionable age within the meaning of Act no. LXXXI of 1997 on Social-Security Pensions (“the 1997 Pensions Act”) before 1 January 2012 were obliged to retire on 30 June 2012, and those who would reach that age in 2012 were required to retire on 31 December 2012.
14. Most of the applicants, with the exception of those mentioned in paragraphs 15 and 16 below, fell into one of the above-mentioned categories and were relieved from judicial service by the President of the Republic (see decision no. 96/2012, adopted on 2 May 2012, for the list of those who were relieved as of 30 June 2012, and decision no. 155/2012, adopted on 6 July 2012, for the list of those who were relieved as of 31 December 2012) or from the public prosecution service by the Attorney General (as of 31 December 2012).
15. Four judge applicants retired on their own initiative, allegedly with a view to avoiding the humiliation of their impending forced retirement. Two of them, Mr Sándor Kardos and Ms Mária Kiss (both applicants in application no. 45438/12), were relieved from service by decisions adopted already in 2011. Mr Kardos was relieved from service by the President of the Republic by a decision of 7 October 2011, effective as of 31 December 2011, whereas Ms Kiss was relieved from service by a decision of 13 December 2011, effective as of 31 May 2012. After the Bill amending the Legal Status and Remuneration of Judges Act (subsequently Act no. XX of 2013, see paragraph 31 below) had become public, Ms Kiss attempted to withdraw her notice of retirement, but to no avail.
The retirement requests of the other two judges, Ms Éva Anna Faragó (in application no. 45434/12) and Ms Klára Czene (in application no. 45438/12), who were to reach pensionable age after 2012, were accepted on 23 January 2013 by the President of the Republic. The retirement of Ms Faragó was brought about with immediate effect on the said date, whereas Ms Czene was relieved from service on 10 March 2013.
16. Two applicants, Ms E.M.S. (in application no. 45434/12) and Mr Mátyás Mészáros (in application no. 45438/12), both judges, were to reach pensionable age after 2012. Following developments in the applicable legal regulation (see, in particular, paragraphs 17 and 22 below), they eventually remained in post unaffected.
17. In judgment no. 33/2012 of 16 July 2012, the Constitutional Court declared unconstitutional and repealed the provisions on the compulsory retirement age of judges with retrospective effect, that is, as of 1 January 2012. At the same time, it held that the judges who had already been forced to retire under the unconstitutional provisions could not be reinstated by force of the Constitutional Court’s judgment alone; their legal situation was to be settled in accordance with the rules of the Legal Status and Remuneration of Judges Act.
18. The Constitutional Court observed that the notion of “general retirement age” enshrined in the Fundamental Law (see paragraph 28 below) did not have any corresponding legal provision at statutory level. Act no. LXXXI of 1997 on Social-Security Pensions (“the 1997 Pensions Act”) did not apply a single and generally applicable retirement age but provided for different retirement ages for different generations. Similarly, the Legal Status and Remuneration of Judges Act applied the notion of “retirement age applicable to the person in question”, depending on his or her individual circumstances. The Constitutional Court stressed that, for the sake of safeguarding the independence and irremovability of judges, the upper age-limit for judges should be fixed by a Cardinal Act in a manner that guarantees clarity and predictability and that any lowering of the age‑limit should be preceded by an appropriate transitional period. It held that releasing the judges from service with reference to the age-limits contained in the 1997 Pensions Act (which is not Cardinal Act) violated the principle of judicial independence enshrined in Article 26 (1) of the Fundamental Law (see paragraph 28 below). In the light of the conflict between the wording of the Legal Status and Remuneration of Judges Act and the Fundamental Law it further held that, pending the filling of that legislative gap, no judge could be relieved from service against his or her wishes for having attained the age-limit.
19. In pursuit of the Constitutional Court’s judgment, several applicants initiated labour proceedings, seeking reinstatement and compensation for the pecuniary damage sustained. Some applicants also sought compensation for non-pecuniary damage, but none of them maintained such claims following the entry into force of Act no. XX of 2013 (see paragraph 22 below).
20. On 6 November 2012, the Court of Justice of the European Union (“CJEU”) declared, in its judgment C-286/12, that by adopting legislation that gave rise to a difference in treatment on grounds of age which was not proportionate to the objectives pursued, Hungary had failed to fulfil its obligations under Council Directive 2000/78/EC of 27 November 2000 (see also paragraph 39 below).
21. The Government argued before the CJEU that “the competitions organised with a view to recruiting judges simultaneously with the termination of the judicial service of those who [had] reached the mandatory retirement age would not have any effect on the possibility of an eventual reinstatement of the persons concerned” (decision of the President of the CJEU of 13 July 2012 applying the expedited procedure).
22. On 11 March 2013 Parliament adopted an amendment to the impugned rules (Act no. XX of 2013, see paragraphs 31 and 33 below), also filling the legislative gap identified by the Constitutional Court (see paragraph 18 above). Under the modified scheme, the reduction of the compulsory retirement age to a unified limit of sixty-five years comes into effect as of 1 January 2023. Transitional provisions apply to the period between 2 April 2013 (the date of entry into force of the amendment) and 31 December 2022. During that period, the age-limit for compulsory retirement varies between seventy and sixty-five years according to the date of birth of the person concerned (the older a judge or public prosecutor, the longer the preparation time accorded to him or her before compulsory retirement).
23. For those judges and public prosecutors who had already been affected by the rules of compulsory retirement, the new law introduced the possibility to choose from three options.
24. Firstly, they could request a stand-by post at the court or public prosecution authority from which they had retired, meaning that they would receive the difference between their pension allowance and 80 per cent of their last basic salary. In addition, once in every three-year period, they may be ordered to perform judicial, prosecutorial or managerial tasks for a maximum of two years. Only one applicant chose that option (see the applicant referred to under no. 20 in appendix 1).
25. Secondly, such judges and public prosecutors could apply for reinstatement in their normal judicial or prosecutorial service. In that case, they would also be entitled to salary arrears for the period of their unconstitutionally ordered retirement. However, they could not be reinstated in their previous senior positions such as court president (vice-president) or head of division (deputy head of division), unless that position had not yet been filled in the meantime (compare and contrast with the Government’s submission before the CJEU, see paragraph 21 above). Twenty-eight applicants opted for that solution (see appendix 1).
26. Thirdly, those who did not request reinstatement or placement in a stand-by post became entitled to compensation in the form of a lump-sum payment of a year’s salary. Moreover, they could bring an action seeking compensation for residual pecuniary damage. Fifty-two applicants chose that option (see appendix 1); eight of them also brought proceedings seeking compensation for residual pecuniary damage.
27. On 13 May 2013 the Constitutional Court rejected a petition, submitted on 29 January 2013 of his own motion by a judge hearing a dismissed public prosecutor’s claim, against the relevant provisions of the Legal Status of Public Prosecutors Act. The Constitutional Court held that, after Act no. XX of 2013 had entered into force (see paragraph 22 above), the petition had become pointless (Constitutional Court decision no. 3108/2013).
B. Relevant domestic law and practice
1. The Fundamental Law
28. The relevant provisions of the Fundamental Law provide as follows:
Article 26
“(1) Judges shall be independent and only subordinated to laws, and may not be instructed in relation to their judicial activities. Judges may be removed from office only for the reasons and in a procedure defined by a Cardinal Act. Judges shall not be affiliated to any political party or engage in any political activity.
(2) Professional judges shall be appointed by the President of the Republic as defined by a Cardinal Act. No person under thirty years of age shall be eligible for the position of judge. With the exception of the President of the Kúria [and the President of the National Judicial Office][1], no judge may serve after reaching the general retirement age.
…”
Article 29 (3)
“… With the exception of the Attorney General, no public prosecutor may serve after reaching the general retirement age.”
2. The Transitional Provisions of the Fundamental Law
29. The Transitional Provisions of the Fundamental Law, which entered into force on 1 January 2012, provided[2], in so far as relevant:
Section 12
“(1) If a judge has reached the general retirement age defined by Article 26 (2) of the Fundamental Law before 1 January 2012, his or her service shall be terminated on 30 June 2012. If a judge reaches the general retirement age defined by Article 26 (2) of the Fundamental Law in the period between 1 January and 31 December 2012, his or her service shall be terminated on 31 December 2012.
…”
Section 13
“If a public prosecutor has reached the general retirement age defined by Article 29 (3) of the Fundamental Law before 1 January 2012, his or her service shall be terminated on 30 June 2012. If a public prosecutor reaches the general retirement age defined by Article 29 (3) of the Fundamental Law in the period between 1 January and 31 December 2012, his or her service shall be terminated on 31 December 2012.”
Section 31
“(2) … The Transitional Provisions shall form part of the Fundamental Law.”
3. The Legal Status and Remuneration of Judges Act
30. The relevant provisions of the Legal Status and Remuneration of Judges Act (Act no. CLXII of 2011), as enacted on 1 January 2012, are cited in Baka, cited above, § 52 – see also paragraph 13 above).
31. The Legal Status and Remuneration of Judges Act, as amended by Act no. XX of 2013 with effect from 2 April 2013, provides as follows:
Section 90
“A judge shall be exempted [from judicial service]:
…
(h) if the judge
(ha) has reached the general retirement age referred to in Article 26 (2) of the Fundamental Law;
(hb) voluntarily requests, before reaching the age-limit [for mandatory retirement], to be pensioned off [on the basis of being eligible to a retirement pension];
…”
Section 91
“The general retirement age referred to in Article 26 (2) of the Fundamental Law shall be the highest age-limit defined in [the 1997 Pensions Act] opening entitlement to a retirement pension, but at least 65 years of age.”
Section 135
“(1) The employer is fully liable, regardless of its degree of culpability, for any damage caused to a judge in connection with his or her service.
(2) The employer may be exempted from such liability if it succeeds in proving that the cause of the damage was unpreventable and fell outside its scope of activity …
…”
Section 145
“(1) A judge may initiate dispute proceedings in order to vindicate claims arising from his or her service. Such dispute proceedings may be initiated against the [employer’s] decision adopted in the exercise of its discretionary powers only if the employer has breached the legal rules governing the adoption of its decisions.
(2) Except as set forth in section 146, such disputes shall be heard by the Service Tribunal.
(3) If the court finds that the service of a judge had been terminated unlawfully, the judge may request his reinstatement in the judicial service and his continued service at his previous place of assignment. In the case of the unlawful termination of service of a president of the bench, he shall be reinstated in his position of bench president.
(4) In the case of the unlawful termination of service of a judge appointed to a fixed-term senior position, he shall be reinstated in that position if he so requests, provided that the position has not yet been filled. His term of office shall correspond to his initial appointment. If a judge is reinstated in his previous senior position, the outstanding senior position allowance shall be paid to him.
…
(6) In the circumstances specified in subsection (3) above, the judge shall be paid his outstanding remuneration and allowances, including the senior position allowance due for his term of office; furthermore, he shall be compensated for any damage he sustained in connection with the unlawful termination of his service. [The judge may also claim damages for pain and suffering [sérelemdíj] in respect of the interference with his personality rights caused by the unlawful termination.][3] …
(7) If, following the unlawful termination … the judge does not request his reinstatement in the judicial service …, the court shall award him, in addition to the items enumerated in subsection (6), a lump sum in compensation equalling a minimum of two months’ and a maximum of twelve months’ remuneration, taking into account all the circumstances of the case, in particular the weight of the breach and its consequences, as well as any compensation awarded from other sources.”
Section 232/C
“Section 91 of this Act, as introduced by [Act no. XX of 2013], shall be applicable from 1 January 2023. Until 31 December 2022 the age-limit referred to in Article 26 (2) of the Fundamental Law shall be interpreted as follows:
a) as regards judges born before 1 January 1945, 70 years of age;
b) as regards judges born in 1945 or 1946, the 183rd day following their 69th birthday;
c) as regards judges born in 1947 or 1948, 69 years of age;
d) as regards judges born in 1949 or 1950, the 183rd day following their 68th birthday;
e) as regards judges born in 1951, 68 years of age;
f) as regards judges born in 1952, the 183rd day following their 67th birthday;
g) as regards judges born in 1953, 67 years of age;
h) as regards judges born in 1954, the 183rd day following their 66th birthday;
i) as regards judges born in 1955, 66 years of age;
j) as regards judges born in 1956, the 183rd day following their 65th birthday;
k) as regards judges born in 1957, 65 years of age.”
Section 232/D
“…
(3) Subsections (3) to (7) of section 145 of this Act, as introduced by [Act no. XX of 2013], shall be applicable also in proceedings already pending at the time of the entry into force of [Act no. XX of 2013].
…”
Section 232/E
“If the judge did not request to be relieved from service under section 90 (hb), he may apply to the President of the National Judicial Office to be placed on a stand-by post for the period following [his becoming eligible for a retirement pension].”
Section 232/F
“The provisions of the present Act shall apply to judges placed on stand-by posts with the differences specified in sections 232/G to 232/I.”
Section 232/G
“(1) … With the exception specified in section 232/H, a judge placed on a stand-by post may not exercise judicial functions. …
…
(3) Except for the situation specified in section 232/I (2), a judge placed on a stand-by post is entitled to the difference between the amount of his pension and an amount equalling 80 per cent of his [last basic salary]. …
…”
Section 232/H
“(1) For a maximum of two years in every three years and on the basis of one of the reasons set forth in subsection (4), the President of the National Judicial Office may, of his own motion or at the request of the president of the court concerned or the judge in question, assign a judge placed on a stand-by post to perform judicial tasks at the court of his last appointment or at a court from which he can commute daily; as well as to perform administrative tasks at the National Judicial Office, provided that the judge is able to commute there on a daily basis. The consent of the judge is required for an assignment to perform administrative tasks at the National Judicial Office.”
…
(4) An assignment to perform a task specified in subsection (1) may be ordered with a view to
a) reducing an excessive backlog;
b) replacing judges who are on a long-term leave;
c) conducting court mediation activities;
d) [ensuring judicial services] during a [state of emergency];
e) taking care of central administration tasks.
…”
Section 232/I
“…
(2) A judge assigned to perform a task is entitled to payment amounting to the difference between his pension and his [last basic salary], as well as to reimbursement of his work-related costs.
(3) A judge assigned to perform a task is entitled to 20 days of [paid] leave if the duration of the work attains one year. [Otherwise,] the leave entitlement is proportionately reduced.
…”
Section 232/J
“(1) If a judge had been relieved from service pursuant to section 90 (ha), repealed by the Constitutional Court’s judgment [no. 33/2012], he shall inform the President of the National Judicial Office within 30 days, to be counted from the entry into force of [Act no. XX of 2013], whether he wishes to be reinstated in the judicial service. The 30-day time-limit is peremptory.
(2) If, in his declaration made in accordance with subsection (1), the judge requests reinstatement in the judicial service, the President of the National Judicial Office shall make the necessary arrangements, as laid down in the relevant statutory provisions, and shall ensure that the judge’s unpaid remuneration (and other allowances), including the allowance due in respect of a fixed-term appointment to a senior position, be paid to him. … If the judge opts for the scheme specified in section 232/E, he shall be entitled to the unpaid senior position allowance that would have been due until the date of reinstatement. … The judge shall be reinstated in his previous place of assignment. In the case of the unlawful termination of service of a president of the bench, he shall be reinstated in his position of bench president.
(3) If the application of section 90 (ha) … resulted in the termination of service of a judge appointed to a fixed-term senior position, and that judge requests … reinstatement in the judicial service, he shall be reinstated in that senior position if he so wishes, provided that the position from which he had been removed has not been filled in the meantime. His term of office shall correspond to his initial appointment. If a judge is reinstated in his previous senior position, payment of his outstanding senior position allowance under subsection (2) shall be paid.
(4) If the judge requests reinstatement in the judicial service, or if he had already been reinstated in the post of judge on the strength of a final judgment prior to the entry into force of [Act no. XX of 2013], section 232/E shall apply mutatis mutandis. If the judge requests reinstatement in the judicial service, his declaration under subsection (1) above shall also reflect [his wishes concerning the eventuality described in] section 232/E.
(5) Those who have been reinstated in the judicial service on the strength of a final judgment adopted in proceedings brought on account of a dismissal ordered on the basis of section 90(ha), as repealed by the Constitutional Court in its judgment [no. 33/2012], shall make a declaration, as described in section 232/E, within 30 days of the entry into force of [Act no. XX of 2012]. If the court has not yet adopted a final judgment in respect of ancillary issues, the President of the National Judicial Office shall ensure the payment of the items enumerated in subsection (2) above. If a judge has been reinstated in the judicial service by a final judgment, he may request, in a declaration to be submitted within 30 days of the entry into force of [Act no. XX of 2013], that his reinstatement be cancelled or that he be relieved from service under section 90(hb). In that case, subsection (6) shall apply mutatis mutandis, with the proviso that … damages awarded in the final judgment shall be credited against the lump-sum compensation to be granted. …
(6) If the judge does not request reinstatement … the President of the National Judicial Office shall ensure that a lump sum equalling 12 months’ remuneration be paid to him in compensation. The judge may seek compensation for residual pecuniary damage in court.
(7) [Judges] who had reached the age-limit defined in section 232/C(a) prior to the entry into force of [Act no. XX of 2013] or who will reach the same age-limit within six months of the entry into force of [Act no. XX of 2013] cannot be reinstated in the judicial service on the basis of their declaration submitted pursuant to subsection (1); [in respect of them], the President of the National Judicial Office shall ensure the payment of a lump sum in accordance with subsection (6). [They] may seek compensation for residual pecuniary damage in court.”
4. The Legal Status of Public Prosecutors Act
32. The relevant provisions of the Legal Status of Public Prosecutors Act (Act no. CLXIV of 2011 – see paragraph 13 above), as in force prior to the amendment introduced by Act no. XX of 2013, were as follows:
Section 34
“The prosecutorial service of a public prosecutor appointed by the Attorney General shall cease:
…
d) upon his reaching the pensionable age applicable to him [and qualifying him] for a retirement pension;
…”
Section 41
“(1) … In the case specified in section 34 (d) a public prosecutor shall be entitled to an amount equalling six months of his average remuneration.”
Section 160
“(1) The provisions of the present Act govern … public prosecutors reaching the pensionable age … applicable to them before 1 January 2013, subject to the differences set forth in subsections (2) and (4).
(2) If a public prosecutor has reached the pensionable age applicable to him before 1 January 2012, his service shall be terminated by release from service without severance pay …; the period of release shall be from 1 January 2012 to 30 June 2012, and his prosecutorial service shall cease as of 30 June 2012.
(3) If a public prosecutor reaches the pensionable age applicable to him between 1 January and 31 December 2012, his service shall be terminated by release from service without severance pay …; the period of release shall be from 1 July 2012 to 31 December 2012, and his prosecutorial service shall cease as of 31 December 2012.
(4) The second sentence of section 41(1) of the present Act shall apply in the circumstances specified in subsections (2) and (3) with the difference that the public prosecutor shall be entitled to an amount equalling three months of his average remuneration.”
33. The Legal Status of Public Prosecutors Act was amended by Act no. XX of 2013. The relevant amended provisions are as follows:
Section 24/A
“The general retirement age referred to in Article 29 (3) of the Fundamental Law shall be the highest age-limit defined in [the 1997 Pensions Act] opening entitlement to a retirement pension, but at least 65 years of age.”
Section 34
“The prosecutorial service of a public prosecutor appointed by the Attorney General shall cease:
…
d) upon his reaching the general retirement age referred to in Article 29 (3) of the Fundamental Law;
…”
Section 165/B
“(1) Section … 34(d) of this Act, as amended by [Act no. XX of 2013], shall be applicable from 1 January 2023. Until 31 December 2022 the provisions set forth in subsection (2) shall apply instead of section … 34(d).
(2) The term of office of the Deputy Attorney General and the prosecutorial service of public prosecutors appointed by the Attorney General shall cease when they reach the age-limit specified in section 165/C.”
Section 165/C
“Section 24/A of this Act, as introduced by [Act no. XX of 2013], shall be applicable from 1 January 2023. Until 31 December 2022 the age-limit referred to in Article 29 (3) of the Fundamental Law shall be interpreted as follows:
a) as regards public prosecutors born before 1 January 1945, 70 years of age;
b) as regards public prosecutors born in 1945 or 1946, the 183rd day following their 69th birthday;
c) as regards public prosecutors born in 1947 or 1948, 69 years of age;
d) as regards public prosecutors born in 1949 or 1950, the 183rd day following their 68th birthday;
e) as regards public prosecutors born in 1951, 68 years of age;
f) as regards public prosecutors born in 1952, the 183rd day following their 67th birthday;
g) as regards public prosecutors born in 1953, 67 years of age;
h) as regards public prosecutors born in 1954, the 183rd day following their 66th birthday;
i) as regards public prosecutors born in 1955, 66 years of age;
j) as regards public prosecutors born in 1956, the 183rd day following their 65th birthday;
k) as regards public prosecutors born in 1957, 65 years of age.”
Section 165/E
“If the public prosecutor did not request to be relieved from service [on the ground of attaining retirement age], he may, for the period following [his becoming eligible to a retirement pension], apply to the Attorney General to be placed on a stand-by post.”
Section 165/F
“The provisions of the present Act shall apply to public prosecutors placed on a stand-by post with the differences specified in sections 165/G to 165/I.”
Section 165/G
““(1) … With the exception specified in section 165/H, a public prosecutor placed on a stand-by post may not exercise prosecutorial functions. …
…
(3) Except for the situation specified in section 165/I (2), a public prosecutor placed on a stand-by post is entitled to payment amounting to the difference between his pension and 80 per cent of his [last basic salary]. …
…”
Section 165/H
“(1) For a maximum of two years in every three years and on the basis of one of the reasons set forth in subsection (4) the Attorney General may, of his own motion or at the request of the Head of the Public Prosecutor’s Office concerned or of the public prosecutor in question, assign a public prosecutor placed on a stand-by post to perform prosecutorial tasks in the field corresponding to his last appointment. The place of work shall be at the Public Prosecutor’s Office where he last served or any other Public Prosecutor’s Office from which he can commute daily.
…
(4) An assignment to perform a task specified in subsection (1) may be ordered with a view to
a) reducing a significant backlog;
b) replacing a public prosecutor who is on a long-term leave;
c) [ensuring prosecutorial services] during a [state of emergency].
…”
Section 165/I
“…
(2) A public prosecutor assigned to perform a task is entitled to payment amounting to the difference between his pension and his [last basic salary], as well as to reimbursement of his work-related costs.
(3) A public prosecutor assigned to perform a task is entitled to 20 days of [paid] leave if the duration of the work attains one year. [Otherwise,] the leave entitlement is proportionately reduced.
…”
Section 165/J
“(1) If a public prosecutor had been relieved from service either pursuant to section 160, repealed by [Act no. XX of 2013], or on account of his having reached the pensionable age between 1 January 2013 and the entry into force of [Act no. XX of 2013], he shall inform the Attorney General, within 30 days to be counted from the entry into force of [Act no. XX of 2013], whether he wishes to be reinstated in the prosecutorial service. The 30-day time-limit is peremptory.
(2) If, in his declaration made in accordance with subsection (1), the public prosecutor requests reinstatement in the prosecutorial service, the Attorney General shall make the necessary arrangements, as laid down in the relevant statutory provisions, and shall ensure that the public prosecutor’s unpaid remuneration (and allowances) … be paid …
(3) If the application of section 160, repealed by [Act no. XX of 2013], resulted in the termination of service of a public prosecutor appointed to a senior position, and that public prosecutor requests … reinstatement in the prosecutorial service, he shall be reinstated in that senior position if he so wishes, provided that the position from which he had been removed has not been filled in the meantime.
(4) If the public prosecutor requests reinstatement in the prosecutorial service … section 165/E shall apply mutatis mutandis [and] his declaration under subsection (1) shall also reflect [that eventuality].
(5) If the public prosecutor does not wish to be reinstated … the Attorney General shall ensure that a lump sum equalling 12 months’ remuneration be paid to him in compensation. The public prosecutor may seek compensation for residual pecuniary damage in court.
…”
5. Case-law of the Supreme Court/Kúria
34. In application of section 135 of the amended Legal Status and Remuneration of Judges Act (see paragraph 31 above) the Kúria (the historical appellation by which the Supreme Court was renamed in 2012, see the first sentence of point 36 of the Constitutional Court’s decision cited in Baka v. Hungary [GC], no. 20261/12, § 55, ECHR 2016) held, in a judgment of 16 April 2014, that the employer of a judge who had been removed and was subsequently reinstated as of 1 February 2013 by virtue of a final judgment (one of the seventy-three judges referred to in paragraph 4 above as having withdrawn their complaints) was liable for damage resulting from the unlawful removal. That was so even though the employer could not have exerted any influence on the termination of that judge’s service required by the stringent rules of the law. The Kúria relied on a long-standing opinion of the Supreme Court’s Labour Law Division (MK 29. számú állásfoglalás), which contains the following passages:
“a) Under article 174 of the Labour Code, the employer is liable for damage (health impairment) resulting from an employee’s accident or illness if it occurred in connection with his or her employment. … The employer bears that liability regardless of its culpability …
b) If the damage resulted from a cause falling within the employer’s scope of activity, the [employer’s] liability is retained even if the cause was unpreventable. … The cause at the origin of the damage is considered to fall outside the scope of the employer’s activity if … there is no causal connection between the originating cause and the employer’s activity.
…
In general, the scope of the employer’s activity covers the behaviour of persons carrying out tasks related to the employer’s activity, as well as causes resulting from the nature, state, moving or operation of the material, equipment, apparatus and energy used [for that activity]. …”
The Kúria was of the view that although the stringent legislation meant that the employer had been unable to prevent removal, the measure had nevertheless fallen within its scope of activity and that fact excluded the application of the exemption rule contained in section 135 of the Legal Status and Remuneration of Judges Act. Considering that a person’s work or professional activity was a manifestation of utmost importance in respect of his or her personality, the Kúria took the stance that a judge’s unlawful removal violated also his or her human dignity and personality rights, as protected by section 75 of the Civil Code. On the basis of that reasoning, the Kúria upheld the judgment under which the employer was to pay 1 million Hungarian forints (HUF) (approximately 3,300 euros (EUR)) to the judge concerned in respect of non-pecuniary damage.
35. In a judgment of 14 September 2016 the Kúria held that an action for damages brought by judges who had been removed pursuant to the unconstitutional section 90(ha) of the Legal Status and Remuneration of Judges Act and who had declared in April 2013 that they did not wish to be reinstated would be examined under section 232/J(6) of the same Act. As a special provision, section 232/J(6) prevailed over the general rule contained in section 135.
The Kúria explained that the lump-sum compensation covered both pecuniary and non-pecuniary damage, and that a claim for residual damages could be successful only if the judge managed to prove that he or she had incurred pecuniary damage that exceeded the lump sum received in compensation.
36. On 21 September 2016 the Kúria upheld a judgment adopted by the Budapest Surroundings High Court concerning an action for damages brought by a dismissed judge who had eventually been awarded a lump sum in compensation and who had claimed loss of earnings for the subsequent period not covered by that award. (The judge allegedly opted for lump-sum compensation because he could not be reinstated in his former position as head of division, that position having been filled in the meantime.) The High Court held, among other things, that the direct cause of the alleged damage was the judge’s decision not to request his reinstatement but to opt for the lump-sum compensation; there was thus nothing on the employer’s side that would constitute a causal factor in respect of the loss of earnings complained of.
C. Relevant international material
37. The Venice Commission, in its Opinion CDL-AD(2011)016 adopted on 20 June 2011, found the measures concerning the Hungarian judiciary “questionable in the light of the core principles and rules pertaining to the independence, the status and immovability of judges”. The Venice Commission stated that “this may undermine the operational capacity of the courts and affect continuity and legal security and might also open the way for undue influence on the composition of the judiciary” (paragraph 108).
38. In its Opinion CDL-AD(2012)020, adopted on 15 October 2012, that is to say, following the Constitutional Court’s judgment quashing the impugned legislation (see paragraphs 17 and 18 above), the Venice Commission found the situation of the dismissed judges unsatisfactory and urged the legislator to “adopt provisions re-instating dismissed judges who so wish in their previous position without requiring them to go through a re‑appointment procedure” (paragraph 80).
39. In its judgment C-286/12 European Commission v. Hungary adopted on 6 November 2012 (ECLI:EU:C:2012:687; see paragraph 20 above), the CJEU held, in point 1 of the operative part:
“[B]y adopting a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach the age of 62 – which gives rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued – Hungary has failed to fulfil its obligations under Articles 2 and 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.”
40. On 20 November 2013 the European Commission closed the infringement procedure launched against Hungary on 17 January 2012 in respect of the country’s legislation forcing some 274 judges and public prosecutors to take early retirement. In the relevant press release the Commission gave the following reasons:
“Following the Commission’s legal action, the Court of Justice of the EU upheld the Commission’s assessment … that the change was incompatible with EU equal treatment law … which prohibits discrimination at the workplace on grounds of age. Following calls by the Commission for Hungary to comply with the judgement as soon as possible, the country took the necessary measures and adopted changes to its law.
The Commission is now satisfied that Hungary has brought its legislation in line with EU law. A new law adopted by the Hungarian Parliament on 11 March 2013 lowers the retirement age for judges, prosecutors and notaries to 65 over a period of 10 years, rather than lowering it to 62 over one year, as before. This aligns it with the general retirement age of 65. The new law also provides for the right for all judges and prosecutors who had been forced to retire before to be reinstated in their posts, with no need to bring a case to court. Moreover, they will be compensated for remuneration lost during the period they were not working. The Commission has closely monitored the correct implementation of the new legislation in practice.”
COMPLAINTS
41. The applicants claimed that their legitimate expectation to enjoy their status and remuneration until the age of 70 had been violated in breach of Article 1 of Protocol No. 1.
42. They also complained that they had been the subject of discrimination on grounds of age, in breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1. They referred to a judgment of the CJEU (see paragraph 20 above), as well as to the regulation governing, in particular, the age-limit of Constitutional Court judges and lay assessors who could continue to serve until the age of 70. They also complained that Act no. XX of 2013 failed to treat differently persons whose circumstances were significantly different, in that it provided for a unified amount in lump-sum compensation.
43. Relying on Article 6 § 1 of the Convention, the applicants in applications nos. 45434/12 and 45438/12 further complained that their right of access to court had been violated. They asserted that, prior to the Constitutional Court’s judgment of 16 July 2012 (see paragraph 17 above), they had been unable to challenge their forced retirement in court, the measure being prescribed statutorily. Although subsequently the Constitutional Court’s judgment had opened the way for bringing individual employment claims, their right of access to court had been made obsolete by Act no. XX of 2013 (see paragraph 22 above), which had rendered any related judgments devoid of effect.
44. The applicants in applications nos. 45434/12 and 45438/12 also argued that, contrary to Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1, there had been no domestic remedies available to them in respect of the impugned measure.
THE LAW
45. The applicants complained about the introduction of legislation lowering their mandatory retirement age and forcing them to leave the judicial or prosecutorial service prematurely. They relied on Article 1 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention. The applicants in applications nos. 45434/12 and 45438/12 also relied on Articles 6 and 13 of the Convention.
46. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114-15 and 126, 20 March 2018), decided to communicate the present applications to the Government under Article 8 of the Convention (see paragraph 7 above).
The Court will thus examine the case under the above provisions in turn.
A. Joinder of the applications
47. The three applications in the present case (nos. 45434/12, 45438/12 and 375/13) raise similar issues. The Court therefore decides to order their joinder pursuant to Rule 42 § 1 of the Rules of Court.
B. Issues of standing
48. The Court takes note of the death of Mr L. Erményi, Ms A. R. Kántor and Ms R. Szabóné Farkas, on 6 January 2015, 25 September 2015 and 3 May 2016, respectively, and of the wish expressed by their heirs (Ms Éva Koczka, Ms Kinga Erményi, Mr Csaba Erményi, Mr András Richárd Kántor, Ms Nóra Jebens-Szabó and Mr Elek Szabó, respectively – see also appendix 1) to continue the application before the Court in their stead (see paragraph 5 above). The Court finds that the heirs have standing to continue the application in the applicants’ stead (see, for instance, Erményi v. Hungary, no. 22254/14, § 17, 22 November 2016, and the authorities cited therein).
C. Striking out of the applications in respect of withdrawn complaints
49. The Court also takes note of the declarations by which seventy-three applicants in applications nos. 45434/12 and 45438/12 withdrew their complaints (see paragraph 4 above and the list set out in appendix 2).
50. The Court considers that, in so far as the applications concern the above-mentioned applicants, they should be struck out of its list of cases under Article 37 § 1 (a) of the Convention, no public policy reason requiring the continued examination of their complaints for the purposes of Article 37 § 1 in fine.
D. The Government’s objection of incompatibility ratione personae with the provisions of the Convention
1. The parties’ submissions
51. The Government raised the objection that the applicants who had not been relieved from service, including those who had retired in order to avoid their removal and who had chosen to receive lump-sum compensation, could not claim to be victims of a violation of the Convention. They submitted in particular that the lowest amount paid as lump-sum compensation to an applicant was HUF 7,518,720 (approximately EUR 25,000).
52. The two applicants who had eventually not been relieved from judicial service (see paragraph 16 above) did not comment on the Government’s preliminary objection.
53. The applicants who had themselves requested retirement, allegedly in order to avoid being pensioned off in a humiliating fashion (see paragraph 15 above), argued that they had been members of a category of people who had risked being directly affected by the legislation and they had modified their conduct on account of their impending premature dismissal. On that basis, they considered themselves victims of the measures introduced by the respondent State.
54. Those applicants who had received lump-sum compensation argued that it had not constituted a proper restitutio in integrum, for two reasons. First, many of them could not be reinstated in their original positions despite the Government’s claim made before the CJEU (see paragraph 21 above); that was why they had eventually decided not to request reinstatement at all and had accepted the lump-sum compensation. Secondly, the lump-sum compensation had not covered their unpaid remuneration which would have been due until the age of seventy.
55. The applicants further contended that the benefit in question had not been designed to cover non-pecuniary damage and indeed it had not provided a remedy for such damage. In this connection, they relied on section 145 of the Legal Status and Remuneration of Judges Act (a generally applicable provision underlying the lex specialis of section 232/J (6) applying only to judges dismissed unconstitutionally in 2012; see paragraph 31 above). Under that Act a judge who was unlawfully dismissed but later reinstated was entitled, as a general rule, to his unpaid remuneration and benefits, as well as to compensation for any damage resulting from his dismissal. In addition, as a separate item, he could also claim compensation for non-pecuniary damage. If the judge was not reinstated in the judicial service, an additional lump sum was paid in compensation equalling a minimum of two months’ and a maximum of twelve months’ remuneration, depending on the particular circumstances of the case. Furthermore, those who had been reinstated following dismissal in 2012 had not received any lump-sum compensation, notwithstanding the obvious presence of non-pecuniary damage.
From those legal provisions and circumstances, the applicants deduced that the lump-sum compensation was genuinely different from, and did not provide, compensation for non-pecuniary damage.
2. The Court’s assessment
(a) General principles
56. The Court reiterates that, in order to be able to lodge an application in pursuance of Article 34 of the Convention a person must be able to claim to be a “victim” of a violation of the rights enshrined in the Convention: to claim to be a victim of a violation, a person must be directly affected by the impugned measure. The Convention does not envisage the bringing of an actio popularis for the interpretation of the rights set out therein, or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention. It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, and therefore to claim to be a “victim” within the meaning of Article 34 of the Convention, if he is required to either modify his conduct or risk being prosecuted, or if he is a member of a class of people who risk being directly affected by the legislation (see Michaud v. France, no. 12323/11, § 51, ECHR 2012).
57. The question whether an applicant has victim status is relevant at all stages of the proceedings under the Convention (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 (extracts)) and falls to be determined at the time of the Court’s examination of the case where such an approach is justified in the circumstances. In assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see Tănase v. Moldova [GC], no. 7/08, §§ 105-06, ECHR 2010).
58. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). Therefore it falls, firstly, to the national authorities to redress any alleged violation of the Convention. A decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. As to the redress which is “appropriate” and “sufficient” in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see,mutatis mutandis and with further references, Kurić, cited above,§§ 259-60).
59. In connection with the second condition, notably the redress for the breach acknowledged, the Court has already had occasion to indicate in the context of different Convention Articles that an applicant’s “victim” status may also depend on the level of compensation awarded at domestic level, where appropriate, or at least on the possibility of seeking and obtaining compensation for the damage sustained, having regard to the facts about which he or she complains before the Court (see Kurić, cited above, § 262).
60. Where a State has taken a significant step by introducing a compensatory remedy, the Court must leave a wider margin of appreciation to the State to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 80, ECHR 2006‑V;Domján v. Hungary (dec.), no. 5433/17, § 27, 14 November 2017; and, in the context of a case raising an issue under Article 8, Anastasov and Others v. Slovenia (dec.), no. 65020/13, § 71, 18 October 2016).
61. Furthermore, in a number of cases (involving the deportation or extradition of non-nationals and raising an issue under Article 8 of the Convention) the Court has held that an applicant could not claim to be the “victim” of a measure if it was not enforceable or was no longer in force (see, for instance, Vijayanathan and Pusparajah v. France, 27 August 1992, § 46, Series A no. 241‑B; Pančenko v. Latvia (dec.), no. 40772/98, 28 October 1999; Mikheyeva v. Latvia (dec.), no. 50029/99, 12 September 2002; Pellumbi v. France (dec.), no. 65730/01, 18 January 2005; Etanji v. France (dec.), no. 60411/00, 1 March 2005; and Fjodorova and Others v. Latvia (dec.), no. 69405/01, 6 April 2006).
62. In cases where the respondent State provided adequate redress to the applicant, who has accordingly lost his victim status, the Court has repeatedly ruled the applications inadmissible or struck them out of the list (see, mutatis mutandis and with further authorities, Tănase, cited above, § 106).
63. In this connection, the Court also emphasises that, depending on the events that have occurred subsequent to the lodging of an application, it may strike a case out of its list on one or more of the grounds set out in Article 37 of the Convention, notwithstanding the fact that the applicant can still claim “victim” status (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 39, 24 October 2002), or even irrespective of the question whether the applicant can still claim such status (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 96, ECHR 2007-I; Association SOS Attentats and de Boëry v. France (dec.) [GC], no. 76642/01, § 41, ECHR 2006-XIV; Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 47, 7 December 2007; and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 29, 20 December 2007).
64. Under Article 37 § 1 (b) of the Convention, the Court may “… at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that … the matter has been resolved …”. In order to ascertain whether that provision applies to a case, the Court must answer two questions in turn: first, whether the circumstances complained of directly by the applicants still obtain and, second, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see El Majjaoui and Stichting Touba Moskee, cited above, § 30).
65. As regards the second question, in a number of cases the Court has held that the regularisation of an applicant’s situation or the fact that the applicant was no longer under the threat of being affected by the measure in question – even if the case was still pending before the Court – was “sufficient” in principle to remedy a complaint (see, in the context of deportation or extradition of non-nationals raising an issue under Article 8, Yang Chun Jin alias Yang Xiaolin v. Hungary (striking out), no. 58073/00, §§ 20-23, 8 March 2001; Sisojeva, cited above, §§ 102-04; and Kaftailova, cited above, §§ 53-54; as well as, in the context of a refusal to allow an applicant to work, raising an issue under Article 9, El Majjaoui and Stichting Touba Moskee, cited above, § 33). The fact that an applicant had experienced a lengthy period of insecurity and legal uncertainty was not considered by the Court as a circumstance preventing it, as such, from finding a remedy “adequate”, even in the absence of any further compensation (see Kaftailova, cited above, § 53).
(b) Application of those principles to the present case
(i) Judges who eventually were not relieved from service
66. As regards the two applicants referred to in paragraph 16 above (Ms E.M.S. and Mr Mátyás Mészáros), the Court accepts that they were affected by the impugned legislation in so far as their mandatory retirement, albeit at a future date, was effectively envisaged during the period between April 2011 (when the Fundamental Law was adopted – see paragraph 13 above) and July 2012 (when the Constitutional Court repealed the legislation – see paragraph 17 above). As a consequence, in June 2012, when they lodged their applications with the Court, they were arguably members of a class of people who risked being directly affected by the legislation which had entered into force in their regard as well (see Michaud, cited above, § 51).
67. The Court considers that following the Constitutional Court’s judgment of 16 July 2012, the above-mentioned direct risk ceased to exist. It is true that the constitutional-level provision ordering mandatory retirement at the “general retirement age” remained in force even after 16 July 2012 and that the comprehensive settlement of the legal situation was only brought about by Act no. XX of 2013 as of 2 April 2013. However, pending the introduction of the 2013 Act, which set out the new rules concerning the compulsory retirement age as required by the Constitutional Court, judges no longer faced the risk of mandatory retirement on account of their age, as the Constitutional Court had explicitly prohibited that (see paragraph 18 in fine above).
68. The Court is of the view that the line of case-law mentioned in paragraphs 61 to 65 above may be applied, mutatis mutandis, in the present case where the legislative measures complained of by the two applicants referred to in paragraphs 16 and 66 above eventually ceased to exist without having been actually applied to them. The applicants in question were not removed and are no longer under the threat of such a measure. The Court further notes that they did not contest the Government’s preliminary objection as to their lack of victim status (see paragraph 52 above).
69. Having regard to the above elements, the Court does not consider it necessary to reach a conclusion on the question whether the applicants in question can claim to be “victims” within the meaning of Article 34 of the Convention. It finds that both conditions for the application of Article 37 § 1 (b) of the Convention have been met: notably, the circumstances complained of no longer exist and the effects of a possible violation of the Convention on account of those circumstances have been redressed. The matter giving rise to the complaints of the applicants in question can therefore be considered to have been “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue the examination of the complaints at issue under Article 37 § 1 in fine.
70. Accordingly, the application should be struck out of the Court’s list of cases in so far as it concerns the applicants mentioned in paragraphs 16 and 66 above (Ms E.M.S. and Mr Mátyás Mészáros).
(ii) Judges who retired on their own initiative
71. As regards the four applicants referred to in paragraph 15 above (Mr Sándor Kardos, Ms Mária Kiss, Ms Éva Anna Faragó and Ms Klára Czene), who applied for retirement on their own initiative, the Court notes that the requests of two of them (Mr Sándor Kardos and Ms Mária Kiss) had already been granted prior to the entry into force of the impugned legislation as of 1 January 2012, whereas the other two (Ms Éva Anna Faragó and Ms Klára Czene) were relieved from service after the Constitutional Court’s judgment of 16 July 2012 but prior to the adoption of Act no. XX of 2013 on 11 March 2013.
72. Those applicants argued that they had faced an immediate risk of being directly affected by the new legislation on judges’ compulsory retirement and had decided to retire solely with the aim of forestalling their impending humiliating dismissal.
73. The Court further notes that the Constitutional Court’s judgment of 16 July 2012 did not affect those applicants’ situation because their retirement had been based on their own decision rather than on the impugned legislation. The applicants argued that they had been unable to request any kind of compensation under the amended legislation for the alleged interference.
74. For the Court, the situation of the applicants at issue is partly similar to those referred to in paragraphs 16 and 66 to 70 above, to whom the impugned legislation had not been actually applied. However, an important difference lies in the fact that the applicants at issue here were eventually relieved from judicial service, albeit formally on the basis of their own decision.
75. The above-mentioned additional factual element, notably the applicants’ release from service following their own application for retirement, prompts the question whether or not that outcome is in some way imputable to the respondent State; in other words, whether or not the State’s responsibility may be engaged under the Convention as a result of the applicants’ own decision.
76. The Court notes that the case of Paunović and Milivojević v. Serbia (no. 41683/06, 24 May 2016) raised a somewhat similar question in so far as one of the applicants in that case, a member of parliament, was deprived of his mandate on the basis of his own letter of resignation, which he had deposited with his party group signed but undated, and which the party later dated and submitted to Parliament. In that case, the Court rejected the respondent Government’s preliminary objection of incompatibility ratione personae with the Convention, considering that it had been the State that had deprived Mr Paunović of his mandate by accepting his letter of resignation (see §§ 44-45 of the judgment).
77. However, the present case is to be distinguished from Paunović and Milivojević for several reasons. In that case the applicant declared his deposited resignation letter to be null and void. He also confirmed in person before the Parliamentary Committee on Administrative Affairs that he did not intend to resign. He was thus deprived of his mandate against his genuine will, in spite of all his declarations about the revocation and invalidity of his resignation letter, and in breach of the relevant domestic law (see § 65 of the judgment). By contrast, in the present case the applicants referred to in paragraph 15 above did not contest that their resignation had corresponded, at least at the time it had been tendered, to their genuine wishes which they had formulated having taken all the circumstances and various possible scenarios into consideration. Nor did the State play an active and unlawful role in bringing about the applicants’ retirement against their will.
78. In such circumstances, the Court is of the view that the State’s responsibility cannot be engaged and that the applicants mentioned in paragraph 15 above (MrSándor Kardos, Ms Mária Kiss, Ms Éva Anna Faragó and Ms Klára Czene) have not been directly affected by the legislation complained of. Their application is therefore to be rejected as incompatible ratione personae with the provisions of the Convention, in accordance with Article 35 §§ 3 (a) and 4 of the latter.
(iii) Judges and prosecutors who opted for the lump-sum compensation
79. As regards the fifty-two applicants – judges and public prosecutors – who were actually forced to retire on the basis of the impugned legislation and later did not request reinstatement but opted for a lump sum in compensation, the question to be examined by the Court is whether or not that compensation deprived the applicants of their status as “victims” within the meaning of the Convention.
80. The Court considers that the first condition for the loss of victim status, notably the acknowledgment, in substance, of a violation by the national authorities (see the case-law quoted in paragraph 58 above), has been fulfilled. Indeed, the Constitutional Court found the impugned legislation unconstitutional by reason, inter alia, of its lack of clarity and predictability, and repealed it (see paragraphs 17 and 18 above).
81. The Court notes that following the judgments of the Constitutional Court and the CJEU (see paragraphs 17 and 20 above), the lawmaker created a scheme with different options in order to provide a remedy for those concerned by the repealed legislation (see paragraphs 22 to 26 above). In the framework of that scheme, the applicants could opt for compensation consisting of a lump sum equalling a year’s salary, free of any taxes. In parallel, they could also bring an action seeking compensation for residual pecuniary damage (see paragraph 26 above).
82. According to the Government’s submission, which was not contested by the fifty-two applicants concerned, the lowest amount actually paid as lump-sum compensation was HUF 7,518,720, approximately EUR 25,000 (see paragraph 51 above). The Court observes that even that amount largely exceeded the amount awarded in just satisfaction of EUR 5,000 per applicant in the case of Kulykov and Others v. Ukraine (nos. 5114/09 and17 others, 19 January 2017) in respect of non-pecuniary damage resulting from the applicants’ dismissal from their posts of judge in breach of Articles 6 and 8 of the Convention.
83. However, the applicants who had received lump-sum compensation argued, for multiple reasons, that that benefit did not constitute an “appropriate” and “sufficient” remedy (see paragraphs 54 and 55 above).
84. The Court reiterates, first, that its case-law allows a relatively wide margin of appreciation to the State in connection with the introduction of a compensatory remedy at domestic level (see the authorities quoted in paragraph 60 above). Secondly, it notes the Kúria’s position, which was that the lump-sum compensation at issue covered both pecuniary and non-pecuniary damage (see paragraph 35 above).
85. Taking also into account the fact that the applicants in question were free to choose from the options provided under the redress scheme (see paragraphs 24 to 26 above), the Court considers that the lump-sum compensation of which they availed themselves was adequate and sufficient in the circumstances of the present case to remedy their grievances. They can thus no longer claim to be “victims”, within the meaning of Article 34 of the Convention, of the impugned legislation.
86. Accordingly, in so far as it concerns the fifty-two applicants mentioned in paragraph 26 above and listed in appendix 1 as having opted for a lump-sum compensation, the application should be rejected as incompatible ratione personae with the provisions of the Convention in accordance with Article 35 §§ 3 (a) and 4 of the latter.
E. The Government’s objection of non-exhaustion of domestic remedies
87. The Government argued that, as well as the employment-law actions brought by a number of applicants, which became redundant with the entry into force of Act no. XX of 2013 (see paragraph 22 above), the applicants could also have brought actions for damages against their employer on the basis of section 135 of the Legal Status and Remuneration of Judges Act (see paragraphs 31 and 34 above). However, they had failed to avail themselves of that available and effective remedy.
88. The applicants argued that the legal situation had been completely unprecedented in 2012 when they had lodged their applications and that at that time, there had been no domestic case-law suggesting the potential effectiveness of an action for damages as referred to by the Government. They contended that, according to the well-established practice of the Hungarian courts, the damage potentially resulting from the entry into force of a law laying down a general rule of normative force was not considered to create a relationship of civil-law liability between the lawmaker and the alleged victim of the legislation. Against that background, they considered the Kúria’s judgment of 16 April 2014 (see paragraph 34 above) to have been unforeseeable and isolated, and argued that no sufficiently consolidated remedy had been available in the national legal order at the material time.
89. The Court considers that it is not necessary to examine the Government’s objection of non-exhaustion of domestic remedies because the applications in question are in any event inadmissible for the reasons set out below.
F. Other grounds for inadmissibility
1. Complaint under Article 6 § 1 of the Convention
90. The remaining twenty-nine applicants (see paragraphs 24 and 25 above) complained that their right of access to a court had been infringed, in particular by Act no. XX of 2013, which had made obsolete the court proceedings they had brought with a view to obtaining full reinstatement and compensation (see paragraph 43 above).
They invoked Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal.”
91. The Court has already had occasion to rule on allegations of intervention by the State, through the legislature, in order to influence the outcome of a court case. It reiterates that while in principle the legislature is not precluded from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute, save on compelling grounds of the general interest. Any reasons adduced to justify such measures should be treated with the greatest possible degree of circumspection (see, with further authorities, Bárdi and Vidovics v. Hungary (dec.), nos. 27514/15 and 13876/16, §§ 26-27, 19 December 2017).
92. The Court notes at the outset that by adopting Act no. XX of 2013 the legislature reacted to the judgments of the Constitutional Court (see paragraphs17 and 18 above) and the CJEU (see paragraphs 20 and 39 above), and acted in line with the recommendations of the Venice Commission (see paragraph 38 above). Given the obvious rationale behind introducing that law, notably to settle, in the most efficient and prompt manner possible, a situation that was critical in that it affected the delicate balance within the system of separation of powers, the Court considers that the interference was based on compelling grounds of the general interest. The Court further observes that, from the perspective of European Union law, the European Commission was satisfied with the adoption and implementation of the law at issue (see paragraph 40 above).
93. Moreover, the present case is different from cases in which the Court has found a violation on account of a legislative interference with the outcome of a court case.
94. As it appears from section 232/J(4) and (5) of the Legal Status and Remuneration of Judges Act (as amended by Act no. XX of 2013, see paragraph 31 above), the entry into force of Act no. XX of 2013 did not affect final judgments; it only obliged judges who had already been reinstated to declare their position concerning the option provided for in section 232/E of the same Act.
95. As regards the applicants whose proceedings were still pending by the time the amendments brought about by Act no. XX of 2013 entered into force, they had to declare within thirty days, pursuant to section 232/J(1) of the Legal Status and Remuneration of Judges Act, whether or not they wished to be reinstated. The Court considers in that respect that the legislative provision in question pre-empted the pending judicial proceedings, at least formally. However, it did not endorse the State’s position to the applicants’ detriment; indeed, it allowed the applicants the freedom to choose whether to request reinstatement. As such, it did not influence the outcome of the litigation in substance, but only ensured a prompt termination of any legal dispute in accordance with the applicants’ wish. The Court reiterates at this juncture that all of the twenty-nine applicants in question (see paragraph 90 above) were reinstated either in their normal judicial service or in a stand-by post and they obtained their unpaid remuneration.
96. Nor does the amendment appear to have affected pending proceedings in so far as they concerned claims for damages in respect of unlawful termination of service. Section 232/J provides for certain limitations on claims for residual damages lodged by judges who opted for the lump-sum compensation (see subsections (6) and (7) of that provision, quoted in paragraph 31 above). By contrast, section 232/D(3) expressly provides for the application of section 145(3) to (7) of the same Act to proceedings still pending at the time of the amendment’s entry into force. The Court observes that the last-mentioned provisions, in particular section 145(6), stipulate that in addition to compensation for unpaid remuneration, unlawfully dismissed but reinstated judges are also to be recompensed for the damage they have sustained. Therefore, the interference by the legislature does not appear to have affected the adjudication of such ancillary claims, in particular claims for damages on account of unlawful termination of judicial service.
97. In such circumstances, notably given that the interference did not influence in substance the outcome of the claims brought by the applicants and that it was based on compelling grounds of the general interest, the Court considers that the complaint under Article 6 § 1 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.
2. Complaint under Article 1 of Protocol No. 1
98. The remaining twenty-nine applicants (see paragraphs 24 and 25 above) further complained that their legitimate expectation to enjoy their status and remuneration as judges until the age of seventy had been violated, in breach of Article 1 of Protocol No. 1 (see paragraph 41 above).
That provision reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
99. The Court reiterates that Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property (see Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011). Future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable (see Denisov v. Ukraine [GC], no. 76639/11, § 137, 25 September 2018, with further references).
100. The Court reiterates that the applicants were reinstated either in their normal judicial service or in a stand-by post, obtained their salary arrears and are entitled to receive their statutory remuneration as long as they remain in the judicial service – at the latest until reaching their mandatory retirement age. In that respect, it finds that there has been no interference with their “possessions”.
101. As regards the income those applicants expected to earn in the years exceeding their mandatory retirement age (as amended following the judgments of the Constitutional Court and the CJEU, see paragraph 22 above), the Court is of the view that it has neither been actually earned, nor has it become definitely payable (see Denisov, cited above, § 137; and the Chamber judgment declaring inadmissible a similar complaint under Article 1 of Protocol No. 1 in Baka v. Hungary, no. 20261/12, § 105, 27 May 2014). They cannot therefore argue that the expected income at issue constituted a “possession” within the meaning of Article 1 of Protocol No. 1.
102. Furthermore, as far as the applicant mentioned in paragraph 24 is concerned, the Court observes that she requested of her own free will a stand-by post at the court from which she had retired, and thus now receives the difference between her pension allowance and 80 per cent of her last basic salary. Under those circumstances, and given the choice freely expressed by that applicant (referred to under no. 20 in appendix 1), the Court considers that, in any event, she could not claim to be a victim of an alleged violation of her right to the peaceful enjoyment of possessions with regard to her expectation to enjoy her full remuneration.
103. In these circumstances, this complaint is incompatible either ratione materiae or ratione personae with the provisions of the Convention and the Protocols thereto and must be rejected in accordance with Article 35 §§ 3 (a) and 4.
3. Complaint under Article 13 of the Convention
104. Relying on Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1, the remaining twenty-nine applicants (see paragraphs 24 and 25 above) also complained that there had been no domestic remedies available to them in respect of the impugned measures (see paragraph 44 above).
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
105. The Court reiterates that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).
106. The Court notes that it has found inadmissible the applicants’ complaint under Article 1 of Protocol No. 1 (see paragraph 103 above). Accordingly, the applicants did not have an “arguable claim” of a violation of Article 1 of Protocol No. 1 and, therefore, Article 13 of the Convention is not applicable.
107. It follows that the complaint under Article 13 of the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 thereof.
4. Complaint under Article 14 of the Convention
108. The remaining twenty-nine applicants (see paragraphs 24 and 25 above) contended that they had been the subject of discrimination on grounds of age, in breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 (see paragraph 42 above).
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
109. Article 14 only complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to that extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Sommerfeld v. Germany [GC],no. 31871/96, § 84, ECHR 2003‑VIII (extracts), and Jantner v. Slovakia,no. 39050/97, § 40, 4 March 2003).
110. As the Court has already held that the applicants’ complaints are incompatible either ratione materiae or ratione personae with the provisions of Article 1 of Protocol No. 1 (see paragraph 103 above), Article 14 cannot apply either.
111. It follows that the complaint under Article 14, taken in conjunction with Article 1 of Protocol No. 1 to the Convention, is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
5. Complaint under Article 8 of the Convention
112. The Court has found it necessary to examine the applications also under Article 8 of the Convention (see paragraphs 7 and 46 above), which, in so far as relevant, provides:
“1. Everyone has the right to respect for his private … life … .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
(a) The parties’ submissions
(i) The remaining applicants
113. In connection with Article 8 of the Convention, the remaining twenty-nine applicants (see paragraphs 24 and 25 above) argued that the lowering of their mandatory retirement age and their resulting dismissal from the judicial service had constituted an interference with their private life, as it had adversely affected a wide range of their relationships with other persons, including relationships of a professional nature. They also contended that the loss of their jobs had prejudiced their material well-being and that of their families. Furthermore, they submitted that the impugned measure had damaged their honour and reputation, the protection of which should also be guaranteed by their right to respect for private life. The applicants also stressed that the interference with their private life had constituted, at the same time, a serious attack against the independence of the Hungarian judiciary as a whole.
114. In the applicants’ view the interference had not been lawful under either domestic or EU law; they referred to the judgments of the Constitutional Court and the CJEU in that respect (see paragraphs 17 and 20 above). They further argued that, in any event, the interference had not been compatible with the requirements of “quality of law” as it had not been sufficiently foreseeable and had failed to afford adequate legal protection against arbitrariness.
115. The applicants further submitted that the interference had not pursued any legitimate aim. When the legislation had been introduced, the lawmaker had not put forward any argument that could have sufficiently justified such abrupt and drastic measures. As regards subsequent justifications advanced by the Government, the applicants were of the view that they had been only attempts to disguise the real intention behind the measures, notably to dismiss those judges who had begun their careers under the socialist regime – an aim that was far from legitimate under Article 8 § 2 of the Convention.
116. Lastly, the applicants also asserted that the interference had not been “necessary in a democratic society”: it had not corresponded to a pressing social need and, even assuming that the aim pursued by the measures was legitimate, it had not been proportionate. They reiterated, among other arguments, that the Government had failed to provide full compensation for the interference with the applicants’ careers. They also emphasised that many of them could not be reinstated in their original senior positions, notwithstanding the Government’s claim concerning the allegedly unhampered possibility of full reinstatement in the event that the dismissals were found to have been unlawful (see paragraph 21 above).
(ii) The Government
117. The Government acknowledged that the impugned measures had constituted an interference with the remaining twenty-nine applicants’ right to respect for private life, guaranteed by Article 8 of the Convention.
118. However, they argued that the measures had been prescribed by law (namely by the Legal Status and Remuneration of Judges Act and its amendment) and had been necessary, as they formed part of a series of measures aimed at eliminating anomalies in the Hungarian pension system with a view to ensuring that public servants received a social security pension under unified and fair standards. They contended that, under the scheme introduced by Act no. XX of 2013 (see paragraphs 22 to 26 above), judges’ retirement age was being lowered gradually and sufficient preparation time was being allowed for them, in compliance with the requirement of foreseeability and predictability.
119. The Government submitted that legal practitioners could not be regarded as constituting a homogeneous group – a position endorsed in the Constitutional Court’s practice. Therefore, the fact that the lawmaker had regulated the mandatory retirement age of certain professions differently from others could not amount to unlawful discrimination.
120. As regards the proportionality of the interference, the Government pointed out that Act no. XX of 2013 intended to provide full and generous reparation for any disadvantage that may have been caused by the measures introduced as of 1 January 2012, and that it sought to secure respect for judges’ freedom of choice.
121. Moreover, the applicants who, prior to the termination of their service in 2012, had been appointed to a senior position in a permanent manner (such as president of the bench) had all been reinstated in that position and had been compensated also for their unpaid senior position allowances. The impossibility of reinstatement in a senior position, due to the fact that the position had been filled in the meantime, could arise only in the case of applicants who had been previously appointed for a fixed term (such as court presidents and vice-presidents, head of divisions and so on). However, even if they could not be reinstated, they had been paid the senior position allowances that would have been due to them until the expiry of their term of office.
122. Accordingly, the Government were of the view that, although Article 8 of the Convention was applicable, it had not been violated.
(b) The Court’s assessment
(i) Preliminary remarks
123. The Court notes that the Government did not contest the applicability of Article 8 of the Convention to the facts of the present case (see paragraphs 117 and 122 above). At the same time, it reiterates that the scope of the Court’s jurisdiction is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case. Consequently, the mere absence of a plea of incompatibility cannot extend that jurisdiction. To hold the contrary would mean that where a respondent State waived its right to plead or omitted to plead incompatibility, the Court would have to rule on the merits of a complaint against that State concerning a right not guaranteed by the Convention. Accordingly, the Court has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction at every stage of the proceedings even where no objection has been raised in this respect (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 201, ECHR 2014 (extracts)).
124. The Court recently revisited its case-law concerning the scope of Article 8 of the Convention in employment-related disputes between an individual and a State (see Denisov, cited above). The Court considers that, even though the applicant in the Denisov case was removed from his position of president of a court of appeal without being dismissed as a judge, the general principles laid down in that case concerning the applicability of Article 8 of the Convention and the way in which that issue was examined are applicable to the present case.
125. In Denisov (cited above)the Court held that in the assessment of whether or not a private-life issue under Article 8 of the Conventionwas raised in a case concerning an employment-related dispute between an individual and a State, there was a strong tie between the questions of applicability and the merits. Once a measure has been found to have seriously affected an applicant’s private life, his or her complaint in that respect is considered compatible ratione materiae with the Convention. At the same time, the measure is considered to have constituted an “interference” with the “right to respect for private life” for the purpose of the three-limb merits test under Article 8 (assessment of the lawfulness, the legitimate aim and the necessity of such “interference”). Therefore, the questions of applicability and the existence of “interference” are inextricably linked in those categories of complaints. Resolving certain inconsistencies in the case-law, the Court held that as the question of applicability was an issue of its jurisdiction ratione materiae, the relevant analysis should be carried out at the admissibility stage unless there was a particular reason to join this question to the merits (see Denisov, cited above, §§ 92-93).
126. The Court finds that there is no particular reason in the present case to join the question of the applicability of Article 8 to the merits; it thus falls to be examined at the admissibility stage. The Court further notes, at this juncture, that its reasoning and conclusions in respect of the three categories of judges discussed in paragraphs 66 to 86 above are without prejudice to the applicability of Article 8 to their complaints.
(ii) General principles
127. In Denisov, the Court confirmed that employment-related disputes were not per se excluded from the scope of “private life” within the meaning of Article 8 of the Convention. There are some typical aspects of private life which may be affected in such disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures. These aspects include (i) the applicant’s “inner circle”, (ii) the applicant’s opportunity to establish and develop relationships with others, and (iii) the applicant’s social and professional reputation. There are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measure (in that event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employs the consequence-based approach – see Denisov, cited above, § 115).
128. If the consequence-based approach is at stake, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. It is for the applicant to show convincingly that the threshold was attained in his or her case. The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree (see Denisov, cited above, § 116).
129. The Court has established criteria for assessing the severity or seriousness of alleged violations in different regulatory contexts. An applicant’s suffering is to be assessed by comparing his or her life before and after the measure in question. The Court further considers that in determining the seriousness of the consequences in employment-related cases, it is appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particular case. This analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remains for the applicant to define and substantiate the nature and extent of his or her suffering, which should have a causal connection with the impugned measure. Having regard to the rule of exhaustion of domestic remedies, the essential elements of such allegations must be sufficiently raised before the domestic authorities dealing with the matter (see Denisov, cited above, § 117).
(iii) Application of the general principles to the present case
130. As regards the applicability of Article 8 of the Convention, the Court is first required to examine the way in which a private-life issue could arise in the present case: whether such an issue arises because of the underlying reasons for the applicants’ dismissal or because of the consequences for their private life.
131. The direct reason behind the applicants’ dismissal was that they had reached the lowered mandatory retirement age applicable to them. Although a person’s age is obviously an aspect of his or her physical identity, it is at the same time an objective fact not capable of being influenced by freedom of choice in the sphere of private life. No other factors relating to the applicants’ private life, in particular no factors connected directly to their conduct, were contemplated as qualifying criteria for being affected by the impugned measures. In such circumstances, the Court considers it appropriate to follow a consequence-based approach and to examine whether the impugned measures had sufficiently serious negative consequences for the applicants’ private life, in particular as regards their “inner circle”, their opportunities to establish and develop relationships with others and their reputation.
132. The applicants contended, in general, that their dismissal had resulted in a sudden and very significant reduction in their income. Allegedly, due to the significant difference between the amount of their monthly retirement pension and their former remuneration, they had lost, over a time span of a few months, two-thirds to three-quarters of their monthly earnings. That situation had seriously threatened the material well-being of some applicants and their families. However, as regards the twenty-nine applicants at issue here, the Court was not provided with any individualised information or detail, let alone any evidence, about the above-mentioned financial difficulties – which, moreover, proved to be temporary ones as the applicants were subsequently able to obtain their unpaid remuneration. Two applicants (É.Á. and I.S.K., both in application no. 45434/12) further complained that their dismissal had caused them health problems and emotional distress. They omitted, however, to provide details on those issues. In such circumstances, the Court cannot but note the absence of any evidence suggesting that the “inner circle” of the aforementioned twenty-nine applicants’ private life was seriously affected by the impugned measures.
133. As to establishing and maintaining relationships with others, the Court notes that the twenty-nine applicants at issue were all reinstated either in their previous judicial post or in a stand-by post. Even if their situation among colleagues was affected by their dismissal and subsequent reinstatement, there are no factual grounds, let alone evidence put forward by the applicants, that would indicate that such effects were so substantial as to constitute an interference with the applicants’ rights guaranteed by Article 8 of the Convention.
134. It remains to be examined whether or not the impugned measures encroached upon the applicants’ reputation in such a way that it seriously affected their esteem among others, with the result that it has had a serious impact on their interaction with society.
135. The applicants complained that some people, including, allegedly, the pro-Government press and public figures, had welcomed the advent of a long-awaited “real change of regime” in the judiciary that would remove “judges of the [pre-1990] dictatorship” and had called into question the judicial competence and professionalism of the judiciary’s oldest generation. The applicants argued that those remarks had undermined their professional reputation. Some of them, who prior to their dismissal had been Bar exam assessors or had held fixed-term senior positions within the judiciary and who were not reinstated in those particular positions (they only received their unpaid remuneration for the whole term), contended that their non-reinstatement had had an adverse effect on their career and reputation.
136. The Court notes that there is no evidence of any individualised negative remarks made by the domestic authorities as regards the applicants’ professional performance or their personality, moral values or character. It further observes that the applicants did not substantiate how criticisms towards their generation in general had affected the core of their individual reputation or had caused them serious prejudice in their professional or social environment. As regards certain applicants’ non‑reinstatement in fixed-term senior positions within the judiciary or in other prestigious positions, the Court is of the view that, in objective terms, the judicial function constituted the applicants’ fundamental professional role and their other positions, however important and prestigious they might have been and however they might have been subjectively perceived and valued by the applicants, did not relate to the principal sphere of their professional activity (see Denisov, cited above, § 125). The twenty-nine applicants at issue did not put forward any other specific personal circumstances indicating that the measure had had a serious impact on their private life.
137. Accordingly, measuring the applicants’ subjective perceptions against the objective background and assessing the material and non-material impact of their dismissal on the basis of the evidence presented before the Court, it has to be concluded that the negative effects which the impugned measures had on the applicants’ private life did not cross the threshold of seriousness for the issue to be raised under Article 8 of the Convention. The reasons for the applicants’ dismissal were not linked to their “private life” to a sufficient degree within the meaning of Article 8, nor did the consequences of the impugned measures sufficiently affect their private life under that provision.
138. It follows that this Article is not applicable and that the applicants’ complaint must be dismissed as incompatible ratione materiae with the Convention pursuant to Article 35 §§ 3 (a) and 4.
For these reasons, the Court,
Decides,unanimously,to join the applications;
Decides, unanimously, to strike the applications out of its list of cases in accordance with Article 37 § 1 (a) of the Convention, in so far as they concern the seventy-three applicants who have withdrawn their complaints (see appendix 2 below);
Decides, by a majority,to strike the applications out of its list of cases in accordance with Article 37 § 1 (b) of the Convention, in so far as they concern the two applicants mentioned in paragraph 16 above who remained in post unaffected (Ms E.M.S. and Mr Mátyás Mészáros);
Declares, by a majority,the applications inadmissible in so far as they concern the remaining applicants.
Done in English and notified in writing on 20 December 2018.
Marialena Tsirli Ganna Yudkivska
Registrar President
____________________
[1]. Text inserted following an amendment of the Fundamental Law, as of 1 April 2013.
[2]. The Constitutional Court found the above-mentioned provisions, together with other parts of the Transitional Provisions of the Fundamental Law, to be unconstitutional and repealed them with retroactive effect as of the date of their enactment, that is to say, 31 December 2011 (see the Constitutional Court’s judgment no. 45/2012, adopted on 29 December 2012).
[3]. Text inserted by a subsequent amendment of the Legal Status and Remuneration of Judges Act, with effect of 15 March 2014.
Appendix
APPENDIX 1: LIST OF APPLICANTS WHO MAINTAINED THEIR complaint
- In application no. 45434/12 (representative: Mr D. Karsai)
| No. | Name | Birth date | Effect of impugned legislation | Domestic redress |
| 1. | É.Á. | 02/08/1949 | dismissal (30/06/2012) | reinstatement |
| 2. | József ÁBRÁN | 06/11/1949 | dismissal (30/06/2012) | lump-sum compensation |
| 3. | Mária ÁGOSTONNÉ PFAFF | 30/09/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 4. | J.B. | 05/01/1949 | dismissal (30/06/2012) | reinstatement |
| 5. | Z.B. | 24/08/1947 | dismissal (30/06/2012) | reinstatement |
| 6. | Tibor BODOR | 13/07/1949 | dismissal (30/06/2012) | reinstatement |
| 7. | D.B. | 11/09/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 8. | E.C.H. | 19/03/1950 | dismissal (31/12/2012) | reinstatement |
| 9. | E.D. | 02/05/1950 | dismissal (31/12/2012) | reinstatement |
| 10. | László Imre FABRICIUS | 11/06/1948 | dismissal (30/06/2012) | reinstatement |
| 11. | Éva Anna FARAGÓ | 02/01/1951 | retirement on own initiative, relieved from service on 23/01/2013 | |
| 12. | M.F. | 01/10/1950 | dismissal (31/12/2012) | lump-sum compensation |
| 13. | L.H. | 15/07/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 14. | Zsolt HalÁsz | 20/07/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 15. | L.H.A. | 28/03/1948 | dismissal (30/06/2012) | reinstatement |
| 16. | C.H. | 17/05/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 17. | K.H. | 14/09/1945 | dismissal (30/06/2012) | lump-sum compensation |
| 18. | Zsuzsanna Horváth | 15/09/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 19. | I.I. | 27/01/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 20. | M.A.J.D. | 20/07/1946 | dismissal (30/06/2012) | appointment to stand-by post |
| 21. | Dezső Kalavszky | 04/12/1947 | dismissal (30/06/2012) | reinstatement |
| 22. | Mária Róza KÁlmÁn | 01/05/1950 | dismissal (31/12/2012) | lump-sum compensation |
| 23. | M.K.C. | 10/01/1950 | dismissal (31/12/2012) | reinstatement |
| 24. | A.M.K.J.T. | 28/07/1949 | dismissal (30/06/2012) | lump-sum compensation |
| 25. | J.K. | 23/05/1949 | dismissal (30/06/2012) | reinstatement |
| 26. | É.K.G. | 08/09/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 27. | K.K.S. | 10/05/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 28. | Ferenc Zoltan Köszler | 10/04/1948 | dismissal (30/06/2012) | reinstatement |
| 29. | L.K. | 25/11/1942 | dismissal (30/06/2012) | lump-sum compensation |
| 30. | Valéria Kukla | 15/12/1945 | dismissal (30/06/2012) | reinstatement |
| 31. | Árpád Kun | 21/12/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 32. | István Lente | 27/07/1950 | dismissal (31/12/2012) | reinstatement |
| 33. | Magdolna Lévainé Jankovics | 23/06/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 34. | É.L. | 14/01/1949 | dismissal (30/06/2012) | lump-sum compensation |
| 35. | E.M.S. | 27/04/1953 | not dismissed | |
| 36. | Györgyike MecsÉr
|
09/06/1947 | dismissal (30/06/2012) | lump-sum compensation |
| 37. | Éva MiszlaynÉ LÁnyi
|
24/09/1942
|
dismissal (30/06/2012) | lump-sum compensation |
| 38. | Mária MolnÁr | 19/10/1947 | dismissal (30/06/2012) | lump-sum compensation |
| 39. | Valéria Nikula | 18/11/1948 | dismissal (30/06/2012) | reinstatement |
| 40. | Katalin OlÁh | 01/08/1946 | dismissal (30/06/2012) | reinstatement |
| 41. | Tibor OlÁh | 20/11/1945 | dismissal (30/06/2012) | lump-sum compensation |
| 42. | I.P.T. | 29/07/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 43. | Zsuzsanna Mária SÁndor | 15/06/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 44. | M.S.Z.H. | 08/04/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 45. | Ágnes SiposnÉ Nádai | 03/05/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 46. | János Somfai | 08/07/1947 | dismissal (30/06/2012) | lump-sum compensation |
| 47. | József Szabolcsi | 19/03/1947 | dismissal (30/06/2012) | reinstatement |
| 48. | K.S. | 13/01/1947 | dismissal (30/06/2012) | lump-sum compensation |
| 49. | I.S.K. | 02/01/1949 | dismissal (30/06/2012) | reinstatement |
| 50. | A.S. | 14/08/1944 | dismissal (30/06/2012) | lump-sum compensation |
| 51. | Rózsa SzilvÁsynÉ FutÓ | 25/03/1945 | dismissal (30/06/2012) | lump-sum compensation |
| 52. | L.T. | 25/09/1950 | dismissal (31/12/2012) | reinstatement |
| 53. | M.T. | 17/08/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 54. | Edit Mária TokajinÉ Tréki | 17/06/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 55. | István Tóth | 31/01/1943 | dismissal (30/06/2012) | reinstatement |
| 56. | István UngvÁri
|
13/08/1947 | dismissal (30/06/2012) | lump-sum compensation |
| 57. | Éva Ungváriné Klein | 24/02/1950 | dismissal (31/12/2012) | lump-sum compensation |
| 58. | Erzsébet ZÓlyominÉ TÖrŐ | 03/12/1950 | dismissal (31/12/2012) | reinstatement |
- In application no. 45438/12 (representative: Mr A. Cech)
| No. | Name | Birth date | Effect of impugned legislation | Domestic redress |
| 59. | BELEGI József | 13/08/1947 | dismissal (30/06/2012) | reinstatement |
| 60. | BUZINKAY Zoltán György | 08/11/1949 | dismissal (30/06/2012) | reinstatement |
| 61. | CZENE Klára | 11/03/1951 | retirement on own initiative, relieved from service on 23/01/2013, effective on 10/03/2013 | |
| 62. | DEMETER Ferencné | 06/01/1943 | dismissal (30/06/2012) | lump-sum compensation |
| 63. | ERMÉNYI Lajos (deceased on 06/01/2015; heirs: KOCZKA Éva, ERMÉNYI Kinga, ERMÉNYI Csaba) |
17/08/1950 | dismissal (31/12/2012) | lump-sum compensation |
| 64. | ERŐSS KÁROLYNÉ DR. VAJVODA Ildikó | 09/04/1945 | dismissal (30/06/2012) | lump-sum compensation |
| 65. | HANKOVSZKY Zsolt | 11/08/1947 | dismissal (30/06/2012) | lump-sum compensation |
| 66. | HAVASI Péter | 17/10/1949 | dismissal (30/06/2012) | reinstatement |
| 67. | HEGYI Antalné | 27/10/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 68. | HORVÁTH Ibolya | 06/04/1944 | dismissal (30/06/2012) | lump-sum compensation |
| 69. | KÁNTOR András Richárdné (deceased on 25/09/2015; heir: KÁNTOR András Richárd) |
02/04/1945 | dismissal (30/06/2012) | lump-sum compensation |
| 70. | KARDOS Sándor | 27/02/1949 | retirement on own initiative, relieved from service by a decision of 07/10/2011, effective on 31/12/2011 | |
| 71. | KÁRPÁTI Zoltán | 04/05/1949 | dismissal (30/06/2012) | reinstatement |
| 72. | KASZAINÉ MEZEI Katalin
|
22/12/1944 | dismissal (30/06/2012) | lump-sum compensation |
| 73. | KISS Mária | 27/01/1948 | retirement on own initiative, (relieved from service by a decision of 13/12/2011, effective on 31/05/2012) |
|
| 74. | KOROMPAINÉ ANGYAL Erzsébet | 15/12/1945 | dismissal (30/06/2012) | lump-sum compensation |
| 75. | KOZMA György | 07/08/1949 | dismissal (30/06/2012) | reinstatement |
| 76. | MASSZI Katalin | 16/02/1946 | dismissal (30/06/2012) | lump-sum compensation |
| 77. | MÉSZÁROS Mátyás | 14/01/1951 | not dismissed | |
| 78. | MEZŐDI János | 19/01/1949 | dismissal (30/06/2012) | lump-sum compensation |
| 79. | MOSONYI Gyuláné | 04/12/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 80. | SZABÓNÉ FARKAS Rozália (deceased on 3 May 2016, heirs: JEBENS-SZABÓ Nóra and SZABÓ Elek) |
26/05/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 81. | SZABÓNÉ KERÉKGYÁRTÓ Judit | 11/12/1948 | dismissal (30/06/2012) | lump-sum compensation |
| 82. | SZÜCS József | 04/01/1948 | dismissal (30/06/2012) | reinstatement |
| 83. | SZŰCSNÉ ÉDL Gabriella | 27/09/1947 | dismissal (30/06/2012) | reinstatement |
| 84. | TÍMÁR Lászlóné | 01/01/1949 | dismissal (30/06/2012) | lump-sum compensation |
| 85. | VARGA Klára | 09/05/1948 | dismissal (30/06/2012) | lump-sum compensation |
- In application no. 375/13 (representative: Mr A. Kádár)
| No. | Name | Birth date | Effect of impugned legislation | Domestic redress |
| 86. | Éva Julianna HORVÁTH
|
08/10/1950 | dismissal (31/12/2012) | lump-sum compensation |
| 87. | Irma KULCSÁR | 21/12/1950 | dismissal (31/12/2012) | lump-sum compensation |
APPENDIX 2: LIST OF APPLICANTS WHO withdrew THEIR complaint
- In application no. 45434/12 (representative: Mr D. Karsai)
| No. | Name | Birth date |
| 1. | Tibor BECKER | 25/05/1949 |
| 2. | S.B. | 19/04/1947 |
| 3. | Z.B. | 18/12/1947 |
| 4. | M.B.L.T. | 02/08/1947 |
| 5. | Lászlóné BUCSI | 09/06/1949 |
| 6. | B.C. | 12/08/1950 |
| 7. | J.C.G.S. | 30/11/1947 |
| 8. | J.D. | 10/05/1950 |
| 9. | H.E. | 19/11/1950 |
| 10. | Márta ENDRE ISTVÁNNÉ KÖRÖSZTÖS | 16/06/1949 |
| 11. | Z.F.K. | 02/08/1948 |
| 12. | Á.F. | 23/02/1944 |
| 13. | Lászlóné GÁBOR | 26/10/1947 |
| 14. | Gabriella GÁL PÉTERNÉ MOLNÁR | 12/08/1943 |
| 15. | G.G. | 20/04/1951 |
| 16. | M.H. | 25/01/1946 |
| 17. | A.H. | 29/07/1948 |
| 18. | I.H. | 06/11/1950 |
| 19. | János HEGEDŰS | 16/09/1950 |
| 20. | E.H.T. | 03/10/1949 |
| 21. | Róbert HILDENBRAND | 03/12/1942 |
| 22. | Á.H.K.P. | 05/06/1950 |
| 23. | A.I. | 27/12/1946 |
| 24. | Jolán JANKOVICS | 23/10/1948 |
| 25. | J.J. | 30/11/1946 |
| 26. | Judit KEYHA | 02/01/1949 |
| 27. | Á.K.K. | 22/05/1950 |
| 28. | É.K.F. | 10/05/1946 |
| 29. | Mária KÓMÁRNÉ GYAPJAS | 02/05/1950 |
| 30. | L.K. | 26/02/1948 |
| 31. | I.K. | 24/08/1949 |
| 32. | B.L. | 01/03/1949 |
| 33. | M.L. | 12/06/1949 |
| 34. | Mihály MAROS | 28/06/1944 |
| 35. | E.M.M.T.P. | 20/10/1949 |
| 36. | Z.N. | 11/06/1945 |
| 37. | P.N. | 28/02/1952 |
| 38. | O.P.I.L. | 16/03/1945 |
| 39. | Pál PÉTERY | 20/07/1944 |
| 40. | I.P.V. | 17/03/1946 |
| 41. | G.R. | 11/12/1944 |
| 42. | A.R.G. | 16/1/1952 |
| 43. | Z.R. | 07/12/1948 |
| 44. | Ágota RÉVÉSZ TAMÁS MIHÁLYNÉ SZÉP | 07/01/1949 |
| 45. | A.R. | 20/10/1950 |
| 46. | M.S. | 11/03/1950 |
| 47. | Margit SOMNÉ BILLEGE | 19/02/1949 |
| 48. | É.T.S. | 16/05/1945 |
| 49. | A.S.S. | 07/03/1946 |
| 50. | M.S. | 21/01/1949 |
| 51. | I.S. | 20/04/1948 |
| 52. | P.S. | 25/10/1948 |
| 53. | László TÖLG-MOLNÁR | 22/02/1947 |
| 54. | G.V.F. | 01/11/1946 |
- In application no. 45438/12 (representative: Mr A. Cech)
| No. | Name | Birth date |
| 55. | ALMÁSY Mária | 30/08/1951 |
| 56. | BÁNKI-HORVÁTH Mária | 02/04/1944 |
| 57. | BODOR Mária Zsuzsanna | 20/09/1945 |
| 58. | BOGDÁNYNÉ MAGYAR Erzsébet | 12/09/1947 |
| 59. | BORSAINÉ TÓTH Erzsébet | 13/11/1951 |
| 60. | FÖLDÉNYI Gyuláné | 25/01/1945 |
| 61. | GÁL Judit | 05/12/1950 |
| 62. | HEIDRICH Gábor | 08/08/1945 |
| 63. | HILDENBRANDNÉ BALOGH Olga | 02/10/1948 |
| 64. | HLINYÁNSZKY Éva | 26/06/1951 |
| 65. | JUHÁSZ László Vendel | 08/03/1948 |
| 66. | KÁRMÁN Miklósné | 29/03/1949 |
| 67. | KÁRPÁTI Magdolna Ildikó | 20/07/1951 |
| 68. | MATHEIDESZ Ilona | 03/08/1951 |
| 69. | MOHÁCSY Zsuzsanna | 25/06/1950 |
| 70. | PÁLNÉ MIKOLA Júlia | 07/12/1950 |
| 71. | PONGRÁCZ Emma | 08/08/1946 |
| 72. | PUSZTA Enikő | 15/08/1948 |
| 73. | SZABÓ Péter | 01/03/1945 |
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