a)  Hungary / b)  Constitutional Court / c) / d)  17-07-2012 / e)  33/2012 / f)  On the unconstitutionality of certain provisions of the Act CLXII of 2011 on the Legal Status and Remuneration of Judges / g)  Magyar Közlöny (Official Gazette), 2012/95 / h) .
Keywords of the systematic thesaurus:
Constitutional Justice - Effects - Temporal effect - Retrospective effect (ex tunc).
Institutions - Judicial bodies - Organisation - Members - End of office.
Institutions - Judicial bodies - Organisation - Members - Status.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Independence.
Keywords of the alphabetical index:
Compulsory retirement, judge / Retirement age, interpretation / Historical constitution.
New provisions on the compulsory retirement age of judges cannot have retroactive effect.
I. Several judges concerned by the Act CLXII of 2011 on the Legal Status and Remuneration of Judges (hereinafter, the "Act") lodged constitutional complaints at the Constitutional Court against the Act, which replaced the previous retirement age of 70 years by the "general retirement age". De facto, the retirement age was reduced to 62-65 years according to a gradual system depending on the date of the judges’ birth. According to the new rules, the service of those who have reached the maximum age before 1 January 2012 would terminate on 30 June 2012. For judges who reach that age between 1 January 2012 and 31 December 2012, their service shall end on 31 December 2012.
II.1. The Court examined the formal and substantial requirements of the constitutional complaints lodged based upon Section 26.2 of the CC Act (violation of fundamental rights, individual concern, fundamental relevance of constitutional law). Because they met the criteria, the Court considered them admissible and therefore examined them also on the merits.
2. The Court first examined whether point ha) of Section 90 and Section 230 of the Act is related to the rule of the Fundamental Law (hereinafter, "FL") on independence of judges. The Court applied a special rule on interpretation of the FL laid down in Article R.3. That is, the provisions of the FL shall be interpreted according to their purposes, with the Avowal of National Faith contained therein, and with the achievements of the historical constitution.
The Constitutional Court determines the achievements of the historical constitution. Many statutes adopted in the XIXth century formed a solid base of a modern State governed by the rule of law. The Court cites two historical statutes on judges of that time: Act 1869:IV. and Act 1871:IX. These Acts were crucial because they ordered the separation of the judiciary and public administration, and guaranteed the independence and irremovability of judges. For the age of retirement for judges special rules applied, it was established in 70 years. The retirement system was regulated in a special statute.
The Court held that one of the achievements of the historical constitution is the special status and special treatment of judges by the lawmaker. Independence and irremovability of judges are also achievements of the historical constitution that are obligatory for all and these principles are to be considered when interpreting other norms of the legal system.
The stability of the judges’ service is a constitutional requirement that needs special protection and guarantees: the reasons, the term of office, and the maximum age are to be regulated in cardinal acts.
The FL also guarantees the "right to independent judge" (Article XXVIII). The irremovability of judges assures the independent and impartial judiciary.
The Court referred in its decision to the Recommendation Rec(2010)12 of the Committee of Ministers of the Council of Europe (points 49-50).
3. The FL refers to the "general retirement age". The Transitory Provisions use the same term, but neither the FL, the Transitory Provisions nor the Act have an exact interpretative explanation to define what age it refers to. The term "general retirement age" is not a normative concept because it is not defined in any piece of legislation. The retirement system has been recently modified, and it might be modified also in the future. Retirement limits are not regulated in cardinal laws.
The retirement age – which is not the same as "general retirement age" – is regulated by the Act LXXXI of 1997 on Social Security Retirement (hereinafter, the "SSR"), which is an ordinary (not cardinal) statute. The Act uses another term: "individual/relevant retirement age" in the sense that the age limit to be applied varies. Generally, it depends on the date of birth and gender of the judge.
Actually the SSR does not use the terms "general retirement age" and "individual/relevant age". So the Constitutional Court shall give the interpretation of the terms.
To provide a coherent system of interpretations, the rules of the FL are to be interpreted in connection with each other. Therefore the meaning of "general retirement age" shall not violate the relevant elements of the independence of judges.
To guarantee the principle of irremovability, the greater the difference between the new retirement age and the previous retirement age, the longer transitional period for introducing a lower retirement age is needed.
The Transitional Provisions do not define the general retirement age. Nevertheless, they define the time limits for the application of the rules. These terms could be very short, sometimes only three months.
The expression "individual/relevant age" of the Act refers to a subjective age limit that changes based on individual circumstances. The FL uses the term "general retirement age" in a singular form (not in plural), which means that it refers to an objective age limit that is to be applied for everyone and that should be uniform for all. This is in contrast with the rule of the Act, which refers to the provisions of the SSR and establishes different age limits that can change from one person to another.
The Act connects the term "individual/relevant retirement age" with the maximum age of service of judges. The cardinal act here refers to the provisions of an ordinary act that results in a lower retirement age for judges: between 62 and 65 years instead of 70 years (which was the maximum age limit in the previous Act on Status and Remuneration of Judges).
The consequence is that the new regulation resulted in the removal of judges in a short period of time, even within three months. This violates the independence of judges both on formal and substantial grounds.
3. The maximum age limit for the service of judges shall be regulated by a cardinal act. Until the maximum age limit for the service of judges is regulated by a cardinal act, as it is required by Article 26.2 of the FL, the service of judges shall not be terminated against their will.
The concrete measure of the maximum age limit for judges can be regulated by the Constitution-maker or by cardinal acts. The concrete age cannot be deduced from the FL. However, it can be deduced that the introduction a new retirement age (when not increasing but decreasing the previous age limit) shall be made gradually, a longer transitional period is needed, and it shall not violate the principle of irremovability of judges.
Since the contested provision of the Act did not fulfil this requirement, the Court ordered to annul the provisions in question with retroactive effect, for especially important interest of petitioners and for the sake of the certainty of law.
III.4. Seven judges have made dissenting opinions (István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Béla Pokol, István Stumpf, Péter Szalay and Mária Szívós).
Supplementary information:
The Bill on the Second Amendment of the FL submitted by the Justice Minister on 7 September 2012 would change and amend the Transitional Provisions so that judges’ term of employment can continue until age 65. The Bill specifies that those over 62 may not hold senior posts in courts, but this provision does not apply to the president of the Curia and the head of the National Judicial Office.