The Limits of Judicial Irremovability from the Perspective of the Restoration of the Rule of Law: A View from Strasbourg

Abstract

Judicial removal without cause is one of the most serious attempts to judicial independence. Understandably, in any decent rule of law system judicial irremovability became a fundamental tenet of the rule of law (hereinafter ROL).

A. Sajó—Former judge at the European Court of Human Rights, Professor at Central European University PU, Democracy Institute.

Judicial removal without cause is one of the most serious attempts to judicial independence. Understandably, in any decent rule of law system judicial irremovability became a fundamental tenet of the rule of law (hereinafter ROL). The independence and impartiality of the judiciary is fundamental for the existence of the legal community that serves as the basis of the European Union. What to do with judges or even with the judiciary whose activities undermine the trust in the administration of justice in the EU because of the complicity of the judiciary or part of it in the demise of the ROL? What is appropriate, once the illiberal regime that caused the ROL backlash is removed? (These are the two, interrelated types of ROL restoration.) What to do if that judiciary (and the political branches behind it) engage in activities “aimed at the destruction of any of the rights and freedoms” set forth in the European Convention of Human Rights (hereinafter: ECHR)? What to do in case there are systemic shortcomings in a judiciary, for example corruption, political bias (due to selection on grounds of political loyalty or political influence or pressure, including pressure coming within the judiciary), or large scale lack of professional skills and knowledge?¹ How to reform a judiciary that is confronted with the above problems if judges are irremovable? These problems are acute in periods of transition to the ROL where a judiciary inherited from a past authoritarian regime or failed state is not skilled or is inclined to follow embedded authoritarian legal concepts and attitudes. This paper deals with a special transition problem that is common to a number of EU member states: how to restore the ROL in those member states where illiberal democracy has undermined (at least partly) the integrity of the judiciary?

The difficulty of the ROL restoration originates from the fact that many illiberal democracies have tried to legalize the abuse of the ROL by placing the wrongdoing and power grab into a legalistic frame. To quote from Levitsky and Ziblatt, one of the first steps how the democratic system is being captured and subverted from the inside by autocrats, is precisely “packing and “weaponizing” the courts and other neutral agencies”, saying that “the tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy – gradually, subtly, and even legally – to kill it.”² To turn these institutions into ROL actors requires their restoration given that RoL is seriously compromised in illiberal democracies (from Hungary to Bulgaria) and other non-EU populist regimes (for example, Venezuela). One of the central concerns in ROL restoration is the future of statutory and constitutional institutions that not only served well the ROL erosion but will most likely (or are actually) obstacles of the restoration.

It may be true in terms of political science analysis that illiberal democracies show clear signs of democratic backlash and constitutional institutions promote this agenda instead of protecting a democratic political order, but such findings cannot be directly transferred to legal action and do not provide sufficient legal legitimacy for restorative action. It is true that the CJEU and the European Court of Human Rights (hereinafter: ECtHR) were already very close at the time of this writing (end of 2021) to conclude that the administration of justice in Poland is not independent, but at least in the case of Hungary the judicial authorities and the Constitutional Court were not identified by international courts as non-courts, and the Romanian or Bulgarian administration of justice, although subject to permanent review under a verification mechanism is even less subject to supranational judicial condemnation. As to Hungary, the systemic irregularities seem to be disregarded at the level of the supranational judiciary. The dismissal of the President of the Hungarian Supreme Court and the forcing into retirement of judges in 2011 were found to be in violation of the ECHR but the lack of proper remedial action went judicially unnoticed.³ As to the Hungarian Constitutional Court, after many years of uncertainty and legal hesitation the system of constitutional review was declared an effective remedy by the ECtHR around 2018.

The restoration of the ROL by reforming the administration of justice through personal changes runs into ROL objections. The principle of judicial irremovability and the prohibition holding judges accountable for the judgments they have rendered stand in the way of any removal, including removal in the name of institutional rearrangement, at least where the restoration of the RoL is assumed to be legitimate only if it is carried out in accordance with the RoL. Although constitutional amendment (and the entry into force of a new constitution in particular) allows more freedom in this respect, even these changes may be contrary to fundamentals of constitutionalism (see e.g. the unconstitutional constitutional amendment doctrine).⁴ Without constitutional amendment the necessary restorative steps are simply illegal and extra-legal. A quasi revolutionary removal is hardly compatible with the RoL, although exceptional circumstances may justify limited exceptions.

“Irremovability is designed to shield…judges from influence of the political majority of the day. It would be unacceptable if each new government could replace sitting judges with newly elected ones of their choice.”⁵ It is for this reason that the reform of the judiciary by en masse personal change in transition to democracy (and prima facie likewise in the process of restoring the ROL) is often considered impermissible by international expert bodies like the Venice Commission, even where there is evidence that the judiciary is overwhelmingly incompetent or corrupt. On the other hand, where there is a systemic threat to the rule of law⁶ where the threat originates in the judiciary (apex courts in particular) the equation may change, justifying extraordinary measures in respect of irremovability.

The ECtHR, like many European supranational authorities, is of the view that the security of tenure of judges is a universally recognised principle in all jurisdictions respecting the ROL. The position of the ECtHR is that judicial independence is derived from the requirement of the individual right to fair trial. Separation of powers is considered a relevant principle, although so far this did not play an independent role in the Court’s findings – although that would certainly make the declaration of the incompatibility of a court with independence simpler. There is also reference to the ROL as principle, mentioned in the Preamble of the Convention.

However, there can be exceptions to irremovability, but these require compelling reasons.⁷ As the Grand Chamber of the CJEU in the case of Commission v. Poland (C-619/18) has stated, the principle of the irremovability of judges is not absolute, although an exception to that principle would only be acceptable “if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it.”⁸

In the practice of the ECtHR typically an inappropriate, unlawful judicial conduct that is irreconcilable with the judicial function and integrity counts as compelling reason for removal. But it was never said that a compelling reason can only be individual conduct based. Arguably the restoration of the public confidence in the justice can be a compelling reason where specific individual conduct is present.

The ECtHR concluded that upholding the principles of legal certainty and irremovability of judges at all costs, and at the expense of the requirements of “a tribunal established by law”, may in certain circumstances inflict even further harm on the ROL and on public confidence in the judiciary. It follows that where irremovability is contrary to the requirement of a court established by law compelling reasons will justify the removal. A court that is designed with the intention to operate in a politically biased way will not automatically benefit of the presumption of irremovability.

The principle of irremovability does not mean absolute irremovability: the grounds of removal are broad. Disciplinary violations and criminal activity are ordinary grounds of removal, if the dismissal occurs in fair procedure (often with special guarantees of the judicial process given the sensitivity of removal). Transition to democracy and the restoration of the ROL represent special cases. Given the imperative needs of the transformation of the politically compromised judicial system additional grounds of removal may be considered and alternative forms of fair proceedings come into consideration. In the case of transition to democracy from a totalitarian regime personal service to the previous totalitarian regime is often considered a ground for dismissal, even if the judge acted within the four corners of the existing (totalitarian) law. Being a secret service informant, active membership in totalitarian organizations, or participation in clearly inhuman judgments are grounds of individualized dismissal.

The situation differs in the case of semi-failed states where the judiciary failed too. In the case of Ukraine and Albania international experts seemed to endorse some kind of non-individualized approach with individual review without judicical finality. A general vetting of all judges was introduced, where the assumption of irremovability was not fully applicable. The present chapter deals with a third situation, namely potential changes in the judiciary in the process of restoration of the ROL in case illiberal regimes are forced out of power. As of the present writing (end of 2022), there is no example of such ousting in Europe, except perhaps in Bulgaria, but ROL based international legal systems (e. g. European Union law or the IACtHR) are already confronted with the dilemma: how to deal with judges who observe and apply the highly problematic legal provisions operating in a politically compromised administration of justice which maintains a veneer of professionalism.

The dilemma of the restoration of the ROL in illiberal democracies concerns courts (apex courts in particular), judicial formations (e. g. adjudicating chambers with one or more allegedly unlawfully operating members) or individual judges. The criticism is not based here on lack of professionalism or corruption and even less on collective complicity in gross human rights violations. The problem consists in the institutional role that judges or courts have played in the mechanism of illiberal democracy. This involvement and the likelihood that the judiciary will continue to sustain the ROL backlash compromises the restoration of the ROL.

The fate of the compromised judiciary and its judges is primarily a constitutional issue with clear political ramifications. Once again, separation of powers and the ROL would dictate that the judiciary is untouchable. Any reform intended to remove judicial power holders will risk the politicization of the judiciary. While there can be (often well founded) reservations regarding the moral integrity of some of the judges appointed in illiberal regimes, general vetting or dismissal on such grounds is particularly risky. While a judicial reform that affects managerial positions in the judiciary may be less problematic than dismissals, especially if the measures are taken by judges and within the guarantees of institutional autonomy, such restorative reforms remain risky.⁹

However, if the system of appointment of the judges was wrongful, or at least the appointment to the apex courts is politically biased, the whole judicial body (e.g. a decision-making formation) will be compromised. Appointment enters the picture because a finding that a court is not a “tribunal established by law” may have considerable ramifications for the principles of legal certainty and irremovability of judges. Appointment is relevant in the determination whether a tribunal can be considered “independent” within the meaning of Article 6 § 1 ECHR given that the process of appointing judges necessarily constitutes an inherent element of the concept of the “establishment” of a court or tribunal “by law.”¹⁰

If the appointment is wrongful the removal of wrongfully appointed judges who are obstacles to the restoration of the ROL and were instrumental in the formally lawful undoing of the ROL is less problematic. Once the removal is based on a void appointment the objections that animate the principle of irremovability are less forceful. This is reflected in the standards recently developed by the ECtHR and the CJEU.

To sum up the position of the ECtHR: appointment is crucially related to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite of impartiality. Independence characterizes both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit –, which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties.

The early case law of the ECtHR has established that the dependence of judges especially of the executive is impermissible. It has also insisted on various institutional and procedural guarantees in matters of removal for cause. In this respect it is now required that in the body dealing with removal the majority must be judges.¹¹ In the last few years the ECtHR provided a restatement of its approach to appointment.¹²

Recently, in Ástráðsson the Court has devised a three-prong test: the criteria, taken cumulatively, provide a basis to guide its assessment regarding appointments.

According to the ECtHR:

“- In the first place, there must, in principle, be a manifest breach of domestic law in the sense that it must be objectively and genuinely identifiable. However, the absence of such a breach does not rule out the possibility of a violation, since a procedure that is seemingly in compliance with the rules may nevertheless produce results that are incompatible with the above object and purpose [independence of the judiciary]”.¹³

The ECtHR is of the view that only “essential violations” can be considered as an attempt to the independence of a court as a tribunal established by law. For example, the disrespect of the qualification criteria or procedural violations do not amount to such violations, although the way the test was applied in Ástráðsson indicates that a combination of non-essential violations may still result in a finding that a judgment was not rendered by a tribunal established by aw. What matters is the result: does the inappropriateness undermine the object and purpose of the procedure.

From the perspective of the restoration of the ROL the exceptions to irremovability recognized by the Court are of particular relevance. Even a formally correct appointment may qualify as manifest breach if the result of the process itself is contrary to the object and purpose (i. e. independence) of the appointment process. Even if the appointed person is qualified the criteria of qualification may be such that are contrary to independence. It was left open what happens where there is no manifest breach of domestic law but the respected law itself is incompatible with the ROL.

Given the importance of irremovability only a pressing (compelling) need for removal is acceptable. As in all cases where the fundamental principles of the Convention come into conflict, a balance must therefore be struck in such instances to determine whether there is a pressing need – of a substantial and compelling character – justifying the departure from the principle of legal certainty. Even if such finding is established that has direct consequences (not specified in detail in the leading case) on the decision rendered by the illicit judicial formation, the legal validity of a judgement rendered depends on the circumstances. According to the ECtHR, even irregularly appointed judges may be part of a court established by law, e. g. when they have served a long enough time. ROL allows for the consideration of the lapse of time, as RoL standards can be derogated for the sake of legal certainty. This is perhaps an inevitable consideration, although it remains paradoxical: ROL requires its own disregard, or more properly, the ROL as a principle is satisfied if it finds the right balance in a conflict between its own components.

From the perspective of the restoration of the ROL the problem with such a balance in favour of legal certainty (res iudicata) is this: is the time lapse a good enough reason to let appointees of the improper selection process, including those who were politically biased, to continue to serve in their illicitly obtained position, continuing their at least potentially politically biased adjudicatory activity, especially in managerial positions?

Time is not an absolute cure of past illegality. In adverse possession situations bad faith may counter the lapse of time. Likewise, the length the performance cannot be decisive: it is the quality of the judicial service that matters – but this is not a consideration or ground in ordinary removal.

The Ástráðsson test opens certain possibilities to circumvent the obstacle of the irremovability in the restoration of the ROL. However, the finding of ab initio voidness of the judgments of wrongfully established tribunals could have inconvenient consequence. Potentially all the judgments rendered by the non-judges are void – a solution that runs the risk of undermining legal certainty as it is not clear what happens to the judgments rendered. On the other hand, the approach offers the possibility of substantive review of past judgments which contributed to the abusive power grab and corrupt practices of illiberal regimes. In terms of the restoration of the ROL within the frame provided by the Convention there are no directly applicable rules regarding the fate of wrongfully appointed judges and even less on chambers or courts formed in disrespect of the Ástráðsson appointment requirements. In other words, the Ástráðsson test does not offer a final, automatic solution to wrongful appointments. Given that the ECtHR deals with convention rights and not with constitutional matters, at least not directly, it is not surprising that the Ástráðsson judgement did not deal with the appropriateness or necessity of removal of judges who are improperly appointed. However, in the context of the Polish cases the ECtHR had to conclude that certain judicial formations, filled with irregularly appointed “non-judges” do not operate as courts.

On the other hand, appointed judges do have a right to keep their position and, at least in some cases where the dismissal occurred in vicious procedure, the suggested remedy of wrongful removal was reappointment.¹⁴

In principle, the appointment considerations apply to institutions as well: An organ not established according to the legislation would be deprived of the legitimacy requiredin a democratic society to hear individual complaints. The systemic problem is that in illiberal democracies the courts are established in line with the (abusive) provisions of the law, where laws are appropriately tailored to create an opportunity to appoint the “right” judges. Here law and rule by law is to legalize arbitrariness. The problematic courts and judges are appointed in conformity with domestic law but in an abusive way.¹⁵ The international courts had to go beyond the appearance created by domestic law, considering the legitimacy of the appointing body and of the process applied in the appointment, using their own standards.

Note that because of the need to respect judicial irremovability the ECtHR has construed the problem of an “abusive judiciary” that in itself represents a risk to impartiality as a problem of wrongful appointment.¹⁶ In other words, the frame that the precedent respecting ECtHR has applied (and offered for potential domestic use) was developed in a context (namely an individual shortcoming within the context of fair trial rights of third parties) that differs substantially from a systemic political manipulation of the judiciary that characterizes the demise of the ROL in illiberal democracies. As of the end of 2021 the ECtHR was still framing the problem of the attack on the judiciary in a formalistic way. The ECtHR found that overruling an earlier decision of the Polish Tribunal without (what the ECtHR considers satisfactory) justification amounts to arbitrariness. It follows that such findings are irrelevant. However, the Polish constitutional review system is not based on the precedential value of earlier decision.¹⁷

The ECtHR was motivated by the desire to rely on abstract, non-political, considerations. It was even less appealing to analyze the political bias in the decisions of the domestic courts, in particular the political agenda of the constitutional courts, supporting the government’s power grab. Such review would apparently go against another principle of the ROL: there can be no political or disciplinary accountability for the content of judicial decisions – although it is in this respect that the performance of coopted courts is really undermining constitutionalism and democracy. The narrow interpretation of the ROL requires a kind of neutrality which results from a technical analysis. This precludes substantive review which would result in the finding of systemic governmental bias. The understandable reluctance of courts to enter into some kind of “political justice,” a restraint embedded in a strict, formal concept of the ROL, sets the limits of judicial action. In view of the above, it was not surprising that for a long time the ECtHR refrained from discussing the rather obvious political bias behind the legal façade that was created to achieve the desired political goals by the specific appointments. This reluctance is understandable but somewhat surprising as the ECtHR was aware of the position of other European instances regarding the “systemic threat to the rule of law” in Poland, and quoted these findings extensively.¹⁸ Moreover, the ECtHR had a well established doctrine of systemic violation.

Nevertheless, it did not consider the political intent of the legislation in changing (constitutionally) the existing system of appointments. This apolitical deferentialism is rather common worldwide, given the reluctance of the courts to pass political judgement. In Ástráðsson the political calculation and manipulation in the individual selection of judges was left out in the supranational judicial analysis, though it clearly transpires from the reconstruction of the facts of the case.¹⁹ Likewise, when the mandate of the President of the Hungarian Supreme Court was prematurely terminated under the pretext of the entering into force of the new constitution (Fundamental Law) in 2012, the ECtHR discussed the matter primarily as a matter of freedom of expression as Mr. Baka was forced out (and not allowed to be considered for a future term thanks to an ad hominem law) because he voiced his critical professional position. The ECtHR did not consider the appropriateness of shortening the term a political (constitutional) matter, although it referred at least to the violation of the ROL.²⁰

However, as the Ástráðsson case clearly indicates, there is an alternative to the technical approach, a more political avenue for the decision-making. Perhaps in the Icelandic context, where the problem did not seem systemic and the Supreme Court did provide some kind of remedy, an apolitical approach was sufficient to achieve the nover result. A broader approach would entail the review of the failure of democratic politics, a matter of relevance in the efforts to restore the ROL. In Ástráðsson the wrongful appointment process originated in a dirty personal deal between the Minister of Justice and the politician husband of the judge who was nominated by the Minister notwithstanding her lesser performance compared to her peers.²¹ There was quite some evidence demonstrating that this illicit political deal was behind the appointment, and the ECtHR was fully aware of it. However, it refrained from the analysis of this substantive issue. It was satisfied with the lack of justification for preferring the lady candidate. In other words, for the Court this was a case of illicit appointment for lack of proper justification and not one of corrupt practices. The ECtHR refrained from considering the accountability aspects of the collusion and limited its analysis to the arbitrariness of the ministerial decision, instead of the corrupt deal behind the arbitrariness. While this avenue was not used, in case of sufficient evidence of political bias this might result in a finding of improper appointment. It is important, and legally possible, to consider the reasons behind arbitrariness. The fundamental difficulty of the formal arbitrariness review is that smarter judges with sufficient resources and without moral compass are generally able to come up with make-shift “reasons” (legalese Tohu va-Vohu and “respect of constitutional traditions, etc.). With the much heralded procedural turn of the ECtHR (and other minimalist courts) judges (and legal reasoning) will not be able to withstand judicial cheating. It is the good luck of legal formalism that the Polish Constitutional Tribunal is so careless and confrontational that it is relatively easy to disregard its decisions as arbitrary.

This reluctance to draw conclusions on the basis of political wrongdoing reflects the subsidiary role that the ECtHR has increasingly attributed to itself. As to the CJEU, contrary to the approach of the Advocate General, it preferred a fact based but still non-political approach, where the evaluation is based on how ordinary citizens would consider the appearances. It is for the domestic court to determine: “whether, taken together, … all the … relevant findings of fact which it will have made are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the Disciplinary Chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.”²²

Certainly, such apolitical methodology promises a non-controversial (seemingly judicially neutral, legalistic) solution. These international courts do not feel qualified to enter into the discussion of domestic facts (and even less laws written in exotic languages) which are (local) context bound and hardly accessible to foreign judges (at least this is the narrative). With or without a doctrine of subsidiarity they have to rely on local fact finding or, in the case of the CJEU, on local conclusions. But this means that they must rely on the politically often complicit domestic courts. In Poland this resulted in a war of attrition among the various courts. In Hungary it is unlikely that such review will ever take place with satisfactory self-criticism; with a lot of twisting and turning the higher judicial instances will find a way not to draw the conclusion intended in Luxemburg.²³ In Bulgaria so far the Judicial Council was unable to take steps regarding the Prosecutor General.

In the hypothetical case that the illiberal regime will be voted out, the issue is what can be done legally with the leftover constitutional institutions (especially apex courts) which operate as enclaves (leftovers) of the illiberal regime, representing a clear and imminent danger that they will continue to protect the illiberal government that was voted out at the election, paralyzing thereby the restoration of the ROL – in the name of the ROL. What to do with the courts (and apex courts in particular) of illiberal democracies? Let’s consider the practical application of the above Ástráðsson appointment test in the context of the restoration of the ROL.

In the case of systematic and structural violations²⁴ of judicial independence removal for improper appointment may satisfy the above test. This seems to be the case in Poland, where judges were appointed with the decisive participation of a constitutional body that was created in violation of the ROL.²⁵ In the Polish situation the judicial appointments remain illicit given the lack of transparency in the nomination process and many irregularities in individual appointments. But this would mean that the removal shall be a matter of individualized evaluation and not collective handling. The practical advantage is that it would not require mass removal which would cause serious trouble for the administration of justice, both practical and in the sense of legitimacy. On the other hand, it is tempting to consider the appointments in their political reality. It is in the political context that the abuse and its intent become clear. For two years before the “reform” of the Polish Judicial Council there were no appointments, enabling the filling of the unusual vacancies by the new body. This abusive result makes the appointments fundamentally flowed, across the board – but is it fair to hold this against the individual appointees who have their fundamental rights at stake? Whether collectively or individually, the appointments may be declared void, though it is not clear what will be the practical impact of such mass removal on the administration of justice. What are the consequences of such voidness if it affects a large number of judges and judgments, undermining legal certainty, legitimate expectations, including the expectations of the improperly appointed judges (many of them simply not having had alternatives in case they wished to become judges)? As of 2021, only certain formations of the Supreme Court) were declared non-courts (the disciplinary chamber). As to the Constitutional Tribunal judgments rendered with the participation of one of three viciously elected constitutional court judges were held void.²⁶

While in the case of Polish courts the systemic violation of judicial independence is relatively easy to prove (though the remedies remain controversial) the matter is more complicated in Hungary, especially in respect of the Hungarian Constitutional Court (hereinafter: HCC). As to Hungary, most of the alleged improprieties of appointment concern events that occurred 10 years ago (albeit with lasting consequences of an untreated cancer) and are not as blatant as in the Polish case. There is no judicial finding regarding the unlawfulness of the appointments to the HCC which were carried out in conformity with the amended law. As to the ordinary courts, it is true that the 2012 law that forced judges of ordinary courts into early retirement was held invalid by a number of courts.²⁷ It was found contrary to the Fundamental Law by the Hungarian Constitutional Court (at the time still without a clear pro-Fidesz government majority)²⁸, the equal treatment directive (as determined by the CJEU)²⁹ and right to private life (ECtHR)³⁰. Likewise, the early termination of the mandate of the President of the Supreme Court and the Vice-President was held to violate the ECHR.³¹ Where there were findings of illegality the excesses were formally corrected (with the significant exception of the Baka case). No authority ever considered the lasting structural consequences of the judicial retirement case (i. e. that the court management was transferred to judges selected by the political power.) The appointments which occurred after the illegal removals were never found to be problematic by a judicial instance. The new system of judicial self-government enabled a Parliament elected FIDESZ cadre (a judge) to exercise considerable power in appointment and court management. This system was not reviewed by supranational courts although the Venice Commission expressed its concerns. At first glance the Ástráðsson criteria were not manifestly violated and the problem of the judiciary is not about appointment (except for the current President of the Supreme Court)³², but removal from administrative-managerial positions, a matter that occurred many years ago (albeit most likely with lasting structural consequences).

However, if Ástráðsson is applied in respect of the Hungarian Constitutional Court (which was never formally challenged in a supranational court for not being independent) doubts emerge. The HCC is composed of judges who were elected exclusively upon FIDESZ nomination and solely with FIDESZ votes. The selection was not always in conformity with law³³ but Ástráðsson is not very demanding in that respect.

The appointment problems lie in the amended law. Only a few months after coming to power in 2010 the FIDESZ supermajority changed the rules of nomination of constitutional judges moving from co-decision to a unilateral supermajority solution. The FIDESZ majority was writing the system in its own favor; crucially, it has created new seats in the tradition of court packing when there was a vacancy. The appointments resulted in the denial of pluralism, as all sitting judges were nominated and elected exclusively with Fidesz votes, while at least the Venice Commission is of the view that by allowing changing parliamentary majorities to elect judges of one tendency or another “better reflects the changing political and societal views of the society.”³⁴ However, strictly speaking court packing is not considered necessarily contrary to judicial independence and remains a matter of debate³⁵, although it could amount to direct interference where the change is not intended to improve efficiency (where the exclusive purpose of efficiency improvement cannot be demonstrated).

Are these judges wrongfully appointed that would justify, in principle, their removal enabling the restoration of the ROL, in conformity with Ástráðsson?

The Hungarian appointments were in conformity with the applicable (amended, tailor-made) domestic law. It can be argued, however, that the procedure that was seemingly in compliance with the rules did nevertheless produce results that are incompatible with the object and purpose of judicial independence as the elections to the body that did not provide the political balance that helps relatively unbiased interpretation of the constitution. The appointment procedure was designed for a purpose (to have a loyal court) that is incompatible with the object and purpose of constitutional impartiality. However, it is unlikely in that in a standard judicial analysis a court will venture into the review to what extent the HCC has systematically sided with the government, amounting to the violation of the requirement of impartiality just because the HCC hardly ever created any obstacle to the governments goals to aggrandize and perpetuate power. After all it was the Fundamental Law (the constitution) that enabled such legislation and the HCC only applied the Fundamental Law. Even assuming that these arguments are valid, what remains is an authoritative forum that tests these allegations. Even assuming that the conditions of a finding of improper appointment are present, the Ástráðsson test requires a finding of improper appointment by domestic courts, a highly unlikely matter in Hungary. It is true that a manifest breach can be found by the ECtHR even in the absence of a domestic finding but these were well legalized measures.

Assuming, for the sake of argument that the improper appointments would in principle result in voidness of the judges’ mandate, ab initio. Removal does not automatically follow from wrongful appointment, not even where there is a pressing need (like that of the restoration of the ROL).³⁶ The wrongful appointment approach is important in destroying the myth of irremovability but it cannot be sufficient for the restoration of the ROL. After a decade or so few of the allegedly wrongfully appointed judges may still be active; the dubiously appointed court presidents moved elsewhere having determined who their successors will be, etc. This is how the original sin begets a second generation of judicial managers born in sin.

Where the illegality of the appointment cannot be proven within the narrow technical limits of Ástráðsson, or is too cumbersome to prove, a more “political” but at the same time more honest argument can be made: all the appointments to a body that systematically aimed at the destruction of the RoL are contrary to the purpose of judicial independence. Such body is acting against the purpose of the ROL and therefore illegal or unconstitutional, or contrary to international treaty obligations.

This radical approach remains debated. While in the logic of the ECtHR removal may remain a ROL conform option, as a kind of ROL exceptionalism, exceptionalism exists on the verge of extra-legality. To put it bluntly, this is a revolutionary alternative to the illegal appointments approach. Revolution and the ROL are strange bedfellows and for some people a revolutionary restoration of the ROL cannot produce a ROL system. For others oxymorons do exist, if not in textbook treatise of judicial independence but in real legal life.