The European Court of Human Rights has in early June held a hearing in the Vasiliauskas v. Lithuania (35343/05). Webcast of the hearing is available here. Mr Vasiliauskas was convicted before the Lithuanian courts of crime of genocide on the basis of killing two members of Lithuanian resistance movement against Soviet occupation in January 1953. The Lithuanian courts found that victims belonged to protected national group. Mr Vasiliauskas complains that that Lithuanian courts breached prohibition of Article 7 (no punishment without law) of the European Convention of Human Rights and Fundamental Freedoms. The European Courts found already in similar cases Kononov and others v Latvia and Kolk and Kislyiy v Estonia that prohibition of retroactivity does not apply to genocide, crimes against humanity and war crimes. However, it remains to be seen how the Court will decide in this case, particularly after its Grand Chamber decision in the case of Janowiec and others v Russia. It will be also interesting to see whether the Court will venture in discussing definition of crime of genocide both in international law and domestic Lithuanian criminal law.
Professor Lauri Mälksoo of University of Tartu organised on 12-13 June 2014 a conference on the »Approaches of Liberal and Illiberal Governments to International Law: A Conference Marking 25 Years since the Collapse of Communist Regimes in Central and Eastern Europe«. The conference took place at the Estonian Academy of Sciences. Its proceedings will be published in the Baltic Yearbook of International Law.
The European Court of Human Rights has recently delivered judgment in the case of Baka v Hungary (20261/12) concerning the dismissal of the former President of the Supreme Court of Hungary, András Baka, who held between 1991 and 2007 the post of the Hungarian judge at the European Court of Human Rights. Baka complained that he was prevented from challenging the termination of his position as the Supreme Court justice before his mandate expired. Baka was during his term very critical of the incumbent Hungarian government. His position as the President of the Supreme Court was terminated due to the structural and institutional changes within the highest level of Hungarian judiciary. Baka was later elected for a judge of the new Kúria, the successor of the former Supreme Court of Hungary. Even though this case should not be read and interpreted without the reference to the recent developments in Hungarian public space and the remnants of post-communist legacy, it nevertheless offers some insights as to the nature and scope of freedom of expression of judges at the highest national courts. In this way the Court held that :
100. … it was not only the applicant’s right but also his duty as President of the National Council of Justice to express his opinion on legislative reforms affecting the judiciary, after having gathered and summarised the opinions of different courts. The applicant also used his prerogative to challenge some of the legislation concerned before the Constitutional Court and the possibility to express his opinion directly before Parliament during the relevant parliamentary debate. There is no evidence to conclude that the views expressed by the applicant went beyond mere criticism from a strictly professional perspective, or that they contained gratuitous personal attacks or insults.
The Court therefore confirmed that also judges enjoy freedom of expression, which is, however, not unlimited. Freedom of expression is a human right which protects the important democratic values of pluralism, free thinking, tolerance and broadmindedness. The European Court of Human Rights has stated that freedom of expression “is a prerequisite for the functioning of democracy” (Özgür Gündem v. Turkey, no. 23144/93, 16.3.2000, para. 43). The maturity of a society can be judged by the level of its culture, speech and dialogue. Freedom of expression, of course, is not an all-encompassing right that would protect even the most extreme forms of expression in a democratic society. The Court therefore found :
78. … that there has been a violation of the applicant’s right of access to a tribunal competent to examine the premature termination of his mandate as President of the Supreme Court, as guaranteed by Article 6 § 1 of the Convention.
The Court found also held that Hungary violated applicants’sfreedom of expression. More specifically, it noted:
101. The applicant’s term of office as President of the Supreme Court was terminated three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election… The Court reiterates that the fear of sanction has a “chilling effect” on the exercise of freedom of expression and in particular risks discouraging judges from making critical remarks about public institutions or policies, for fear of losing their judicial office …This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of, and thus the justification for, the sanction imposed on the applicant.”
This case confirms that freedom of expression enjoys broad protection. What is more, freedom of expression is very much dependent on the notion of democracy so that courts must address dilemmas of freedom of expression hand in hand with protection of pluralism in a given society. Therefore, harsh political statements and contributions will not be a priori excluded from the scope of protection of freedom of expression.
N.B. Is Mr Baka the first former Strasbourg judge to win a case before ECtHR ?
A roundtable discussion on “25 Years after the Fall of the Berlin Wall: Self-determination and Human Rights Protection in Europe” took place on 30 May 2014 at the Graduate School of Government and European Studies, Brdo pri Kranju, Slovenia. Speakers include inter alia : Luzius Wildhaber, former President of the European Court of Human Rights, Paul Mahoney, judge of the European Court of Human Rights on behalf of United Kingdom, Peter Jambrek, former judge of the European Court of Human Rights on behalf of Slovenia, Bojan Grobovšek, and Matej Avbelj.
The mandate of the incumbent judge at the European Court of Human Rights on behalf of Slovenia expires on 31 October 2015. The selection process for new ECtHR judge on behalf of Slovenia has already started. Here is a note on the on-going selection procedures.