Former Strasbourg judge wins landmark dismissal case

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 ?

“When the Birches Up There are Greening”

The European Court of Human Rights has recently found that application in the case of Marta Jelševar and others v Slovenia (47318/07) concerning the alleged violation of Article 8 of ECHR is manifestly ill­-founded and must declared inadmissible. The facts of the case were as follows :

In 1998, B.M.Z. self-published a novel titled ‘Ko se tam gori olistajo breze’ (When the Birches Up There are Greening) and subtitled ‘From the Golden Tales of Depala Vas’, in which she described the life story of a woman from the Slovenian countryside who emigrated to the United States of America at the beginning of the 20th century, married a fellow Slovenian by the name of Brinovc and subsequently returned home to take over the family farm, trade in fruit and vegetables and raise a family. The main character, Rozina, was depicted as a lively, ambitious and resourceful woman. However, the book also described that she used sex to get her way with her husband, brewed and sold illegal alcohol during Prohibition in the United States, and valued money over her children. Rozina was a devoted Catholic, often conversing with the Virgin Mary, and the book concluded with the depiction of her death as a surreal allegory of her assumption into heaven, assisted by the Virgin Mary. (para. 4 of the judgment)

The applicants claimed that the novel violated their right to respect for their private and family life as it seemingly portrayed the scenes from their family life. More specifically, they claimed that the writer, Breda Smonikar, overstepped her freedom of artistic expression. The Court concluded that :

finds it important to note, as did the Constitutional Court, that the book at issue was written not as a biography but as a work of fiction and, as such, would not be understood by most readers as portraying real people. In this connection, the Court would emphasise that even the applicants’ family acquaintances, which perceived certain similarities between the literary characters and, in particular, the applicants’ mother, mostly denied the possibility that the character in the book represented a truthful depiction of the actual person concerned (footnotes omitted, para. 38).

This decision was as straightforward as it gets. Artistic expression protects fictional works not illustrating scenes from real life. What is surprising, that it took the European Court more than 6 years to deliver it taking into consideration that the Constitutional Court of Republic of Slovenia delivered its decision already on 12 October 2007.

Judgment againts Switzerland on the denial of Armenian Genocide

The European Court of Human Rights has just before Christmas delivered a very controversial decision in Perinçek v. Switzerland (application no. 27510/08) concerning the denial of Armenian genocide. The Court did not find that Mr Perinçek abused his rights under Article 17 of ECHR and held that Switzerland violated Article 10 by sentencing him to pay a fine. The Court concluded that:

»129.  Compte tenu de ce qui précède et notamment à la lumière des éléments de droit comparé, la Cour considère que les motifs avancés par les autorités nationales pour justifier la condamnation du requérant ne sont pas tous pertinents et, considérés dans leur ensemble, s’avèrent insuffisants. Les instances internes n’ont pas démontré en particulier que la condamnation du requérant répondait à un « besoin social impérieux » ni qu’elle était nécessaire, dans une société démocratique, pour la protection de l’honneur et les sentiments des descendants des victimes des atrocités qui remontent aux années 1915 et suivantes. Les instances internes ont donc dépassé la marge d’appréciation réduite dont elles jouissaient dans le cas d’espèce, qui s’inscrit dans un débat revêtant un intérêt public certain.«

This decision is comparable to the case of Garaudy v. France the author of “Fundamental myths of modern Israel”, where author was sentenced to a suspended prison sentence and fined for denying crimes against humanity and the Holocaust (no. 65831/01, 24. 6. 2003, pp. 2–12) The Court stated that “denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order” (Ibid., para. 23). Judges Vučinić and Pinto de Albuqueque noted in their partially dissenting opinion that that “Dans cette mesure, le requérant a agi avec le même dolus inacceptable que l’avait fait M. Garaudy. Il a même agi de manière plus répugnante encore, en s’identifiant au personnage qui, selon les juridictions militaires turques compétentes, avait fomenté le génocide des Arméniens …” (para. 25).  It would be interesting why the Court has decided to depart from its well-established law on hate speech and, particularly why denial of the Armenian genocide which is a historical fact was not considered as the violation of Article 17 of ECHR on prohibition of abuse of rights.