Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Chamber of the First Section of the European Court of Human Rights (ECtHR) ruled that statements made by senior government officials had prematurely and unfairly influenced public perception of a former politician and businessman’s guilt before a final verdict was reached in his criminal case. The case arose from statements made by the Minister of Justice and the Prime Minister, as well as subsequent comments by other officials, deemed potentially prejudicial to the applicant’s presumption of innocence during the period when the applicant was awaiting the delivery of a judgment in his retrial. While Article 10 was not invoked, the Court acknowledged the importance of freedom of expression and recognized that public officials have a duty to inform the public about ongoing criminal investigations, especially in cases involving serious allegations. However, it emphasized that this freedom must be exercised with discretion and circumspection to respect the presumption of innocence and hence, high-ranking State officials must be careful in their choice of words. In light of the circumstances of the case, the Court found a violation of Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights.
The applicant in this case is Mr. Bavčar, a prominent Slovenian politician who served as both the Minister of Interior and the Minister of European Affairs. After his political career, he transitioned into the private sector but later resigned from his position as the director of one of Slovenia’s largest companies.
On 2 August 2012, the Specialised State Prosecutor brought criminal charges against the applicant and three co-accused individuals, including B.Š, the then-director of Laško Brewery, K.S., a board member of Istrabenz, and N.S., the owner and director of Microtrust d.o.o. On 19 July 2013, the Ljubljana District Court rendered a judgment, finding the applicant guilty of inciting abuse of a position or rights when carrying out an economic activity and money laundering under relevant articles of the Criminal Code. The court established that the applicant received 21,680,000 euros in his bank account through illegal means and disposed of these funds. The applicant and his co-defendants were found guilty, and he was sentenced to seven years’ imprisonment.
On 30 May 2014, the Ljubljana Higher Court upheld the applicant’s main sentence but quashed monetary fines and reduced the prison sentence of one co-defendant. On 12 September 2014, the applicant filed an application for the protection of legality with the Supreme Court, challenging his conviction. On 17 September 2014, the applicant received a summons to serve his prison sentence. He filed an application to stay the execution of the prison sentence due to severe and lasting heart problems. The courts repeatedly rejected the applicant’s applications for a stay based on his deteriorating health. He also filed a constitutional complaint challenging these rejections. On 9 February 2015, the applicant underwent bypass surgery due to his health condition.
On 18 June 2015, the Supreme Court quashed part of the Higher Court’s judgment relating to the applicant’s criminal liability, leading to a retrial in the Ljubljana District Court. On 11 September 2015, the proceedings concerning the execution of the prison sentence were terminated as the convictions had been quashed. In the retrial, on 5 September 2016, the Ljubljana District Court acquitted the applicant of one criminal offense and found him guilty of money laundering related to an offense committed between 2007 and 2008. The court found that the money was derived from an illegal transaction involving shares and that the applicant knowingly received and further concealed the money’s illegal origin. The applicant was sentenced to five years in prison, his real estate was confiscated, and he was ordered to pay restitution of the illegally acquired property. On 27 September 2016, media outlets published footage of the applicant playing basketball, suggesting he was not as ill as claimed.
On the same day, the Minister of Justice gave an interview in which he criticized the handling of the case and raised questions about the applicant’s health. The interview’s headline read: “Mr. Klemenčič: If the Bavčar case becomes time-barred, a lot of people will have to answer [for that].” Notably, the Minister’s statement included the following passage: “If this case becomes time-barred, let me say here: I have made a commitment many times on your show, and I hope that I have delivered. Here I will do everything possible to make heads roll. As you said, and we are both lawyers, Mr. Slak, [I will do this] not because someone should be convicted or acquitted …, but because the time-barring of any court case, and we have too many of them [time-barred cases], is the worst possible result. I believe this will not happen, but if it does … I think a lot of people will have to answer [for that].”
Following the Minister’s interview, the President of the Ljubljana District Court, Mr. Marjan Pogačnik, held a press conference and criticized the Minister, suggesting that the Minister should “stick to his gardening” and refrain from interfering with the judiciary’s independence. Allegedly, Mr. Pogačnik also made the following statement: “if the Minister wants heads, I put mine on a plate.” He claimed that the complexity of the case had delayed the completion of the judgment. On November 14, 2016, during a parliamentary debate, the Prime Minister remarked: “Therefore, our government is preventing something as no [government] has done before, as you said, that those who should probably be serving a prison sentence would not be playing basketball.”
On 21 November 2016, the applicant appealed the first-instance judgment on multiple grounds, including the alleged violation of the right to an independent and impartial court. On 12 April 2017, the Higher Court dismissed the applicant’s appeal, upholding the conviction and sentence. The applicant lodged an application for the protection of legality on 27 June 2017, citing various grounds, including violations of the Constitution and the European Convention on Human Rights. The applicant started serving his prison sentence on 18 September 2017.
On 5 February 2019, the Supreme Court of Slovenia dismissed the applicant’s application, stating that Article 252 of the Criminal Code defined money laundering activities, including the acquisition, storage, and disposal of illegal money. The court emphasized that the purpose of criminalizing money laundering was to prevent the use of money derived from criminal activities within the legitimate financial system. The Supreme Court also clarified that money laundering could be committed with either direct or indirect intent, relying on its own case law and Slovenian Acts on money laundering. It was established that the applicant had acted with direct intent by being aware of the money’s criminal origin and participating in the sale of shares related to the money.
Following the Supreme Court’s decision, the applicant filed constitutional complaints, asserting that he could not have anticipated the evolving case law that broadened the definition of money laundering. He also alleged that the Minister had threatened the Higher Court’s judges, creating political pressure on the judiciary.
On December 12, 2019, the Constitutional Court rejected the applicant’s complaints, affirming that Article 252 of the Criminal Code could reasonably be interpreted to encompass both direct and indirect intent, and this development in case law was consistent with the essence of the offense. The Court emphasized that even with indirect intent, the perpetrator consciously brought about prohibited consequences. Regarding the Minister’s statement, the Constitutional Court referred to the importance of maintaining the appearance of objective impartiality in judicial decision-making. It found that the Minister’s statement did not breach the applicant’s right to an impartial court, as it did not touch upon the applicant’s guilt but rather expressed concern about the time-barring of criminal proceedings. Similarly, the statement of the Prime Minister was deemed not to have affected the applicant’s right to an impartial court. However, one of the judges of the Constitutional Court wrote a dissenting opinion, acknowledging that the impugned statements could affect the determination of the applicant’s guilt.
The applicant completed his prison sentence on 23 June 2021. Subsequently, the applicant lodged the application to the ECtHR alleging the violation of the right to fair trial and the principle of legality.
Justice Alena Poláčková, Lətif Hüseynov, Ivana Jelić, Erik Wennerström, and Davor Derenčinović delivered the majority ruling. Justice Peter Paczolay delivered a separate concurring opinion, and Ad Hoc Justice Vasilka Sanciz delivered a partially dissenting opinion. The primary issue before the Court was to determine whether the domestic decisions violated the Applicant’s right to a fair trial under Article 6 (right to an independent and impartial tribunal and to the presumption of innocence) and Article 7 (legality principle) of the ECHR.
On the violation of Article 6 of the ECHR, the Applicant contended, the Applicant contended that his rights, particularly the presumption of innocence under Article 6 § 2, had been violated. He asserted that the Minister of Justice’s public statement, made with apparent support for his conviction, had prematurely prejudiced his case. The Applicant further maintained that the Minister possessed significant informal influence over the judiciary, and statements from judicial figures supported his claim of undue pressure. In response to the government’s assertion regarding his medical condition, the Applicant argued that he had legitimately requested a stay of his sentence due to a life-threatening medical condition, challenging the government’s assertion that he had manipulated the situation to avoid imprisonment, citing the timing of surveillance footage taken well after his initial application and subsequent recovery from heart surgery. [para. 92-96].
On the contrary, the Government contended that the applicant had misconstrued the Minister’s statements, taking them out of context. They argued that the Minister’s remarks were in response to the release of footage depicting the applicant playing basketball, which had occurred after he had been granted a stay of execution due to a life-threatening medical condition. The Government emphasized that the Minister had explicitly noted during the interview that the applicant was still considered a free individual at that time, as he had only been convicted by a non-final judgment. Furthermore, the Minister emphasized the importance of court decisions being based on merit, the public’s trust in the judiciary, and the integrity of the Slovenian courts. [para. 97-98]
Regarding the Minister’s influence on the judiciary, the Government stressed that the Minister lacked significant means to exert pressure on the courts, as the power to sanction judges and assess their responsibility rested with the independent Judicial Council. The Government pointed out that judges could only be dismissed for disciplinary violations, and the Ministry of Justice had no authority to interfere with a judge’s work on specific cases. The Higher Court, Supreme Court, and Constitutional Court had all distanced themselves from the Minister’s statement, concluding that it did not compromise the independence or impartiality of the courts or infringe upon the applicant’s presumption of innocence. Lastly, the Government raised doubts about the applicant’s medical condition, given his participation in a basketball game approximately a year and a half after heart surgery, questioning the legitimacy of his postponement of the prison sentence. [para. 99-103]
The Court initially reaffirmed the significance of the presumption of innocence as enshrined in Article 6 § 2 of the Convention, emphasizing that it is a fundamental element of a fair trial required by paragraph 1 of the same article. It stressed that the presumption of innocence is violated when judicial decisions or statements by public officials reflect an opinion of guilt before the accused has been proven guilty in accordance with the law. The Court cited several key principles and established case law, including Allen v. the United Kingdom (2013), Deweer v. Belgium (1980), Minelli v. Switzerland (1983), and Matijašević v. Serbia (2006). [para. 104]
The Court also made a distinction between statements reflecting an opinion of guilt and those describing a “state of suspicion.” The former violates the presumption of innocence, while the latter may be acceptable in various situations. [Lutz v. Germany, (1987), and Leutscher v. the Netherlands, (1996)]. Furthermore, the Court acknowledged the importance of freedom of expression under Article 10 of the Convention but noted that this freedom must be exercised with discretion and circumspection to respect the presumption of innocence. [Peša v. Croatia, (2010)]. [para. 105-106].
The Court recognized that public officials have a duty to inform the public about ongoing criminal investigations, especially in cases involving serious allegations. However, it emphasized that high-ranking State officials must be careful in their choice of words to avoid prejudging the accused’s guilt. The Court cited cases where violations of Article 6 § 2 occurred due to imprudent statements made by State officials, including State presidents, prime ministers, ministers of justice, and speakers of parliament (Peša). [para. 106-107]
In applying these principles to the present case, the Court considered the high-profile nature of the applicant’s case and the close temporal proximity between his conviction at the first instance and the statements made by State officials. The Court noted that the Minister of Justice’s statement, including the phrase “I will do everything possible to make heads roll,” triggered reactions from the President of the Ljubljana District Court and the Prime Minister. [para. 109-110]
The Court found that the Minister’s statement, in particular, had the potential to influence public opinion and could have encouraged the belief that the applicant was guilty before a final verdict had been reached. The Court also highlighted the importance of the Minister’s position as the head of the ministry responsible for the proper functioning of the courts. It noted that the Prime Minister’s statement further reinforced the impression of the applicant’s guilt. [para. 113-118]
The Court emphasized that the principle of the presumption of innocence still applied even after the applicant’s conviction in the first instance. It considered the potential impact of the statements on the Higher Court’s decision-making process and the fact that had the Higher Court granted the applicant’s appeal, the case might have become time-barred. [119-124]
In conclusion, the Court held that the cumulative effect of the Minister’s and the Prime Minister’s statements, given their senior positions, could have prejudiced the Higher Court’s decision-making process and encouraged the public to believe in the applicant’s guilt before a final verdict. The Court found a violation of Article 6 § 2 of the Convention, emphasizing that the applicant’s right to be presumed innocent had not been respected. Regarding Article 6 § 1 of the Convention, the Court decided that there was no need for a separate examination since its conclusions on the presumption of innocence under Article 6 § 2 covered the essential aspects of the case.
On the issue of the alleged violation of Article 7 of the ECHR, the applicant contended that the domestic courts’ interpretation of indirect intent (recklessness) for money laundering charges deviated from established domestic case law, which required direct (specific) intent at the time of the offense. The applicant argued that this development in the case law was unforeseeable and inconsistent with the essence of the money laundering offense. He emphasized that the bipartite nature of the offense did not compensate for the absence of direct intent, and his actions did not demonstrate an intention to conceal the money’s illicit origin. The applicant also challenged the Supreme Court’s interpretation of international instruments and comparative case law in this context. He argued that the purpose of concealing the money was a crucial element distinguishing money laundering from lesser offenses and required direct intent. Furthermore, he contested the government’s assertion that the change in case law was foreseeable, as negligence under the law only pertained to the perpetrator’s knowledge of the money’s criminal origin, not their intent to conceal it. [para. 133-137]
On the contrary, the Government contended that Article 7 of the ECHR, safeguarding against arbitrary application of criminal law, allows for judicial interpretation and adaptation of legal provisions within the scope of the criminal provision. They argued that while the applicant’s case law concerning indirect intent had changed after the offense, such an interpretation was consistent with international instruments and comparable case law. The Government emphasized that money laundering could also be committed through negligence, indicating that the evolution of case law was foreseeable, and decisions of the Supreme Court supported the inclusion of recklessness as a basis for conviction under Article 252 of the Criminal Code. [para. 138.-142]
The Court reaffirmed the fundamental principles of legal certainty and foreseeability enshrined in Article 7 of the Convention, as articulated in its Advisory opinion on statutes of limitation in a case involving torture (Armenian Court of Cassation, 2022). It underscored that while legal provisions should be clear, the interpretative nature of law inevitably involves some degree of judicial discretion and adaptation to changing circumstances. The Court emphasized that progressive development of criminal law through judicial interpretation was acceptable as long as it aligned with the core elements of the offense and could reasonably be anticipated. Failure to provide reasonably foreseeable judicial interpretations could result in Article 7 violations, compromising safeguards against arbitrary prosecution and punishment. [para. 143-147]
Applying these principles to the current case, the Court examined whether the domestic courts’ expansive interpretation of money laundering laws, which encompassed indirect intent, was foreseeable and consistent with the essence of the offense. It acknowledged that the applicant had been convicted under the law prevailing at the time but noted the evolution in domestic case law during the period between the commission of the offense and the final judgment in 2023. The Court found that the domestic courts meticulously analyzed this development, drawing on a discernible line of case law and citing constitutional and legal principles. They also considered international and EU materials and comparative law. Consequently, the Court concluded that the applicant’s conviction was foreseeable and in harmony with Article 7, representing a reasonable evolution of case law and interpretation within the boundaries of the offense. [para. 148-150]
In conclusion, the Court determined that the interpretation and application of national law by the domestic courts did not violate the Convention. This decision aligns with its past jurisprudence on foreseeability and legal certainty, exemplified by cases such as Jorgic v. Germany, (2007) and C.R. v. the United Kingdom, (1995). [para. 158]
Concurring Opinio of Justice Peter Paczolay
Judge Paczolay concurs with the Chamber’s judgment, finding the application admissible and determining there was no violation of Article 7 of the Convention. However, he provides a differing perspective on the extent and reasons for the violation of Article 6 § 2, which relates to the presumption of innocence. He emphasizes the need to consider the context and specific circumstances when assessing whether statements by public officials breach the presumption of innocence. Judge Paczolay distinguishes between two potential impacts of such statements: (i) encouraging the public to believe in the guilt of the accused and (ii) prejudicing the decision-making of the judiciary. He argues that the judgment does not adequately differentiate between these impacts. While acknowledging that the Minister’s statements could have encouraged public belief in the applicant’s guilt, Judge Paczolay suggests that they did not necessarily affect the independence and impartiality of the court. He points out that the President of the Ljubljana District Court promptly responded to the statements, asserting the judiciary’s independence and highlighting the separation of powers in a democratic society. Judge Paczolay concludes that the actual impact of the Minister’s statements on the court’s objectivity should have been examined more closely, and he believes that the judgment exaggerates their potential prejudicial effect.
Dissenting Opinion of Ad Hoc Justice Vasilka Sanciz
Ad Hoc Judge Sancin presented a partly dissenting opinion in which he disagreed with the majority’s finding of a violation of Article 6 § 2 (presumption of innocence) in the case. She asserted that there had been no violation of this provision. Judge Sancin emphasized that Article 6 § 2 entails the right of an accused person to be presumed innocent until proven guilty according to the law. He argued that the Court’s role was to assess whether there were non-rectified preconceived ideas of guilt in the domestic judicial decision-making, whether the burden of proof lay with the prosecution, and whether any doubts benefited the accused. According to him, none of these deficiencies were demonstrated in the present case. [para. 1-4]
Judge Sancin went on to discuss the Court’s jurisprudence, asserting that a violation of Article 6 § 2 required not only statements that encouraged public belief in guilt but also proof that these statements prejudiced the assessment of facts by the competent judicial authority. He pointed out that the majority failed to provide sufficient reasoning to demonstrate that the impugned statements had in fact prejudiced the domestic courts in assessing the facts of the case. He argued that the domestic courts examined the applicant’s complaints, and the Constitutional Court, after considering the Court’s jurisprudence, found no basis for a violation of the presumption of innocence. [para 5-8]
Moreover, Judge Sancin contended that the majority’s decision represented a departure from the Court’s established jurisprudence in Article 6 § 2 cases and introduced a new approach to deciding such cases. He suggested that the majority’s approach could effectively deprive the domestic appeal courts of their right to adjudge that there was no violation of Article 6 § 2 domestically and raised concerns about the principle of subsidiarity and the fourth-instance doctrine. Ultimately, he disagreed with the majority’s conclusion that there was a violation of Article 6 § 2 and believed that the domestic courts’ decisions in this case should have been respected. [para 8-12]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling contravenes the freedom of expression at first sight. Yet, freedom of expression is not an absolute right. One of the limits concerns the concept of presumption of innocence. In that manner, this judgment is another valuable piece indicating that public officials should comment on pending trials with great care. As can be seen from the judgment, every word can be decisive and what is more significant is the fact that the ECtHR seeks to analyze the true meaning of words, not their literal meaning. In that aspect, it is essential to note that the ECtHR ruled that some sort of disclaimer (like the Minister did with the statement: “not because someone should be convicted or acquitted, but because the time-barring of any court case …, is the worst possible result”) cannot abolish other words which clearly undermine the presumption of innocence. Accordingly, even though this case is not about Article 10 (freedom of expression) it is important for setting once again limits of public officials in terms of an accused person and his right to be presumed innocent.
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