Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Mixed Outcome
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The European Court of Human Rights (ECtHR) ruled that the Bulgarian authorities violated Article 10 of the European Convention on Human Rights concerning a judge from Sofia, Bulgaria, accused of misconduct and facing disciplinary proceedings. The Applicant judge claimed violations of Articles 6 (right to a fair trial), 8 (right to respect for private and family life), 10 (freedom of expression), and 18 (limitation of rights for improper purposes) of the Convention. The ECtHR found no violation of Article 6, stating the disciplinary proceedings and composition of the disciplinary college did not breach her rights. However, it found violations of Article 10, as the proceedings were seen as politically motivated and aimed at stifling her criticism of the judicial system. Additionally, the ECtHR held a violation of Article 18, ruling that the disciplinary measures were primarily intended to punish and intimidate her for her critical stance, rather than ensuring compliance with case deadlines. The ECtHR ordered the Bulgarian authorities to pay compensation to the judge.
The case concerns a judge born in 1972 who resides in Sofia. The Applicant has been serving as a judge in the criminal chamber of the Sofia City Court since 1999, handling serious crimes and misdemeanors as a court of first instance and also serving as an appellate body for minor offenses. In 2008, the European Commission issued a critical opinion regarding Bulgaria’s judicial system’s capacity to combat corruption and organized crime. In October 2009, the Applicant was elected as the president of the Union of Judges of Bulgaria (UJB) and publicly criticized the actions of the Superior Council of the Judiciary (CSM) regarding the appointment of court presidents and the government’s policy on judicial matters. The UJB raised concerns about the appointment of a judge with suspected corruption as the president of the Sofia Court of Appeal.
During late 2009 and 2010, the UJB, led by its president, made public declarations and denounced statements made by the Minister of the Interior, which the UJB believed undermined public confidence in the judiciary and threatened its independence. The UJB’s objections were fueled further when the Minister publicly held the courts responsible for murders and suggested a senior magistrate had links to a criminal organization. In September 2010, the President of the Sofia Court of Appeal alerted the CSM’s Inspector General about pending cases from the Sofia City Court that had not been made public, hindering their examination by the Court of Appeal. An inspection revealed delays in court proceedings and problems with the timely production of acts by some judges, including the Applicant.
In June 2011, disciplinary proceedings were initiated against the Applicant based on complaints of conflicts of interest and delays in legal proceedings. The subsequent inspection revealed that the Applicant had the highest number of delayed cases, with reasons for judgments being issued with significant delays, some exceeding three years. The disciplinary college found the Applicant to have demonstrated “non-systematic compliance with prescribed deadlines” and recommended a 15% reduction in her salary for two years. The CSM adopted the proposal and imposed a disciplinary sanction.
The Applicant filed an appeal against the decision, and the SAC initially annulled the disciplinary action. However, upon appeal by the CSM, the SAC reversed its decision and upheld the disciplinary action. The Applicant also challenged her dismissal by the CSM, but the SAC rejected her appeal and upheld the dismissal decision, finding her objections unfounded.
The disciplinary proceedings were reopened, and the Disciplinary College proposed a new sanction of a 25% salary reduction for two years. The CSM deliberated and imposed the penalty of demotion to a lower court for two years. The Applicant appealed this decision, seeking annulment and suspension of the sanction’s execution, but her requests were rejected by the SAC. On appeal, the SAC partially granted the Applicant’s appeal, reducing the duration of the demotion sanction to one year. The SAC considered factors such as the Applicant’s workload, secondment to the Institute for the Training of Magistrates, and participation in various activities. The SAC also noted the pressure exerted on the CSM by non-governmental organizations and media, raising questions about the transparency and motivations behind their support for the Applicant.
Both the Applicant and the CSM appealed this decision to the SAC, which upheld the demotion sanction for two years. Two judges expressed dissent, citing procedural deficiencies, lack of reasoning, and the violation of general principles in the CSM’s decision. The case also briefly mentions defamation proceedings initiated by the Applicant against the Minister of the Interior, which concluded with the Minister’s acquittal. The proceedings faced delays, changes in designated courts, and suspensions due to the minister’s immunity as a Member of Parliament.
President Eicke, Justice Vehabovic, Justice Kucsko-Stadlmayer, Justice Vilanova, and Justice Guerra Martins delivered the majority decision, in which they found no violation of Article 6 but did find violations of Articles 10 and 18 of the Convention. On the other hand, Justice Harutyunyan and Justice ad hoc Salkova had jointly written a partially dissenting opinion. The main issue brought before the ECtHR was whether the Applicant’s rights were violated under Articles 6, 8, 10, and 18 of the Convention.
A. Violation of Article 6 of the Convention
The Applicant contended that there were issues of impartiality concerning the disciplinary college and the CSM. Regarding disciplinary procedure no. 9/2011, the Applicant contended that the composition of the disciplinary college, which included two prosecutors and an investigator, violated the law on judicial power. She also asserted that her failure to appear before the CSM amounted to a breach of her rights of defense. [para. 95] In the case of disciplinary proceedings no. 3/2012, the Applicant alleged a lack of impartiality due to the rapporteur’s support for the appointment of the President of the Sofia City Court. [para. 96] The Applicant also raised concerns about the impartiality of the Supreme Administrative Court (SAC) in the legal proceedings. [para. 96] According to her, the judges, except for the rapporteur, were appointed by the president of the court, who was closely associated with the executive power.
Additionally, the Applicant questioned the impartiality of the CSM. [para. 98] She referred to a judgment of the SAC that highlighted the CSM’s reaction to criticisms raised by the Union of Judges of Bulgaria (UJB), suggesting partiality. The Applicant contended that the CSM violated the secrecy of disciplinary proceedings by raising the disciplinary proceedings against her at a public meeting shortly after her dismissal on disciplinary grounds. She also contended that only six members of the CSM were judges elected by their peers, contrary to the recommendations of the European Charter on the statute for judges. Furthermore, the Applicant raised concerns about the refusal of the SAC to suspend the execution of the decision to revoke her and contended that the SAC did not adequately respond to her essential arguments. [para. 101] She claimed that the disciplinary proceedings against her were tendentious and politically motivated and that the factors to be considered in determining the disciplinary sanction were not properly taken into account. The Applicant believed that the SAC failed to consider factors such as the number and complexity of the cases she handled, the quality of her work, and her additional assignments.
The State contended that the Applicant had the option to appeal to the Supreme Administrative Court to challenge the disciplinary sanctions against her, which provided a court with sufficient jurisdiction and guaranteed a fair trial. The Supreme Administrative Court could review both factual and legal aspects of the decisions made by the CSM (Superior Council of the Magistracy), including the assessment of compliance with procedural time limits and the validity of reasons given by the applicant to justify any non-compliance. While the administrative jurisdiction could not replace the CSM’s assessment in matters of opportunity, it had the power to annul a decision and send the case for a new examination. The government asserted that the disciplinary procedure ensured an adversarial process before a panel of three CSM members, ensuring fairness. They contended that the Supreme Administrative Court was impartial and independent, and there was no concrete evidence to doubt the personal impartiality of the magistrates involved.
The Court begins its assessment by examining the complaints made by the applicant in two stages: first, it looks at the proceedings before the CSM (disciplinary body), and then it evaluates the proceedings before the Supreme Administrative Court. On the issue of fairness of the proceedings before the CSM, the ECtHR noted that the CSM is a special judicial body, not considered a traditional court, but it exercises full jurisdiction to decide on disciplinary matters concerning magistrates. The applicant had raised concerns about impartiality within the CSM, particularly regarding the disciplinary college and the lack of a personal appearance before the plenary session of the CSM. However, the Court found it unnecessary to determine whether the proceedings before the CSM complied with Article 6 of the Convention, as it considered the issue in light of its conclusions on the Supreme Administrative Court’s compliance.
On the issue of the extent of the review exercised by the Supreme Administrative Court over the decisions of the CSM, the ECtHR observed that the Supreme Administrative Court had sufficient jurisdiction to review relevant facts and the legal classification of the applicant’s actions as misconduct. It could not determine the appropriate sanction, but it could verify compliance with legal criteria for proportionality. If necessary, defects in the CSM’s procedure could be corrected in the context of legal proceedings before the Supreme Administrative Court.
On the issue of the alleged lack of independence and impartiality of the Supreme Administrative Court, the ECtHR rejected the claim that the court lacked subjective impartiality, as the applicant did not challenge the judges’ personal bias or seek their disqualification. In addressing the issue, the ECtHR emphasized that the court’s decision to assign the case to the Sixth Chamber was a result of its organizational powers and had been considered lawful by a panel of five judges. The court reiterated its reluctance to interfere with national courts’ interpretations of domestic law, as long as they were not arbitrary or manifestly unreasonable, which the allocation decision was not found to be. Moreover, the ECtHR reasoned that the applicant had opportunities to challenge decisions before different court formations, making it unlikely that the allocation affected the independence or impartiality of the proceedings.
Regarding the appointment of judges in panels of five, the ECtHR acknowledged that, according to domestic regulations, only the judge-rapporteur was required to be appointed randomly, while the other judges were not subject to random designation. The court asserted that the lack of random designation for all judges fell within the state’s margin of appreciation, as different countries may adopt varying allocation systems. The ECtHR rejected the claim that the appointment process was biased due to the President of the Supreme Administrative Court, finding no evidence to support this assertion. Ultimately, the ECtHR concluded that there was no lack of independence and impartiality in the Supreme Administrative Court’s handling of the case, and thus, Article 6 of the Convention had not been violated.
On the other issue of fairness of the proceedings before the Supreme Administrative Court, The Court found that the Supreme Administrative Court provided sufficient reasoning for its decisions, addressing the main arguments raised by the applicant. The Court did not examine alleged errors of fact or law committed by the courts, as long as there were no “profound and persistent” divergences in the case-law of a supreme court.
The Court concluded that there was no violation of Article 6 of the Convention in this case.
B. Violation of Article 8 of the Convention.
The Applicant contended that the disciplinary proceedings against her were unjustified and politically motivated, resulting in a significant impact on her private life. The provisional execution of her dismissal caused financial distress, depriving her of work and income for about a year. She also disputed the government’s claim that being a public figure requires tolerating more criticism, asserting that criticism of judges is particularly serious as it can cast doubts on their independence. Additionally, she alleged that the publicity surrounding the disciplinary proceedings damaged her reputation, contrary to the government’s assertion that the coverage was balanced and had no severe impact on her professional standing.
On the other hand, the government acknowledged that the disciplinary proceedings did interfere with the applicant’s right to respect for private life, but they contended that the public nature of judicial proceedings serves to ensure transparency in the justice system and build public trust. The government justified the publicity surrounding the case due to the Applicant’s public figure status and her role as a trade union president, which generated significant public interest. They further contended that the disciplinary sanctions aimed to maintain the proper functioning of justice and penalize magistrates who fail to adhere to procedural deadlines. According to the government, the impact of the sanctions on the applicant’s private life was limited, as her reputation was not severely tarnished, and she was able to resume her profession after the dismissal was later annulled.
The ECtHR assessed the applicability of Article 8 of the Convention, which protects the right to respect for private and family life, in a professional dispute involving the applicant, a judge. The ECtHR derived principles from its previous case laws to determine the applicability of Article 8 in such disputes. It clarified that professional disputes are not automatically excluded from the concept of “private life” and that the consequences of disciplinary measures can affect aspects like the applicant’s inner circle, relationships with others, and professional reputation. The Applicant must meet a severity threshold to establish applicability, and the burden of proof lies with them to demonstrate serious repercussions on private life.
Applying these principles to the present case, the ECtHR found that the Applicant’s disciplinary penalties, which included a reduction in salary and later a demotion, did not meet the required severity threshold to trigger the applicability of Article 8. The Court observed that the reduction in income was temporary, and the applicant had the opportunity to receive compensation after the annulment of their dismissal. The legal proceedings were not unduly prolonged, and the applicant was not prevented from carrying out another remunerated activity during the period of dismissal. Additionally, the Court did not find evidence that the disciplinary proceedings or media coverage significantly affected the applicant’s inner circle or professional reputation to reach the level required by Article 8. Consequently, the Court dismissed the complaint as incompatible ratione materiae with the Convention.
C. Violation of Article 10 of the Convention
The Applicant claimed that the checks and disciplinary proceedings against her were a response to her opposition to certain judicial appointments and her criticism of the judiciary’s lack of independence in Bulgaria. She provided evidence, including targeted reports, declarations, and media leaks, to support her assertion of being targeted due to her role as president of the Union of Judges in Bulgaria. Additionally, she contended that the excessive workload intentionally imposed on judges in Sofia discouraged criticism, affecting their freedom of expression. The Applicant disputed the government’s justification that the actions aimed to address delays in judicial proceedings, stating that insufficient steps were taken to alleviate the workload despite its recognition.
The Government contended that the disciplinary sanctions imposed on the Applicant did not interfere with her freedom of expression. The penalties were a consequence of her failure to meet professional obligations, not due to expressing opinions. The checks conducted aimed to improve criminal justice administration, addressing the issue of excessive delays in judicial proceedings. The government claimed that the disciplinary proceedings did not restrict the applicant’s freedom of expression, and she could continue her activities and make public statements. They considered the imposed penalties as proportional to her faults, taking workload and other relevant factors into account. Eventually, the measure of dismissal was annulled, and she remains a judge at present.
The ECtHR examined whether the disciplinary proceedings and sanctions imposed on the applicant, a judge and president of a professional association of judges in Bulgaria, constituted an interference with her freedom of expression. They considered the context in which the proceedings took place, including her public criticism of the judiciary’s appointments and government policies. The Court found prima facie evidence of a causal link between the Applicant’s exercise of freedom of expression and the sanctions imposed. The penalties included dismissal from the bench, which had a deterrent effect on her and other judges’ freedom of expression.
The ECtHR then assessed whether the interference was justified under Article 10(2). It acknowledged the legitimate aim of ensuring the proper functioning of criminal justice but emphasized that restrictions on freedom of expression, especially regarding matters of public interest, must be narrowly interpreted. The severity of the penalties imposed and the procedural safeguards were taken into account. The Court concluded that the disciplinary proceedings and sanctions were not necessary in a democratic society, as they did not convincingly establish a pressing social need and did not meet the requirements for proportionality. The Court found a violation of Article 10 and stated that magistrates can be prosecuted for professional breaches related to their freedom of expression, provided it is not carried out as retaliation for exercising this fundamental right.
D. Violation of Article 18 of the Convention
The Court clarified that Article 18 does not have an independent existence and can only be applied in conjunction with other Convention articles that define rights and freedoms or conditions for their derogation. It also emphasized that Article 18 prohibits restrictions on Convention-protected rights for purposes beyond those provided for in the Convention itself. The Court found that Article 18 can be violated independently if a restriction is imposed for an unconventional purpose not covered by the Convention’s provisions. However, not every restriction failing to fulfill all conditions for legitimacy necessarily raised an Article 18 issue.
The Court referred to previous case law to support its conclusions. It clarified that the presence of multiple aims, some covered by the Convention and others not, should be examined in determining whether a violation of Article 18 had taken place. The Court considered all circumstances of the case, including the nature and degree of reprehensibility of the non-Convention aim, to ascertain whether it was predominant.
In this specific case, the Court found that the disciplinary proceedings and sanctions imposed on the applicant, who was a judge, were not primarily aimed at ensuring compliance with case deadlines. Instead, the Court determined that they served the purpose of punishing and intimidating the applicant due to her critical positions toward the judiciary and executive power. In conclusion, the Court held that there had been a violation of Article 18 of the Convention, taken together with Article 10, based on its assessment of the predominant purpose behind the disciplinary measures and sanctions imposed on the applicant.
In conclusion, the ECtHR declared the complaints based on Articles 6, 10, 14, and 18 of the Convention admissible, except for the complaint under Article 8, which was declared inadmissible. It ruled that there was no violation of Article 6, but there were violations of Article 10 and Article 18, taken in conjunction with Article 10, unanimously. The ECtHR ordered the respondent State to pay the applicant EUR 1,340 within three months, to be converted into the respondent State’s currency at the applicable rate, and any applicable tax.
Dissenting Opinion [ Harutyunyan J. and Salkova J. (ad-hoc)]
Justices Harutyunyan and Salkova disagreed with the majority opinion and firmly believed that there has been a violation of Article 6 of the Convention in this case. They had emphasized the importance of differentiating between issues related to the judge’s disciplinary fault and her right to a fair trial during the appeal against the decision of the Superior Council of the Judiciary. They had contended that to preserve the rule of law and ensure justice’s fairness, national authorities should have avoided any interference as alleged in the case.
In their dissent, the justices highlighted the principles derived from previous case law on Article 6, with a focus on assessing both the subjective and objective impartiality of judges. They had contended that certain verifiable facts had raised suspicions about the objective impartiality of the judicial system in this case. These doubts had been further fueled by various other factors, such as statements made by the Inspector General and members of the Superior Council of the Judiciary, changes in judicial assignments, and the absence of reasonable explanations for certain decisions.
The dissenting justices concluded that all these factors had cast doubt on the legal certainty and had undermined the foundations of justice. They stressed the importance of conducting disciplinary proceedings against judges with fairness, ensuring equal treatment, and respecting their rights. They contended that a stable and independent judicial system was crucial for safeguarding citizens’ rights and upholding the rule of law.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling has a mixed outcome. On one hand, the European Court of Human Rights (ECtHR) found violations of Article 10 (freedom of expression) and Article 18 (limitation of rights for improper purposes) of the European Convention on Human Rights, acknowledging the political motivation behind the disciplinary proceedings against Judge Todorova and the resulting sanctions. This decision reinforces the importance of protecting judges’ freedom of expression and highlights the need to ensure judicial independence from political interference.
On the other hand, the ECtHR dismissed Todorova’s complaints regarding violations of Article 6 (right to a fair trial) and Article 8 (right to respect for private and family life). This aspect of the ruling is seen as a missed opportunity to address broader systemic issues within Bulgaria’s justice system. The Court’s formalistic approach in dismissing certain arguments has raised concerns about its ability to comprehensively tackle the challenges faced by judges and magistrates dealing with political pressure and misconduct within the judiciary. As a result, the ruling may not provide an adequate solution to the underlying problems within the Bulgarian justice system, potentially discouraging other judges from speaking out against improper practices.
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