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 European Court of Human Rights (“ECtHR”) unanimously ruled that the Bosnia and Herzegovina Constitutional Court had not violated the applicant’s right to freedom of expression by removing him from his office as a constitutional judge. The applicant, during his judicial mandate, wrote a letter to the then prime minister stating that he was at the disposal of the prime minister. The letter was published by local media and it was also revealed that the applicant had had close ties with the executive branch of government. The applicant also gave two interviews and had held a press conference without the permission of the Constitutional Court. The Constitutional Court decided to remove the applicant from the office for violation of the Court’s Rules. The ECtHR ruled that the applicant as a judge had been obliged to show restraint in exercising his freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question. The Court also reasoned that the removal from office was primarily based on the applicant’s inability to perform his judicial function impartially and on the damage that he had done to the Constitutional Court’s reputation, and not because of his publicly made statements.
The case concerns the dismissal of the Constitutional Court of Bosnia and Herzegovina (CCBH) Judge Krstan Simić (the applicant) from his office. Before his judicial role, he was a vice-president of a major political party (Alliance of Independent Social Democrats: “SNSD”) and a member of the National Assembly of the Republika Srpska (the parliament of one of the two constitutive entities of B&H).
On November 30, 2009 a local non-governmental organization informed the CCBH of a letter (and sent three pages thereof; one page was missing) which had been written by the applicant and sent to the president of the SNSD and the then prime minister of the Republika Srpska (one of the two constitutive entities of Bosnia and Herzegovina). The letter was not dated but it was later established that it had been written in May 2009. The applicant admitted that he did write it, but privately, as a friend of the prime minister and that he had not given his consent for that letter to be disclosed.
The applicant discussed the work of the CCBH in the letter, offered his services to the prime minister and appraised the work of a certain female jurist, and recommended her for a certain employment position in the Republika Srpska Government. In particular, he wrote: “in any event, I am always at your disposal but in the hustle and bustle that surrounds you I am afraid that you do not use my experience and opportunities sufficiently enough. My attitude is not to impose as I am aware of the problems you are in” [para. 6].
Subsequently, (at the end of 2009 and the beginning of 2010) the letter was published in local media. Simić gave two interviews to the local magazine (“Slobodna Bosna”) and stated that he would publish information about criminal activities and corruption inside the CCBH and ties of local politicians with judges of the named court. On January 8, 2010, the applicant held a press conference in Banja Luka during which he had commented on the letter and the impartiality of the Constitutional Court.
After receiving the letter from an NGO, the CCBH initiated a procedure against the applicant at the plenary session. Before reaching its final decision, the Court held several sessions. It gave Judge Simić a chance to present his defense. He used the opportunity to submit his written submissions regarding the letter. The CCBH asked several persons and institutions to give certain evidence to the Court. After the evidence was gathered, “the Proposal for Dismissal was communicated to Judge Krstan Simić on March 8, 2010. However, Judge Simić failed to submit his written statement in response within the given time limit of 14 days” [para. 14.].
On March 25, 2010, the Constitutional Court resumed the plenary session and concluded that the applicant should enjoy a fair trial as prescribed by Art 6 of ECHR. The Court noted that there was no provision for a procedure for dismissal of a CCBH judge and therefore described this process as an ad hoc procedure. The applicant attended the session and requested more documentation and the CCBH granted the request. The extraordinary plenary session continued on May 8, 2010 but the applicant chose not to attend it. The Constitutional Court held unanimously that the applicant had breached the Rule 94 (2) of its Rules by knowingly damaging the reputation of the Constitutional Court and the reputation of a judge and decided to remove him from office. By virtue of Article VI of the Constitution, that decision was final and binding. All the judges of the CCBH (except the applicant) unanimously decided to remove the applicant from the office. Additionally, the Court relied on Rules 97 and 101. Rule 97 provides that the position of a judge shall be incompatible with a membership in a political party or a political organization in Bosnia and Herzegovina, while Rule 101 provides that a judge may be dismissed from office before the end of his or her term if he or she fails to perform the function of a judge under Rule 94. The second paragraph of this Rule gives the mandate to the Constitutional Court to establish the existence of reasons referred to in paragraph 1 of the Rule and the Constitutional Court is required to dismiss the judge from office based on the consensus of other judges and also to inform the body which elected that judge.
The CCBH stated that “in accordance with the constitutional principle of the rule of law, the Constitutional Court must be an independent and impartial constitutional authority. That, in principle, primarily defines its relation to the executive authority. The independence and impartiality of the Constitutional Court imply that its judges are free, that they do not have to be accountable to anyone, and that they are not bound by anyone’s instructions. […] Furthermore, it is not only required that the judges of the Constitutional Court are truly independent but also to appear to be so” [para 14].
The CCBH went further and pointed out close ties between the applicant and the executive governmental branch in Republika Srpska. It stated: “it clearly follows from the contents of the letter that the president of the SNSD, Mr. Milorad Dodik, had been in contact with Judge Krstan Simić […] even before the controversial letter was ever written. […] Judge Simić states in his letter that he is ‘always at disposal’ of the president of SNSD, offering him openly ‘his experience and opportunities’. Moreover, his letter contains an unsolicited request for a higher degree of cooperation […] In addition, Judge Simić openly discusses the possibility of employing someone from the SNSD personnel in the executive authorities of the Republika Srpska […] According to this, Judge Simić is in the habit of giving advice to the officials of the executive authorities of one of the Entities” [para. 14]. The Court concluded that such ties were not compatible with the function of the CCBH and its judges. Thus, there was a breach of Rule 94 (2).
Regarding the press conferences, the CCBH stated that every judge by accepting the role, accepts certain restrictions in terms of public appearances among others. The goal of such restrictions is to protect the integrity of the judiciary and the public interest – the confidence of the public in respect of the judiciary and its independence and impartiality, the integrity, reputation and honor of judges. Judge Simić’s close political alliances discredited the CCBH. He did not try to resolve the alleged issues through prescribed procedures before the Constitutional Court or other state institutions but acted on his own. Thus, the applicant had consciously overstepped the allowed restriction on the freedom of expression of a judge.
The CCBH’s decision was not served on the applicant but was published in the official gazette. The applicant unsuccessfully tried to annul the decision before the State Court of Bosnia and Herzegovina. After both chambers of that court had decided that the court lacked jurisdiction over the case, the applicant lodged an application before the European Court of Human Rights (ECtHR).
The ECtHR had to decide if the CCBH decision on the applicant’s dismissal from his post violated Arts. 6, 10, and 13 of ECHR.
Regarding freedom of expression, the ECtHR found that the case was ratione materiae compatible with Art. 10 of ECHR since the applicant argued that his removal from the office was in response to statements he made.
The Court emphasized two general remarks at the beginning. Firstly, it mentioned that Art 10 of ECHR “applies also to the workplace, and that civil servants, such as the applicant, enjoy the right to freedom of expression” (quoted, e.g. Baka v Hungary, App. No. 20261/12 (2016) § 140). Secondly, the ECtHR observed the obligation of civil servants: “the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion (Ahmed and Others v. the United Kingdom, App. No. 22954/93 (1998), § 55)” [para. 32].
The Court then turned to the justice system emphasizing that it “must enjoy public confidence if it is to be successful in carrying out its duties”. Thus, “authority of the judiciary includes, in particular, the notion that the courts are, and are accepted by the public at large, as being the proper forum for the settlement of legal disputes”. The ECtHR cited the case of Baka v Hungary, App. No. 20261/12 (2016) (§ 164) that “public officials serving in the judiciary […] should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question” [para. 33].
The ECtHR noted that the applicant had held an unauthorized press conference and that he criticized the work of the CCBH in two interviews that he gave to a local magazine, without providing any evidence supporting his allegations [para. 34].
The Court noted “that the applicant was removed from office for damaging the reputation of the Constitutional Court and the reputation of a judge, thereby failing to perform his function. It thus considered that the Constitutional Court’s decision to remove the applicant from the office of a judge essentially related to his ability to exercise his functions, that is, to the appraisal of his professional qualifications and personal qualities in the context of his activities and attitudes relating to the Constitutional Court” [para. 35]. The ECtHR found that the main reason for removal from office was the disputed letter (the contents of the letter had undoubtedly given rise to reasonable suspicion as to his impartiality and independence), and the behavior incompatible with the role of a judge. In that respect, the ECtHR clearly distinguished this case from any similar, notably from Baka v Hungary, App. No. 20261/12 (2016) (§§ 151-152) and Kudeshkina v. Russia, App. No. 29492/05, (2009) (§§ 79-80) cases, “in which the decisions to remove the applicants from office were prompted by the views they had publicly expressed and therefore constituted an interference with their right to freedom of expression” [para. 35].
The Court heavily relied on the CCBH reasoning by saying that “the Constitutional Court examined the applicant’s complaint under Article 10 and gave a detailed and extensively-reasoned decision. Its reasoning is capable of supporting the conclusion that the applicant’s actions had seriously undermined the authority of the Constitutional Court and public confidence in the judiciary as a whole” [para. 36].
The complaint under Art 10 of ECHR was therefore declared manifestly ill-founded and the same applied to the complaints under Arts 6 and 13. Hence, the application was declared to be inadmissible.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression since there was no violation of freedom of expression.
This is one of the first, if not the first case before the ECtHR, where a former judge of a constitutional court appealed his removal from the office due to his public statements and ties with the executive branch of government. The European Court emphasized that the importance and impression of judiciary independence prevail over the freedom of expression of public servants, i.e. judges. Nevertheless, one might think that the court’s decision does have certain deficiencies, not in the outcome, but its reasoning.
Firstly, one could argue that the ECtHR omits to explicitly state that it is not allowed in any case for a judge to state that she/he is at disposal for a prime minister. The separation of powers principle, which is a cornerstone of every democratic society, requires this.
Secondly, the ECtHR did not consider (or it cannot be seen from the decision) that no law prescribes the procedure for removal of CCBH judges from their office. The CCBH itself admitted this: “the procedure for dismissal of a judge of the Constitutional Court may be defined as an ad hoc procedure of a sui generis nature, for which there are no detailed Rules on how to conduct the procedure” [para. 14]. The ECtHR did not assess this, namely whether this procedural deficiency affected the issue of the interference legality on the applicant’s freedom of expression. The question could have been: is it enough for the sake of a legality issue within Art 10 of ECHR to prescribe only substantive rules? Can the legality condition be satisfied without prescribed procedure? The applicant breached the international standards of the independent judiciary, no doubt in that. Also, he enjoyed a fair trial; he had all the available defense tools at his disposal. Still, these issues are separate from the issue of the tripartite test, which comes first. One could assume that the ECtHR intentionally avoided addressing this issue. Nevertheless, maybe, the ECtHR could have invoked Art 17 of ECHR, by stating that the applicant abused his rights (at least of Art 10 of ECHR) or that the applicant’s statements are not covered by the scope of Art 10 of ECHR (like e.g. hate speech or holocaust denial). Thus, the effect would have been the same, but the rationale would have been much clearer.
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