Case Summary and Outcome

The Constitutional Court of Bosnia and Hercegovina (CCBH) found a violation of freedom of expression in a case of an appellant (a prosecutor) subjected to disciplinary sanctions for using harsh words against a judge in a court proceeding in which the appellant was a party in his private capacity. The appellant, in his appeal on a decision regarding a court’s fee, wrote that the judge should pay the fee since the judge’s decision was unfair, illegal and incomprehensible. The High Judicial and Prosecutorial Council (HJPC) opined that such statements breached the rules on protection of judiciary and preservation of dignity of prosecutorial function. Hence, the appellant was sanctioned by a public warning. Yet, the CCBH found such a sanction not to be necessary in a democratic society since the appellant acted in his own capacity representing his interests. Moreover, the CCBH believed that the words used were not offensive towards the acting judge nor the judiciary.

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Facts

The appellant (B.B.) is a public prosecutor and he was a party in his private capacity in a court proceeding before a court in Banja Luka (Bosnia and Herzegovina). The appellant was obliged to pay a court’s fee so he filed an appeal expressing dissatisfaction with the work of a proceeding judge and his decision. In particular, the appellant wrote the following:

“Given that the entire course of the civil proceedings was very strange and unusual and that the decision of Judge Igor Marić is unfair, illegal and incomprehensible, I suggest that Judge Igor Marić pay the fee (…) such a decision of the judge made in the proceedings can be considered an attack on the prosecution system who is on the front line of defense against crime”.

The Office of Disciplinary Prosecutor of the High Judiciary and Prosecutorial Council (HJPC) initiated a disciplinary proceeding against the appellant for violating the rules regulating the behavior of prosecutors.

The First-instance Commission upheld the Disciplinary Prosecutor’s motion and sanctioned the appellant for breaching the provisions of Code of Prosecutorial Ethics (Sections 4.1. and 4.3) and rules of the HJPC Act (Article 57 (22)). Namely, albeit the appellant, as all other prosecutors, enjoys freedom of expression, prosecutors must preserve the dignity of their function and independency of judiciary. The appellant “had to refrain from writing the disputed appeal statement and express his dissatisfaction with the decision in question in a way that is “appropriate for the holder of a judicial office.” According to the reasoning of the First Instance Commission, professional conduct requires judicial office holders to avoid any activity that could jeopardize their service and trust in the judicial system. In this regard […] the appellant, having written a […] comment on the decision of the Basic Court in Banja Luka, must have been aware of the weight of those allegations, as well as their implications for the reaction of both Judge Marić and the Basic Court and the District Court in Banja Luka, in terms of undermining trust in the integrity and independence of the Basic Court in Banja Luka.” [para. 8] Hence, the Commission sanctioned the appellant by the public warning.

The appellant appealed to the Second-instance Commission but to no avail. Then, he filed an appeal to the HJPC which denied the appellant’s claims. The HJPC aligned with the lower instance, so the appellant lodged the constitutional appeal (an appellation) to the Constitutional Court of Bosnia and Hercegovina (CCBH).

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Decision Overview

The main issue before the Constitutional Court was whether the imposed disciplinary sanction infringed the appellant’s freedom of expression. The appellant relied on the right to a fair trial (Article 6 of the European Convention on Human rights), but the CCBH, following a principle iura novit curia, decided to examine the case under freedom of expression (Article 10 of the ECHR and Article II/3h) of the Constitution Bosnia and Herzegovina).

Beside the provision on freedom of expression, the relevant provisions were those of the HCJP Act and Code of Prosecutorial Ethics.

Article 57 (22) of the HCJP Act stipulates:

“Disciplinary offenses of prosecutors include:

[…] behavior in the court or prosecutor’s office and outside the court or prosecutor’s office that harms the reputation of the prosecutor’s office”

Sections 4.1 and 4.3 of the Code of Prosecutorial Ethics read as follows:

“4.1. As a subject of constant public scrutiny, a prosecutor shall freely and willingly accept any restrictions imposed by the office he/she holds.
[…]
4.3. A prosecutor, like any other citizen, is entitled to freedom of expression, thought, belief, religion, association and assembly, but in exercising such rights, a prosecutor shall always conduct himself or herself in such a manner as to preserve the dignity of the prosecutorial office and the impartiality and independence of the judiciary”.

The CCBH opined that the interference with the appellant’s freedom of expression was in accordance with the law (HJPC Act and Code of Prosecutorial Ethics) and pursued a legitimate aim (protection of judiciary). Thus, it was open to elaborate on the issue of necessity – whether the interference was necessary in a democratic society.

The court relied on the European Court of Human Rights (ECtHR) judgment in the case of Simić v. Bosnia and Herzegovina, where the European court found violation of freedom of expression of an attorney that had been sanctioned by national authorities for allegedly disrespecting and insulting a judge. The ECtHR in that case believed that the appellant had used unusual or even sarcastic language in order to defend the interest of his client, but such language was permissible.

Unlike the Simić case, the appellant himself was a party in a court’s proceedings; which is even more important for the protection of free speech. “Although the Code of Prosecutorial Ethics [did] not distinguish between the behavior of the prosecutor on duty and in private life”, the CCBH considered “that it [was] quite natural and that there […] inevitably [was] a certain difference in the way of communication when a prosecutor or judge acts as an official, in relation to the way of communication when they are acting as a private persons, and particularly when they appear before the court in a private capacity, as a party in a civil or other procedure.” [para. 37] This difference was not considered at all by the HJPC in the disciplinary proceedings.

Next, the CCBH considered whether the dignity of a prosecutorial and judiciary function was indeed violated. The appellant acted in his private capacity representing himself in the process. “It was natural to except that he would want to effectively represent himself.” [para. 38] The CCBH once again invoked the ECtHR’s opinion in the Simić judgment where the court “emphasized that the rights of the parties in the proceedings should have been ‘vigorously defended’, which is also applicable to the appellant in the specific case, who cannot be deprived of the right to ‘vigorously defend his rights’ in his private capacity as a party to the proceedings trying to obtain a court decision in its benefit.” [para. 38] It was important to note that the appellant’s expression was disseminated within a court (in the appeal), not through media.

Regarding the language used in the contested appeal, the CCBH stressed that the appellant used words like “unjust, illegal and incomprehensible” characterizing as such the court decision he had appealed. Illegality is one of the mechanisms to render a judgment invalid, while terms unjust and incomprehensible are not offending.

The CCBB supported the position of the HJPC that judges and prosecutors have a key role in ensuring that the courts enjoy public trust. “However, in order for the public to have confidence in the judiciary, [the public] must at the same time have confidence that the judiciary will provide the parties in the proceedings with efficient and fair representation in order to protect their own interests.” [para. 40]

Bearing in mind all the above-mentioned, the CCBH ruled that the interference with the appellant’s freedom of expression was not necessary. Thereby, there was violation of this freedom.

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