Access to Public Information, Content Regulation / Censorship, Privacy, Data Protection and Retention
Sarney v. O Estado de São Paulo
Closed Contracts Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Constitutional Court of Bosnia and Herzegovina (“CCBH”) unanimously found no violation of the right to freedom of expression in a case involving a disciplinary sanction against a judge of an ordinary court who publicly disseminated his dissenting opinion in a criminal law case. The local rules allowed for judges to dissent, but they were not allowed to communicate their dissenting opinions to parties of a criminal procedure or to the public. Thus, dissenting opinions were to remain secret. The Court reasoned that even though judges enjoy the right enshrined in Article 10 of the European Convention on Human Rights (“ECHR”), the right to freedom of expression is limited, in particular with maintaining the authority and impartiality of the judiciary.
Milan Blagojević (“appellant”) was a judge of the District Court in Banjaluka and a member of the trial chamber in a criminal case. Before the decision was publicly rendered, Blagojević asked the president of the trial chamber to publicly announce the verdict including Blagojević’s dissent. The president of the chamber refused, warning the Blagojević that making the dissenting opinion public would violate the secrecy of the judicial deliberation and voting. After the president had publicly announced the judgment and the members of the chamber left the courtroom, Blagojević addressed the audience. He said: “I need to say this because of the public and the media present, and that refers to the case that is probably the first in our caselaw, that I have a dissenting opinion regarding the count one of the indictment – aggravated attempted murder. I believe that the accused should have been acquitted on this count, so I would like to inform you that I will submit my dissenting opinion with a full explanation […] I take this opportunity to say that I ask and demand that my dissenting opinion should not be closed in any special envelope because according to the Criminal Procedure Act of Republika Srpska (“CPA”), only the minutes of deliberations and voting are enclosed in a special envelope. In addition, I ask and request that my dissenting opinion be delivered to the parties of this proceeding and the victim” [para. 12]. Later, an online media platform reported that one of the judges dissented and had voted for the acquittal of the accused.
Article 68 paragraph 1 of the CPA stipulates that minutes of the deliberation and voting should be recorded. Paragraph 2 of the same article states that the minutes should contain the course of voting and the final decision. Members of the court’s chamber and the clerk (recorder) should sign the minutes. If dissenting opinions do not constitute a part of the minutes, such opinions should be attached to the minutes of the deliberations and voting (Paragraph 3). Paragraph 4 stipulates that the minutes shall be closed and that the minutes may be inspected only by a panel of a higher court when deciding upon a legal remedy. After inspection, a higher court is obliged to seal the minutes again in a special envelope and indicate on the envelope that the minutes have been reviewed. Further, article 77 of the CPA stipulates that deliberations and voting are held in a secret session, and that only chamber members and a clerk may be present in a room where deliberations and voting take place.
Based on these rules, the disciplinary prosecutor of the High Judicial and Prosecutorial Council initiated the proceedings against the appellant. The first-instance commission (“FIC”) decided that the Blagojević’s acts amounted to disciplinary offenses prescribed by article 56 points 4 and 9 of the High Judicial and Prosecutorial Council Act (“HJPC Act”): “disclosure of confidential information arising from the performance of the duties of a judge” and “enacting decisions that clearly violate the law or persistent and unjustified violation of the rules of procedure”. The FIC analyzed the provisions of Articles 68 and 77 of the CPA and concluded that by violating the CPA articles, the appellant committed offenses prescribed by Article 56 points 4 and 9 of the HJPC Act. The appellant argued that dissenting opinions do not present a part of the minutes of deliberating and voting. Hence, dissenting opinions do not need to be secret. The FIC disagreed and used linguistic and logical interpretation methods to conclude that dissenting opinions are a part of the mentioned minutes. Therefore, judges can dissent, but it is forbidden to publish such opinions. Further, the FIC argued that the restrictions were legitimate under article 10(2)of the ECHR. The appellant relied on an opinion of the Consultative Council of European Judges (“CCJE”). The CCJE in its Opinion no. 11 in 2008 on the Quality of Judicial Decisions advocates for allowing the publication of dissenting opinions in states where judges are allowed to dissent. The FIC stated that “opinions [of the CCJE] are not legally mandatory for the first-instance commission in this case” [para. 19].
The prosecutor also charged the appellant for publishing dissenting opinions in litigation cases. The FIC denied this charge since the Civil Procedure Act did not prohibit the publication of dissenting opinions. Thus, the appellant could not commit any offense. There were few other claims made by the prosecutor and the appellant, but they are not relevant for freedom of expression.
The FIC ordered a disciplinary measure – a 15% salary reduction for six months, and Blagojević appealed. The second-instance commission (“SIC”) partially upheld the first-instance decision. The SIC quashed the decision in respect of the offense prescribed by Article 56 Point 9 of the HJPC Act. It upheld the conviction of the appellant on the ground of Article 56 Point 4 of the HJPC Act but changed the sanction. Instead of salary reduction, the SIC issued a public reprimand as a disciplinary sanction. The SIC stated that it is true that some European countries allow for the dissemination of dissenting opinions, but “Bosnia and Herzegovina does belong to that circle of European States” [para. 34]. It reiterated that criminal procedure rules clearly do not allow for judges to publish their dissenting opinions. The legitimate aim of the mentioned rules “is the protection of the authority of the court and its judges, the preservation of the independence of judges from inappropriate political pressures, ensuring clarity, and unambiguity of judicial decisions and preserving the mutual collegiality of judges” [para. 34]. The SIC also noted that some European States do not allow judges to dissent at all and “some of the States do not allow publication of a dissenting opinion such as Germany, Czech Republic or Hungary” [para. 34].
The appellant lodged a constitutional appeal and the Constitutional Court of Bosnia and Herzegovina (“CCBH”) upheld the appeal partially on the grounds of violation of the right to a fair trial. In the retrial against the appellant, the HJCP Council rejected all of the appellant’s arguments and upheld the SIC’s verdict in its entirety. The appellant appealed again to the CCBH.
The CCBH had to decide if the decisions of the FIC and the SIC had violated the appellant’s several rights provided by the ECHR and the Bosnia and Herzegovina Constitution.
I. Right to a fair trial
The CCBH gave lengthy reasoning regarding Article 6 of ECHR and concluded that there was no violation of the right to a fair trial. The appellant argued that the disciplinary commissions were not impartial and that the proceedings against him were time-barred. The court found such allegations unsubstantiated. Further, the CCBH agreed with the commissions that the provisions of Articles 68 and 77 were clear and precise enough. The commissions acknowledged that some European states allowed dissenting opinions to be published, but this was not the case in Bosnia and Herzegovina. The court also noted that the appellant was able to dissent, but without any opportunity of publishing his dissenting opinion. In conclusion, the CCBH decided that the appealed decisions of the commissions were not arbitrary and the decisions were compatible with Article 6 of ECHR.
II. Freedom of expression
The court stated that freedom of expression was a “qualified right” which could be limited as prescribed by paragraph 2 of the article.
The CCBH reiterated its findings regarding the right to a fair trial and stated that the appellant was liable for “disclosure of confidential information arising from the performance of the duties of a judge” since he had published his dissenting opinion [para. 103]. The disciplinary commissions found that dissenting opinions form a part of minutes of deliberating and voting. As such, dissenting opinions cannot be published by the virtue of articles 68 and 77 of the CPA. The CCBH opined that the mentioned provisions were clear and precise enough so one could comprehend that it was not allowed to publish a dissenting opinion. Still, judges were allowed to dissent, but without an avenue to publicly disseminate those opinions. According to the court, the disciplinary commissions explained this clearly. Their explanations were not arbitrary. Hence “the interfering to the appellant’s right to freedom of expression was lawful” [para. 103].
The interference pursued a legitimate aim – maintaining the authority and impartiality of the judiciary.
Necessary in democratic society
On the issue of necessity in a democratic society, the CCBH briefly stated that “the inference was necessary in a democratic society for maintaining the authority and impartiality of the judiciary” [para. 105]. Additionally, the court did bear in mind the mild nature of the sanction, i.e. the appellant was disciplinary sanctioned only by the public reprimand. Thus, a fair balance was struck.
III. Other complaints
The appellant complained about the violation of other rights, namely the right to freedom of thought, right to an effective remedy, and prohibition of discrimination. Regarding the discrimination allegations, the appellant claimed that a judge, a victim, a defence attorney, and parties in criminal procedures (i.e. a prosecutor and an accused person) are not in an equal position in criminal procedures compared to their status in a procedure before the CCBH. This is due to the fact that publication of dissenting opinions is allowed in the procedure before the CCBH, and it is not allowed in procedures before ordinary courts in criminal law cases. In addition, Blagojević argued that it was unclear “why the publication of dissenting opinions [did] not constitute an offense (misdemeanor) in litigation cases” [para. 59]. According to the CCBH, the mentioned appellant’s arguments mirrored his arguments about Article 6 violation, and the CCBH found them unsubstantiated.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The claims around Article 10 have gone largely unexplained. The CCBH did not touch upon the issue of dissenting opinions and their value for the judiciary system. Both commissions were more diligent in explaining their decisions than the CCBH. Consultative Council of European Judges’ (CCJE) and the Venice Commission advocate for publishing dissenting opinions. If judges are allowed to dissent under national law, such opinions should be made public. Additionally, the appellant invoked the non-discrimination concept, arguing that subjects of criminal procedures are unreasonably unequal to subjects involved in a civil procedure or the procedure before the CCBH. The CCBH did not even elaborate on this issue. It did not go into detail about why such a distinction between different types of procedures is necessary and justified. As a result, the CCBH ruling is not a high point for the BH judiciary.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.