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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Sunday, 11 December 2016

Proceedings to dismiss a judge of the Constitutional Court of Bosnia and Herzegovina were fair and did not interfere with his freedom of expression



In its decision in the case of Simić v. Bosnia and Herzegovina the European Court of Human Rights on 15 November 2016 unanimously declared the application inadmissible. The decision is final. The case concerned Mr Simić’s removal from office as a judge of the Constitutional Court. Relying in particular on Article 6 § 1 (right to a fair trial) and Article 10 (freedom of expression), Mr Simić alleged in particular that the proceedings to dismiss him had been unfair and that he had been removed from office because of statements he had made in public via the media criticising the Constitutional Court.



Between 31 December 2009 and 8 January 2010, Mr Simić gave media interviews in which he criticised the Constitutional Court, accusing it of corruption and letting crime and politics interfere with its work. He also held a press conference at which he discussed certain cases and commented on the impartiality of the Court.

The Court found that Mr Simić had had the opportunity to present his case in proceedings before the Constitutional Court, both in written and in oral submissions, and to inspect as well as to comment on all the relevant documents, as required in fair and adversarial proceedings. It could not moreover accept his complaint that there had been no public hearing on his case as he had at no point during the proceedings requested that the sessions be held in public.

Furthermore, the Court concluded that Mr Simić had been removed from office for damaging the authority of the Constitutional Court and the reputation of a judge. The reasons for Mr Simić’s dismissal had therefore been motivated by behaviour considered incompatible with judicial office, namely his having written a letter to a senior politician which lacked independence and impartiality, and not because of his publicly expressed views via the media.

About the alleged violation of Article 10 of the Convention the Court held:

"31. The applicant complained that he was removed from office because of his public statements contrary to Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
32. The Court reiterates that Article 10 applies also to the workplace, and that civil servants, such as the applicant, enjoy the right to freedom of expression (see Baka, cited above, § 140; Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999-VII; Guja v. Moldova [GC], no. 14277/04, § 52, 12 February 2008; and Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009). At the same time, the Court is mindful that employees owe to their employer a duty of loyalty, reserve and discretion. This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion (see Ahmed and Others v. the United Kingdom, 2 September 1998, § 55, Reports of Judgments and Decisions 1998‑VI, and De Diego Nafría v. Spain, no. 46833/99, § 37, 14 March 2002). Disclosure by civil servants of information obtained in the course of their work, even on matters of public interest, should therefore be examined in the light of their duty of loyalty and discretion (see Guja, cited above, §§ 72-78).
33. The Court reiterates that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10. However, the Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313). The phrase “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 and for the determination of a person’s guilt or innocence on a criminal charge (see Worm v. Austria, 29 August 1997, § 40, Reports 1997-V). What is at stake as regards protection of the judiciary’s authority is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large (see, mutatis mutandis, among many other authorities, Fey v. Austria, 24 February 1993, Series A no. 255-A). For this reason the Court has found it incumbent on public officials serving in the judiciary that they 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 (see Baka, cited above, § 164, and Wille, cited above, § 64).
34. Turning to the present case, the Court notes that on 30 November 2009 the Constitutional Court received a letter written by the applicant and addressed to the then prime minister of the Republika Srpska and the president of the SNSD. On 3 December 2009 the Constitutional Court invited the applicant to submit his written statement concerning the impugned letter (see paragraph 8 above). The Court further notes that, subsequently, the applicant gave media interviews in which he criticised the Constitutional Court and held an unauthorised press conference without offering any evidence supporting his allegations.
35. The Court notes 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 considers that the Constitutional Court’s decision to remove the applicant from 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 (see, mutatis mutandis, Harabin v. Slovakia (dec.), no. 62584/00, ECHR 2004‑VI). Therefore, contrary to the applicant’s claims, the Court considers that the reasons for the applicant’s removal from office were the impugned letter, the content of which has undoubtedly given rise to reasonable suspicion as to his impartiality and independence, and the behaviour incompatible with the role of a judge. In that respect the present case is to be distinguished from other cases, notably from Baka (cited above, §§ 151 and 152) and Kudeshkina (cited above, §§ 79 and 80), 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.
36. 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.
37. In view of the above, the Court finds that there is no appearance of a violation of Article 10. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected as inadmissible, pursuant to Article 35 § 4 thereof."

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