New Judgment on Trade Union Freedom of Expression
The European Court of Human Rights delivered a new and remarkable judgment on trade union freedom of expression. In Szima v. Hungary the European Court concluded that a criminal conviction of a leader of a police trade union for having posted critical and offensive comments on the Union’s website was to be considered necessary in a democratic society for the prevention of disorder or crime, and more precisely of preserving order in the armed forces.
The applicant in this case, Ms Judit Szima, is a retired senior police officer – a lieutenant colonel – who was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff. Szima wrote inter alia that it was proven “that the Hungarian Police’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led Hungary into economic and moral distress”. She also wrote that “the uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished” and that “a chaotic and highly unprofessional leadership is ruining the rest of the Police’s reputation from day to day”.
Ms Judit Szima was indicted for instigation to insubordination. On 29 April 2010 the Military Bench of the Budapest Regional Court found her guilty as charged and sentenced her to a fine and demotion. The Budapest Regional Court did not sustain Szima’s defence according to which the publication of such allegations belonged to the core of a trade union’s activities. It held that the allegations posted on the Union’s website were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity. On 8 December 2010 the Military Bench of the Budapest Court of Appeal confirmed Szima’s conviction. It held that the publication of the posted articles and statements on Tettrekész’s website had gone beyond Szima’s freedom of expression, given the particularities of the armed body to which she belonged. In the court’s opinion, the views contained in the documents constituted one-sided criticism whose truthfulness could and should not be proven. The Court of Appeal upheld Szima’s conviction under section 357 of the Criminal Code, providing that “anyone who incites discontent among soldiers towards a superior, a command or in general towards the order of service or discipline, is guilty of a misdemeanour punishable by imprisonment of up to one year”.
In its judgment of 9 October 2012, the European Court shares the views of the military benches of the Hungarian courts regarding the nature of the views expressed by Szima. The Strasbourg Court accepts that the accusations of the senior police management of political bias and agenda, transgressions, unprofessionalism and nepotism were indeed capable of causing insubordination since they might discredit the legitimacy of police actions. The Court considers that some of the statements could be regarded as value-judgments, but that Szima did not provide any clear factual basis for those statements. The Court observes that “it is true that Szima was barred from submitting evidence in the domestic proceedings – a matter of serious concern – however, in her attacks concerning the activities of police leadership, she failed to relate her offensive value judgments to facts”. The Court is of the opinion that Szima “has uttered, repeatedly, critical views about the manner in which police leaders managed the force, and accused them of disrespect of citizens and of serving political interests in general”, and that these views “overstepped the mandate of a trade union leader, because they are not at all related to the protection of labour-related interests of trade union members. Therefore, those statements, being made outside the legitimate scope of trade union-related activities, must be considered from the general perspective of freedom of expression rather than from the particular aspect of trade union-related expressions” (§ 31).
The European Court also points out that Szima as a senior police officer had considerable influence on trade union members and other servicemen, among other things by controlling the trade union’s website. As a high-ranking officer and trade union leader she should have had to exercise her right to freedom of expression in accordance with the duties and responsibilities which that right carries with it in the specific circumstances of her status and in view of the special requirement of discipline in the police force. The Court also notes that, by entering the police, Szima should have been aware of the restrictions that apply to staff in the exercise of their rights. Moreover, the limitations on the applicant’s right to freedom of expression did not require her to exercise her profession in violation of fundamental convictions of her conscience.
In view of the margin of appreciation applicable, in order to maintain discipline by sanctioning accusatory opinions which undermine the trust in, and the credibility of, the police leadership, the European Court accepts that there was a sufficient “pressing social need” to interfere with Szima’s freedom of expression. It considers that the reasons adduced by the national authorities to justify the criminal conviction are relevant and sufficient, especially in view of the relatively mild sanction imposed on the applicant – demotion and a fine – which cannot be regarded as disproportionate in the circumstances. On the basis of these considerations the Court concludes, by six votes to one, that there has been no violation of Article 10 read in the light of Article 11 of the Convention.
Judge Tulkens’ dissent
As the sole dissent, the president of the Chamber, Judge Tulkens, vehemently disagreed with the reasoning by the Court. Tulkens refers to the finding by the Court’s majority that Szima’s critical remarks had overstepped the mandate of a trade union leader, because some of them were “not at all related to the protection of labour-related interests of trade union members”. Tulkens wonders whether the Court itself has not overstepped its mandate by casting this judgment on the role of a trade union leader and on the “legitimate” scope of trade-union activities. In finding, without any other explication or justification, that the offending remarks had been made “outside the legitimate scope of trade union-related activities”, the majority dismissed, artificially in Tulkens’ view, the trade-union dimension of this case to focus it purely on the right to freedom of expression. Tulkens is also of the opinion that the Court did not take into account that Szima was effectively prevented by the Hungarian Courts from providing a factual basis for her allegations, referring to the odd conclusions by the majority that “it is true that she was barred from submitting evidence in the domestic proceedings – a matter of serious concern – however, in her attacks concerning the activities of police leadership, she failed to relate her offensive value judgments to facts”.
This judgment is indeed, as Gabrielle Guillemin wrote on Inforrm’s Blog a few days ago, “a setback for the freedom of expression rights of trade union leaders, members of the police force, as well as the broader public interest in exposing misconduct in public office ”. In its narrow approach to trade-union activities, the Court limits dramatically the protection under Article 10 of the European Convention for trade union leaders. It is also striking that because the statements of Szima were related to an issue of public interest, this reduced the protection under Article 10 which is guaranteed to a leader of a labour union, while the public interest aspect in all other circumstances is precisely a decisive element which extends and upgrades the level of protection of freedom of expression. This is especially the case when information is published or statements are made on alleged corruption, fraud or illegal activities in which politicians, high ranked civil servants or public institutions are involved.
It is remarkable that the judgment in Szima v. Hungary contains no reference at all to the judgment in Vellutini and Michel v. France (6 October 2011) in which the Court found a violation of the freedom of expression of a president and a general secretary of a municipal police officers’ union. In that judgment the Court took the view that the impugned remarks had not been offensive or hurtful to a degree that went beyond the framework of trade union discourse. The Court also emphasized that for those who take part in a public debate, a degree of exaggeration, or even provocation, with the use of somewhat immoderate language, is permitted. Above all it is to be noticed that none of the statements published on the website of the Hungarian police trade union incited to violence or crime or directly instigated to insubordination. In Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria (19 December 1994, para 38), the Court observed that the assertion that the content of a soldiers associations’ magazine distributed in military barracks represented a threat to discipline and to the effectiveness of the army, must be illustrated and substantiated by specific examples. The Court emphasized that none of the issues of the soldiers’ magazine recommended disobedience or violence, or even questioned the usefulness of the army. The Court furthermore clarified in VDSÖ and Gubi v. Austria, referring to the content of the issues of the magazine “that despite their often polemical tenor, it does not appear that they overstepped the bounds of what is permissible in the context of a mere discussion of ideas, which must be tolerated in the army of a democratic State just as it must be in the society that such an army serves”.
It is also difficult to understand that the European Court did not attach any consequences to the fact that Szima was denied the opportunity before the domestic courts to give evidence of the allegations she had formulated on the Union’s website. The Military Bench of the Court of Appeal even decided that the views uttered by Szima “constituted one-sided criticism whose truthfulness could and should not be proven”. Such a refusal, in itself, to be barred from giving evidence or proof in court of the factual basis of certain allegations in other cases has been considered as a breach of Article 10 of the Convention, such as in Castells v. Spain, De Haes and Gysels v. Belgium, Flux and Samson v. Moldova, Csánics v. Hungary and Vellutini and Michel v. France. It is surprising that the Court considers this refusal as something of “serious concern” without attaching any implication to this crucial aspect.
Finally, the Court was satisfied that the sanction was proportionate even though it recognised that several statements made by the applicant benefited from the heightened protection afforded to trade-union leaders or were ‘pure’ value-judgments. Furthermore, whilst the fine may be regarded as lenient, the same cannot be said of lowering a police officer in rank. The European Court seems to fully ignore the chilling effect such a sanction may have on trade union expression, as members of police labour unions will be deterred from engaging in legitimate harsh criticism on the management of the police force. This approach by the Court is all the more surprising, as in other cases on freedom of expression it has even considered an admonishment or “mere admonition” having a detriment, chilling effect and hence being an unacceptable interference from the scope of Article 10 § 2 of the Convention (Steur v. the Netherlands and Veraart v. the Netherlands).
Looking at the final outcome of the judgment in Szima v. Hungary, it is striking to notice that the Court firmly took as its starting point that “the members of a trade union must be able to express to their employer their demands by which they seek to improve the situation of workers in their company. A trade union that does not have the possibility of expressing its ideas freely in this connection would indeed be deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests” (§ 28). However, the reasoning used by the Court, which led to the acceptance of the findings by the domestic courts justifying the applicant’s conviction, seems to neglect the important principles the European Court itself said applied.
After the Court’s reasoning and findings in Palomo Sánchez v. Spain (12 September 2011), the judgment in Szima v. Hungaryrepresents a new retrograde step in terms of freedom of expression for leaders and members of labour unions. While many will take heart from the general recognition by the Court of trade union freedom in Szima v. Hungary, in practice the approach by the Strasbourg Court risks reducing the critical function and role trade unions play in debating matters of corporate management within the firm, company or public organization they are actively involved in. The policy, management and functioning of the police forces, are not only important matters for the members of the police trade unions, but for society and its citizens as a whole. Stifling this kind of participation and debate on matters of serious public concern is hard to consider necessary in a democratic society.
We may be reminded of another statement in one of Judge Tulkens’ recent dissenting opinions : “At a time when the winds are changing, it is the Court’s task, more than ever, to reinforce freedom of expression as a key element in democracy” (see Strasbourg Observers, August 24, 2012).
[See also the blog by Ronan Ó Fathaigh and Dirk Voorhoof analyzing and commenting the Grand Chamber’s judgment in Palomo Sánchez a.o. v. Spain, Strasbourg Observers, 14 November 2011 and Dirk Voorhoof and Jacques Englebert analyzing and criticizing the judgment in Aguilera Jiménez a.o. v. Spain]
* Professor Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre at Ghent University. Further information on Dirk Voorhoof can be found on his personal webpage here.