December 08, 2021
By Tobias Mortier
Art. 18 is a peculiar provision in the rights catalogue of the European Convention on Human Rights (‘the Convention’). Only rarely is it invoked before the European Court of Human Rights (‘the Court’) – and a violation of it is even rarer. Up until now, the Court had only found violations of Art. 18 in respect of Azerbaijan, Moldova, Russia, Georgia, Turkey and Ukraine – and now Bulgaria has the dubious honor of being the seventh country to join this list of serious rule of law offenders. For a long time, the reason behind its infrequent application was the one-sided allocation of the burden of proof and the enormously high standard of proof. The Court made important changes in this regard in its Grand Chamber judgment in Merabishvili, where it established a new, (mostly) coherent approach. However, this does not mean that all Art. 18 judgments are now free of incoherent reasonings. The Court’s judgment in Miroslava Todorova v. Bulgaria constitutes a prime example of this.
In this case, the applicant was a judge in the criminal division of the Sofia City Court and the president of the Bulgarian Union of Judges (‘BUJ’). In the latter capacity, she made several public statements in which she criticized the actions of the Supreme Judicial Council (‘SJC’) and the Bulgarian Government with regard to the negative impact of their actions on the independence of the judiciary. Among her statements were instances where she criticized the appointments of the new presidents of the Sofia City Court, the Sofia Court of Appeal and the Supreme Administrative Court (‘SAC’).
In 2011, the Court adopted a pilot judgment against Bulgaria concerning the systemic problem with excessive delays in legal proceedings. The President of the Sofia Court of Appeal subsequently presented a list of judgments for which the reasons had not yet been made public three months after they were handed down. In response, the Inspector General of the SJC ordered an audit of the criminal division of the Sofia City Court and proposed that the SJC initiate disciplinary proceedings against the judges with the most significant backlogs of cases. The audit revealed that the applicant was responsible for the largest number of delays, with the reasoning of the judgments she issued taking up to three years. The SJC initiated disciplinary proceedings against four judges, including the applicant, and referred the matter to its disciplinary board. The board proposed a 15% reduction in her salary for two years, which the SJC adopted. Following this, the SJC opened three more disciplinary proceedings against the applicant, two of which were initiated by the same people whose candidacy she had opposed. In these cases, the disciplinary board proposed the applicant’s dismissal, the heaviest sanction possible. The SJC adopted the measure, thereby evoking a large public outrage – both domestically and internationally.
The applicant appealed against both measures before the SAC. As regards the 15% reduction, a three-judge panel annulled the decision by the SJC, but the SJC appealed on points of law and a larger five-judge panel confirmed the reduction. As regards her dismissal, the three-judge panel dismissed her appeal, but the five-judge panel subsequently found the sanction to be disproportionate and referred the case back to the SJC. The SJC eventually demoted the applicant to a lower court for a total period of two years, with the approval of the five-judge panel. The applicant subsequently brought her case before the Court, relying on Arts. 6 §1, 8, 10, 14 and 18.
The applicant complained about several aspects concerning the fairness of the proceedings before the SJC and SAC, but the Court mainly focused on the alleged lack of impartiality of both tribunals under Art. 6 §1. As regards the lack of impartiality on the SJC’s part, the Court referenced its Grand Chamber judgment in Ramos Nunes de Carvalho e Sá v. Portugal (para. 132), in which it stated that no violation of Art. 6 §1 could be found if the decisions of the SJC were subject to control by a judicial body with full jurisdiction. The Court noted that the SAC was in fact a judicial body with full jurisdiction over the SJC, leading it to find no violation as regards the SJC.
As regards the SAC, the applicant’s complaint concerned a lack of objective impartiality due to the change in the apportionment of cases, following a decision by the President of the SAC for organizational purposes. However, the Court noted that the President had never been part of any of the formations handling her case and that the applicant had had the opportunity to challenge the decisions by the three-judge panel before a five-judge panel. The fact that the appointment of judges by the President to the latter panel did not happen arbitrarily was in line with the domestic regulation in this regard, which fell under Bulgaria’s margin of appreciation. It could therefore find no violation of Art. 6 §1 in respect of the SJC, nor of the SAC. Neither did it find a violation of Art. 8 in respect of the disciplinary sanctions imposed on the applicant, since the damage to her professional reputation did not attain the required level of gravity.
The Court then examined the case under Art. 10. It noted that although the sanctions imposed on the applicant were formally based on grounds of professional shortcomings, there were several elements that suggested that there was in fact a link between the proceedings and the applicant’s public statements. This could have a chilling effect on the applicant and other members of the judiciary, preventing them from freely exercising their right to freedom of expression out of fear of repercussions. In light of these findings, the Court found that there had been an interference with Art. 10.
The Court continued its examination under Art. 10 by noting that the sanctioning of the applicant on account of her public statements would not constitute a legitimate aim under the Convention. However, since the sanctions were formally adopted on grounds of her failure to comply with her professional duties – and since there were indeed indications that the allegations against the applicant were in fact founded on factual grounds – the Court accepted the aim of preserving the proper functioning of the judiciary and the prevention of crime. It subsequently noted that the proceedings and sanctions failed to meet the requirement of necessity in a democratic society. In order to reach this conclusion, the Court considered a variety of elements, including the functions occupied by the applicant, the nature of the statements and the context in which they were expressed, the disproportionate severity of the sanctions and the lack of procedural guarantees granted to the applicant. The Court paid particular attention to the fact that the applicant had been dismissed for one year, in spite of a later annulment by the SAC. Regardless of the possibility to obtain financial compensation following the annulment, such disproportionality could have had a potentially chilling effect on the applicant’s fellow members of the judiciary. In light of the fundamental character of the freedom of expression in a democratic society, the Court inferred from all these elements that initiating proceedings and imposing sanctions on account of public statements aimed at the preservation of the independence of the judiciary were not necessary in in order to achieve the legitimate aims and thus were in contravention of Art. 10. Nevertheless, the Court did clarify that judges could still be prosecuted on account of their failure to comply with their professional duties, as long as this did not happen in retaliation for statements made by them in the context of the exercise of their freedom of expression.
Lastly, the Court examined whether the authorities had also pursued a hidden aim with the proceedings and sanctions under Art. 18, taken in conjunction with Art. 10. It noted that it had previously already expressed doubts as to the true aim in its review under Art. 10. Coupled with statements made by the Minister of Interior which personally targeted the applicant, the Court noted that this sufficed to establish a hidden aim. Since it had already established a legitimate aim under its Art. 10 review, the Court subsequently had to determine which aim was the predominant one. The Court took into account, inter alia, the succession of events, the gravity of the sanctions, the fact that the SJC had considered time-barred events, which was not corrected by the SAC, and the fact that the applicant had merely acted out her right to freedom of expression as guaranteed under the Convention. This led the Court to find the hidden aim to be the predominant one, leading it to find a violation of Art. 18 in conjunction with Art. 10.
For the purpose of this blogpost, the emphasis lies on the Court’s reasoning under Art. 10 and the impact this had on its reasoning under Art. 18. This does not mean that nothing of importance can be said of the other provisions invoked, though. In fact, the partly dissenting opinion by Judges Harutyunyan and Salkova focused on Art. 6 §1 and the Court’s conclusions as to the lack of impartiality, in which valid points were raised.
In its review under Art. 18, the Court noted that it had not previously examined the complaint concerning the ulterior motive under another provision, rendering the claim a ‘fundamental aspect’ of the case (para. 203). The Court has never clarified how it exactly applies its fundamental aspect criterion, but its case law appears to indicate that the criterion renders the hidden aim argument an ‘either/or’ one: either the applicant brings the argument under the purview of Art. 18, or it raises it under another provision, but they cannot raise it in substance under both. However, it appears that this was in fact the case in the present judgment. Indeed, the Court appears to have already established a hidden aim before, namely under Art. 10. The Court itself noted that the sanctions were formally imposed on account of the applicant’s failure to comply with her professional duties. Conversely, it then claimed that the proceedings were in reality entirely bound up with the statements made by the applicant. Such a consideration essentially comes down to the establishment of a hidden aim; the Court found that the proceedings and sanctions were initiated, not on grounds of professional shortcomings, but on account of the exercise of her Convention rights. The Court partially referred back to its considerations under Art. 10 in the context of its assessment of the existence of the hidden aim under Art. 18 as well (para. 205).
It is interesting that the Court found an interference with Art. 10 when the proceedings and sanctions were not officially inspired by the applicant’s statements or when these statements were never submitted as evidence either. In the case of Kövesi v. Romania, where a prosecutor was dismissed following public statements, the Court found an interference with Art. 10, but partially because the reasons behind the dismissal explicitly referred to these statements. Of course, based on the evidence provided to the Court, it is clear that the authorities pursued the hidden aim of punishing and silencing the applicant in the present case as well, but this was never explicitly at the forefront of the litigation process. One might therefore wonder whether this really amounts to an interference with Article 10 (without adding Art. 18 to the equation), or whether this hidden aim ought to be dealt with under Art. 18 in conjunction with either Art. 6 or 10.
This conclusion furthermore raises two issues with regard to the Court’s judgment. The first is that, if the Court were to adhere to its own case law concerning its fundamental aspect criterion, it ought not to have reviewed the case under Art. 18. As explained before, the Court traditionally refuses to apply Art. 18 if it has previously examined the argument concerning the hidden aim under another Article. This led the Court to reject, for instance, the Art. 18 argument in its judgments in Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia (para. 305) or Khodorkovskiy and Lebedev v. Russia (no. 2) (para. 622). However, in the present case, the Court effectively examined the argument both under Art. 10 on its own, as well as in conjunction with Art. 18. Discussing the desirability of such an approach falls outside the scope of this blogpost, but it is remarkable that in the present case the Court did not address what made the arguments under Arts. 10 and 18 different from one another, so that the fundamental aspect criterion did not prevent Art. 18 from being considered.
The second issue caused by the Court’s establishment of an interference with Art. 10 relates to its further reasoning under said Article. More precisely, it stated that the mere existence of the interference already raised doubts as to the authorities’ true aim; however, for the purpose of its consideration, it accepted the aims of the protection of the proper functioning of the judiciary and the prevention of crime as legitimate. The existence of a strong factual basis indicating that the applicant had committed the breaches of which she was accused, does support the finding that the authorities most likely did not only pursue the hidden aim of punishing the applicant on account of her statements. After all, in the end the applicant remains responsible for the delays on her part. Imposing sanctions upon her on account of the delays only would indeed be in pursuance of these aims. However, that is not the interference reviewed by the Court here. Neither the protection of the proper functioning of the judiciary, nor the prevention of crime can substantiate the fact that the measures were taken in retaliation for the exercise of her freedom of expression. It is highly unlikely that the authorities prosecuted the applicant on grounds of her statements in order to ‘prevent criminal behavior’ when such behavior was not criminalized under Bulgarian law to begin with. The legitimate aims therefore correspond to the alleged breaches of professional duty, while the establishment of the interference and the Court’s subsequent necessity assessment correspond to the prosecution and punishment on grounds of the statements. If the hidden aim truly amounted to an interference, there would be a clear issue of pertinence here, which the Court did not discuss. Qualifying the hidden aim on the authorities’ part as an interference therefore resulted in a rather disjointed reasoning under Art. 10.
One might wonder why the Court applied such a confused reasoning under Art. 10. An explanation for this can be found in the Court’s strict refusal to apply Art. 18 in conjunction with Art. 6. So far, the Court has never applied Art. 18 in combination with another Article which it has not previously reviewed in the same judgment. In fact, in Khodorkovskiy and Lebedev v. Russia (no. 2), the Court rejected the argument raised under Art. 18 in conjunction with Art. 5 partially because ‘the applicants’ rights under Art. 5 were not subject of its examination in the present case’ (para. 621). Dismissing Art. 10 as stand-alone Article in this case because there had been no interference, would implicate that the Court was only left with either Arts. 6 or 8 to apply in conjunction with Art. 18. Given how the proceedings and sanctions only marginally affected the applicant’s personal life, this would leave the Court with no other option than Art. 6.
However, the Court traditionally refuses to apply Art. 18 in combination with Art. 6 because the latter provision ‘does not contain any express or implied restrictions’ (Navalnyy and Ofitserov v. Russia, para. 129). This position has generated considerable criticism.[i] One might indeed question how the Court can consider a measure politically motivated, but regard the proceedings leading to said measure differently. Moreover, in this case several of the arguments considered both under Arts. 10 and 18 seem to be inherently related to the proceedings too. For instance, the Court noted under Art. 10 that the SAC had systematically refused to entertain the argument concerning the political motivation behind the proceedings – and had repeatedly confirmed the SJC’s decision without providing any adequate reasons for this. Under Art. 18, the Court also considered curiosities in the authorities’ reasoning, such as the fact that the disciplinary board took several events dating from before the audit into account. Furthermore, the dissenting opinion noted that the law had been applied differently to the applicant than it had been to fellow judges who had found themselves in a similar situation to hers, and suspected that the change in the apportionment of cases to divisions had in fact been decided deliberately by the President of the SAC due to the lack of reasons issued in support of this change. These are all elements that suggest that the entire proceedings were abused for an aim alien to the Convention. However, due to its reluctance to apply Arts. 18 and 6 together, the Court was essentially forced to rely on Art. 10 to a large extent. Admittedly, the final outcome would remain the same, but if the Court were to designate Art. 6 as an Article that could be invoked in combination with Art. 18, this would allow the Court to address additional dimensions to undemocratic tendencies in its Member States.
The rule of law is one of the Convention’s core values, embedded in all of its provisions (Amuur v. France, para. 50). Protecting it ought therefore to be of key importance to the Court. Addressing rule of law violations under Art. 18, as the Court did in Miroslava Todorova, is one of the ways in which the Court ensures this. However, in order for the rule of law to be protected to the largest extent possible, it is paramount that a violation be addressed in its entirety. Continuing to reject Art. 6 as an Article fit to be applied in conjunction with Art. 18 does not only lead to contrived reasonings, as was the case here, but leaves certain aspects undiscussed as well. The argument for the Court not to use Art. 6, namely that the text of provisions does not appear to allow limitations, has been superseded from the start, considering how the Court has allowed interferences with Art. 6 to be justified already (see Joint Concurring Opinion of Judges Nussberger, Tsotsoria, O’Leary and Mits in Ilgar Mammadov v. Azerbaijan (no. 2), para 12). It is therefore high time for the Court to broaden the scope of Art. 18 to include Art. 6 as well.
[i] See Navalnyy and Ofitserov v. Russia, Joint Partly Dissenting Opinion of Judges Nicolaou, Keller and Dedov, §§6-7; Ilgar Mammadov v. Azerbaijan (no. 2), Joint Concurring Opinion of Judges Nussberger, Tsotsoria, O’Leary and Mits, §§3 and 12-16. See also Corinna Heri, Loyalty, Subsidiarity, and Article 18 ECHR: How the ECtHR Deals with Mala Fide Limitations of Rights, European Convention on Human Rights Law Review, 2020, at 37.