April 18, 2023
By Andy Jousten
In its judgment in Bakoyanni v. Greece, the European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 of the Convention due to the Greek Parliament’s refusal to lift a former minister’s immunity. The latter had posted a tweet, which the applicant, a Member of Parliament, considered damaging to her honour and dignity. In order to restore her good reputation, she took legal action against the former minister, seeking inter alia a specific relief in that any future judgment in the event of his conviction be published in a newspaper. The requested publication could only be obtained in case of a criminal conviction, but criminal proceedings could not be initiated against the former minister due to his immunity, which the Greek Parliament refused to lift. After transposing and applying to the present case the principles of its case law on parliamentary immunities, the ECtHR found that the refusal to lift the former minister’s immunity deprived the applicant of the possibility of obtaining this specific remedy and therefore violated her right of access to a court.
The case originated in a conflict between Theodora Bakoyanni, a Member of the Greek Parliament (MP) and applicant in the present case, and P.K., who was MP and Minister of Defence at the relevant time. Between March and August 2018, two Greek soldiers were arrested and detained in Turkey on espionage-related charges, which contributed at that time to the deterioration of the already strained relations between the two States. While the two soldiers were still deprived of their liberty, the applicant publicly announced that she would accept the invitation to participate in the oath-taking inauguration ceremony of the newly re-elected Turkish President. She posted a tweet in which she explained the reasons for accepting the invitation. P.K. reacted to this announcement, posting the following tweet on his personal profile: ‘With two Greek military Officers [being held] hostage, Dora Christoforakou-Marinaki [the applicant] is going to pay her respects to the Sultan … . Turkish heroin is paying … WAKE UP!!!!’.
The applicant, considering that this tweet had damaged her honour and dignity, filed both a criminal complaint, among others for the offence of libel, and a civil action for a breach of her personality rights against P.K. Alongside a compensation for non-pecuniary damage, she specifically requested in both of these legal actions that the future judgments be published in one or more newspapers, thereby aiming at publicly restoring her good reputation.
To fully understand how these legal actions were treated by the national authorities, it should be pointed out that the Greek Constitution provides for a special system of justiciability for (criminal) offences committed by ministers during the exercise of their duties. As applicable at the relevant time, Article 86 § 1 of the Constitution provides inter alia that ‘[o]nly Parliament has the power to prosecute serving or former members of the Cabinet or Deputy Ministers [Υφυπουργοί] for criminal offences that they committed during the exercise of their duties, as specified by law’. Just as the ECtHR does in its judgment – and even if these terms do not appear to us to be entirely appropriate for reasons that would go beyond the scope of this blog to explain – we shall refer to this protection as ‘ministerial immunity’, which can be ‘lifted’ by Parliament.
Moreover, as in many other states, the Greek Constitution also provides for parliamentary immunities. Article 62 of the Constitution provides for parliamentary immunity in the strict sense (also called parliamentary inviolability), which implies that an MP cannot be criminally prosecuted without the Parliament having first lifted his or her immunity. MPs also benefit from a parliamentary non-accountability (Article 61 of the Constitution), i.e., protection for opinions expressed and votes taken in the exercise of parliamentary functions. It appears to be accepted in Greek constitutional law that this second type of protection does not apply to opinions expressed in the media or online, as was the case with the tweet of P.K. (see §§ 18 and 22 of the judgment)
The national authorities appear to have hesitated as to the protection regime applicable to P.K. Initially, the applicant’s criminal complaint was forwarded to the Greek Parliament in order to lift his parliamentary immunity in the strict sense. However, after that, the relevant parliamentary committee ruled that it was rather his ministerial immunity that was applicable. In any case, the Parliament lifted neither P.K.’s parliamentary, nor his ministerial immunity. As a result, the applicant’s criminal complaint could not succeed, and, logically, no criminal conviction could be pronounced or published. In contrast, no special protection regime prevented her civil action from (partially) succeeding. In a first-instance judgment, P.K. was ordered to pay compensation to the applicant. However, the court did not grant the request for publication of this judgment in a newspaper, considering that the applicable law did not allow such publication in the present case (for more details, see §§ 19 and 33-37 of the judgment).
Despite this partial procedural success and while the civil proceedings were still ongoing at the national level, the applicant lodged an application with the ECtHR. In summary, she complained that the refusal of the Parliament to lift P.K.’s immunity – and the subsequent impossibility of obtaining the publication of his criminal conviction in a newspaper – had violated her right of access to a court under Article 6 § 1 of the European Convention on Human Rights (ECHR).
The ECtHR’s reasoning concerning the admissibility and the merits of this application may be summarised as follows.
Firstly, the applicant did not lose her victim status, Article 6 § 1 of the ECHR is applicable, and there has been a limitation to her right of access to a court in this case. In reaching this threefold finding, the Court attaches fundamental importance to the fact that the applicant sought a specific remedy for the alleged damage to her reputation. In addition to seeking financial compensation, she also – and above all – requested the publication of the eventual criminal and civil judgments in a newspaper. Since such publication could not be obtained in a civil action, it could not provide sufficient redress for the damage to her reputation she claimed to have suffered, even if she had been awarded compensation in the first instance. Only criminal proceedings would have enabled her to obtain sufficient redress, which is why they became essential for protecting her civil right to a good reputation (see on this point and its incidence on the applicability of Article 6 § 1 of the ECHR: § 65 of the judgment). However, such proceedings were made impossible by the refusal to lift P.K.’s ministerial immunity under Article 86 of the Constitution.
Secondly, the ministerial immunity at stake pursues ‘to a certain extent’ a legitimate aim: ‘the fact that the introduction of the procedure depends on the decision of a political body may appear questionable; however, it tends to avoid the penalisation of political life and the untimely intervention of justice in the conduct of political affairs’ (§ 63 of the judgment).
Thirdly, the limitation imposed on the applicant’s access to a court was not proportionate to that aim. Applying in this respect the criteria from its case law on parliamentary immunities, the ECtHR notes, on the one hand, that the criminal proceedings were the only way for the applicant to obtain satisfaction, as the publication of an eventual conviction of P.K. in a newspaper could only be obtained in the context of these criminal proceedings. The impossibility of initiating such proceedings against P.K. had therefore an irreparable effect on the declared aim of the applicant, which was to have her reputation restored in the eyes of the public. On the other hand, the Court added that, in view of the subject matter of the applicant’s criminal complaint, it could not be said that P.K.’s conduct was linked to the exercise of his parliamentary or ministerial functions. In accordance with its case law, this finding leads the Court to retain a narrow interpretation of the concept of proportionality between the aim pursued and the means employed.
In view of these elements, the Court concludes that the refusal to lift P.K.’s immunity impaired the very essence of the applicant’s right of access to a court.
As was already apparent to some extent from Anagnostou-Dedouli v. Greece – in which case Article 86 of the Greek Constitution was also at issue, albeit in a more secondary way – and as the present judgment confirms, the ECtHR applies common criteria to ministerial and parliamentary immunities as regards their compatibility with Article 6 § 1 of the Convention. This explains why the Court, in its presentation of the applicable ‘general principles’, sets out the principles relating to the parliamentary immunities (§§ 58-61 of the judgment). In several judgments relating to parliamentary immunities, the Court has applied two criteria for reviewing their compatibility with the right of access to a court and, in particular for its proportionality assessment. In substance, these criteria are, on the one hand, the link between the (allegedly) reprehensible act committed by an MP and his or her parliamentary functions, and, on the other hand, the reasonable alternative means that the (allegedly) harmed person had to effectively protect his or her rights. The Court thus transposed and applied these criteria in the present case on the refusal to lift a ministerial immunity.
That being said, the existence of common criteria does not necessarily lead to an identical assessment. This applies especially to the first criterion on the connection with the functions concerned. Even if it applies to both MPs and ministers, it may be analysed differently, since the nature and content of the respective functions are not identical. While the function of an MP consists, at least according to a traditional view (with which some might disagree), in participating in the activities of the parliamentary assembly, it seems reasonable to believe that the function of a minister should be understood in a broader and more varied way, particularly with regard to his or her statements in the media. As a result, the range of acts that can be considered as ‘connected’ to the ministerial function is also wider, which may have an impact on how the ECtHR assesses this first criterion.
However, this is not necessarily the case, as the present judgment demonstrates. In its assessment of the proportionality of the limitation imposed on the applicant’s access to a court and its conclusion, the Court considers that P.K.’s conduct is connected neither to his ministerial functions nor to his parliamentary functions. This broad formulation makes it clear that, in the eyes of the Court, in order to reach the conclusion that there was a violation of Article 6 § 1 of the Convention in the present case, it does not matter which protection regime was applied by the Greek authorities.
The second criterion on the reasonable alternative means of effectively protecting a person’s rights generally appears to have an overabundant role, at least in the case law concerning parliamentary immunities. It is usually the aforementioned first criterion that retains the ECtHR’s main attention. After examining this first criterion, the Court then often adds, for example, that it also ‘attaches some significance’ to the absence or ineffectiveness of alternative remedies (see for example Cordova v. Italy No. 1, § 65 and C.G.I.L. & Cofferati v. Italy No. 2, § 50; see a contrario a case concerning the protection regime for Belgian magistrates: Ernst v. Belgium, §§ 54-57, and the judgment in Anagnostou-Dedouli v. Greece, §§ 51-56, where the action against the minister concerned was only one of many legal actions introduced by the applicant). The present judgment differs on this point since the existence of an alternative remedy to that ‘blocked’ by the ministerial immunity is addressed by the Court as a priority. The nature of the acts of which P.K. is accused and their link to his function(s) (first criterion) are addressed only in the second place. However, this should not necessarily be seen as a change in the Court’s priorities, nor as a specificity of the cases involving ministers, but rather as a sign of the particularities of the present case.
In fact, what lies at the heart of the ECtHR’s reasoning, as regards both admissibility and merits, are the procedural means available to the applicant to obtain the specific relief in that any future judgment in the event of P.K.’s conviction be published in a newspaper. The importance that the Court attaches at every stage of its reasoning to the applicant’s choice of this particular remedy is striking.
As the Court notes and as we already pointed out, the refusal to lift P.K.’s immunity deprived the applicant of that specific remedy in the context of her criminal complaint. That being said, it should be borne in mind that, in the context of her civil action for a breach of personality rights, it was the applicable Greek legislation – or at least its interpretation in the present case – which deprived her of that specific remedy. This point does not appear as such in the Court’s conclusive finding of a violation of Article 6 § 1 of the Convention, which focuses exclusively on the Parliament’s refusal to lift P.K.’s immunity (§ 72 of the judgment) but is more of a premise of that finding (§§ 67 and 69 of the judgment). In our view, this legislation – or its interpretation in casu – has contributed as much to the violation of the applicant’s fundamental right as the applicable ministerial immunity itself.
This observation is not without relevance when considering the potential impact of the ECtHR’s judgment. It may not only lead the Greek State to reflect on the scope and the effects of Article 86 of its Constitution – which is a delicate exercise – but also on the legislation concerning the publication of judgments in a newspaper in the context of a civil action. As the Court’s reasoning shows, this legislation – and more generally the existence of reasonable and effective alternative means of protecting a person’s rights – is crucial in assessing whether there has been a violation of the right of access to a court.
While parliamentary or ministerial immunities necessarily limit third parties’ access to a court and therefore the underlying rights whose protection is sought through this access, they also protect the regular and independent exercise of crucial state functions, which could be disrupted by untimely legal actions. In other words, these immunities contribute to the extremely delicate articulation between the judicial protection of the (fundamental) rights of third parties and the protection of the state functions concerned.
The present judgment has the merit of emphasizing that in this articulation, it is necessary to consider not only the scope and the effects of the immunities concerned to assess their compatibility with the right of access to court, but also the alternative ways of protecting the (fundamental) rights at stake. Thus, and in line with what we noted above, the Court’s case law and the present judgment in particular, suggest that even if an immunity closes the door to obtaining a particular remedy sought by an applicant, the existence of a reasonable and effective alternative not affected by such immunity could enable a State to avoid a finding of a violation of Article 6 § 1 of the Convention. In other words, the Court’s case law does not necessarily oblige Member States to abolish, in a general and absolute way, any kind of immunity, but at least they have to be aware of their impact on third parties’ fundamental rights which could, possibly, be compensated in another way[i].
[i] For further information on the articulation between parliamentary immunities and human rights, see A. Jousten, “Parliamentary immunities, human rights, and the separation of powers”, Paper presented at the World Congress of Constitutional Law in Johannesburg, 2022, accessible via https://hdl.handle.net/2268/296620.