August 01, 2023
By Rianne Herregodts
In Grosam v. the Czech Republic, the Grand Chamber of the European Court of Human Rights concludes the Chamber of the First Section of the Court has gone too far in its characterisation of the complaint of Mr. Grosam. The judgment clarifies what it means to be ‘the master of characterisation’. It certainly doesn’t give the Court the power to ‘substitute itself for the applicant and formulate new complaints’ (para. 91).
Mr. Jan Grosam, the applicant, was an enforcement officer in the Czech Republic. In 2010, a disciplinary complaint was lodged against him by the Minister of Justice. The complaint held that Grosam had committed a disciplinary offence by drawing up an enforcement officer’s record attesting to the recognition of a debt by an unauthorised person. The complaint was heard by the disciplinary chamber of the Supreme Administrative Court (‘the disciplinary court’). This chamber was presided by a judge of the Supreme Administrative Court, with another judge as the deputy president. The other four members of the Chamber were lay judges: two enforcement officers, a lawyer and a professor of law. In the verdict, the applicant was found guilty of the aforementioned misconduct. The disciplinary court imposed a fine of approximately 13,5 thousand euros on Grosam. Grosam turned to the Constitutional Court, which dismissed his complaints. Grosam subsequently lodged a complaint with the ECtHR.
Grosam’s complaint contained two main lines of reasoning. Firstly, he stated that article 6 (1), (2) and (3)(d) of the Convention had been violated. He argued that the presumption of innocence, the duty of the court to gather evidence and the in dubio pro reo principle had been violated, and criticised the disciplinary court for not following up his offer to provide additional evidence. Secondly and most importantly, Grosam maintained that the impossibility to appeal the decision of the disciplinary court violated his rights under article 2 (1) of Protocol 7. In the application form, he stated that ‘disciplinary proceedings should be assessed as proceedings on criminal charges’. Grosam also explained why he believed that the exceptions of article 2 (2) of Protocol 7 did not apply to his case. According to him, ‘it is not possible to accept the disciplinary chamber of the Supreme Administrative Court as the highest tribunal under article 2 (2)’. Decisive for Grosam in this respect was the composition of the disciplinary chamber, in which lay assessors formed the majority.
The Chamber of the First Section of the Court saw it fit to ‘reframe’ the second part of Grosam’s complaint. In para. 70, the Chamber declares that, ‘being the master of the characterisation to be given in law to the facts of the case, [it] views the latter complaint as one primarily falling under Article 6 (1) of the Convention, especially given that a “tribunal” within the meaning of Article 6 is also one within the meaning of Article 2 of Protocol No. 7 […].’
This decision of the Chamber greatly affects the assessment of the complaint. Under article 2 of Protocol 7, the Court would have had to answer three questions. First, whether the procedure involved a criminal charge (i.e. is article 2 of Protocol 7 applicable?). And if so, whether Grosam had the possibility to appeal the judgment of the disciplinary court. Third, if not, whether any of the exceptions of art. 2 (2) applied. Previous caselaw shows a disciplinary procedure, as a rule, doesn’t constitute a criminal charge (see for example Müller-Hartburg v. Austria). By viewing this part of Grosam’s complaint as falling under article 6 (1), the lack of a criminal charge no longer threatened the viability of the complaint. It was enough for the disciplinary procedure to involve a civil right. The Chamber then discussed whether the disciplinary court even was a tribunal at all.
The Chamber held that the civil limb of article 6 applied to the disciplinary proceedings of Grosam, but not the criminal limb (para. 87-99). The independence and impartiality of the disciplinary court was found lacking, mostly because of the (pre-)selection process of the lay assessors (para. 129-130) and the ties between the executive (the minister of Justice) and enforcement officers, which were thought to contain insufficient guarantees against outside pressure (para. 136-139). Since there was no possibility to appeal the decision, there was no second-tier court that could remedy the shortcomings of the first stage of proceedings (para. 147-149). With the smallest possible majority (4:3) the Chamber concluded that article 6 (1) of the Convention had been violated. The remaining statements Grosam made about violations of article 6 of the Convention did not succeed.
According to the dissenters, Judges Eicke, Koskelo and Wennerström, the Chamber decided the case on a point that had not been raised by the applicant in national proceedings and that had not been raised by the applicant in his application to the Court. They pointed out that Grosam’s reasoning was based on the incorrect assumption that the disciplinary proceeding could or should be seen as a procedure that concerned a criminal charge. He did not object to the composition of the disciplinary court, let alone to the (pre-)selection of lay assessors or the guarantees against outside pressure. Also, the dissenters objected to the judgment in so far as it was based on an assessment of the domestic legislation in abstracto. The majority focused their attention on circumstances which were not relevant for the composition of the disciplinary chamber that sat in Grosam’s case. In their concluding remarks, the dissenters summarised their discontent with the majority’s decision as follows: ‘We would like to point out that it is also a part of the rule of law that courts, including this one, should respect the basic limits of their function’ (para. 26).
The Grand Chamber reiterates that a complaint has to contain factual allegations and legal arguments. The latter means the complaint should indicate what act or omission entailed a violation. An applicant can’t assume the facts will speak for themselves: he or she must focus the Court’s attention by indicating what behaviour constituted the violation of an article of the Convention or the Protocols (para. 88-90). The Court has ‘no power to substitute itself for the applicant and formulate new complaints simply on the basis of the arguments and facts advanced’ (para. 91).
The Grand Chamber observes that Grosam had not complained of the composition of the disciplinary court and had not stated that the disciplinary court doesn’t meet the requirements a tribunal should meet. The Chamber reformulated the complaint beyond its original scope and thereby exceeded its powers (para. 95-97). It is not necessary to determine whether the reformulated complaint had already been discussed during domestic proceedings, as this part of the complaint had not been brought forward by Grosam within the timeframe set by article 35 of the Convention.
The Grand Chamber summarises under what conditions the civil limb and the criminal limb of article 6 of the Convention apply to disciplinary cases (para. 108 and para. 113). Like the Chamber, the Grand Chamber sees the disciplinary case against Grosam as one involving a civil right but not a criminal charge (para. 109-110 and 117-120). As a result, article 2 of Protocol 7 is not applicable to the disciplinary procedure of Grosam. The Grand Chamber adds, ‘by way of observation, that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation’ (para. 136). The complaints raised by Grosam under article 6 fail, too. Doing what the Chamber should have done, the Grand Chamber unanimously declares the complaint inadmissible.
Individual applications or complaints under article 34 of the Convention must contain, on the basis of rule 47 of the Rules of Court, several elements. These include ‘a concise and legible statement of the facts’ and ‘a concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments’ (Rule 47 (1) (e) and (f)). These statements should enable the Court to determine the scope of the complaint without reading other documents (Rule 47 (2) (a)).
In previous caselaw, the Grand Chamber has repeatedly referred to its role as ‘master of characterisation’, explaining that: ‘since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission.’ Referring to the jura novit curia principle, the Court would then state the complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on.’ (See for example: Guerra and others v. Italy, para. 44; Scoppola v. Italy (no. 2), para. 54).
The Court can thus characterise in law the facts being complained of by basing its decision on a provision of the Convention not relied on by the applicants (para. 125). This for example means that if the applicant has not invoked a specific provision, it is left to the Court to find the relevant provision (Vilenchik v. Ukraine, para. 39-40). Perhaps more controversially, it means the Court may assess the case under a different provision than the provision or provisions the applicant has relied on. That is what happened in S.M. v. Croatia. There, the applicant relied on articles 3, 6, 8 and 14 of the Convention, but the Court determined whether article 4 of the Convention applied to this complaint on human trafficking (para. 219, see the post by Vladislava Stoyanova about this judgment). The Court would exceed its jurisdiction if it would assess facts that have not been brought forward in the complaint (Radomilja and others v. Croatia, para. 124 and 126; also: S.M. v. Croatia, para. 219; Navalnyy v. Russia, para. 63-65).
As these examples show, the role as master of characterisation may be efficient: it allows the Court to redirect similar complaints to the same provision, thereby streamlining and solidifying its caselaw on that topic. It may also support applicants that have little knowledge of the content of the Convention and the Protocols, let alone of the Court’s caselaw.
However, in the case of Grosam, the Chamber morphed the original complaint into an altogether different one. Grosam did not complain of the composition of the disciplinary court. The composition was relevant only for his statement that the disciplinary court was not the highest tribunal in the meaning of article 2 (2) of Protocol 7. The Chamber altered the legal arguments brought forward in the complaint and thereby failed to exercise judicial restraint. A complaint is not an invitation to the Court to rummage through the facts to see what other allegations the applicant could possibly have made and to read these into complaint. Although exercising judicial restraint, on occasion, may perhaps feel as if it limits the Court’s effectiveness, respecting the limitations of the Court’s role guards its legitimacy.
The Grand Chamber conclusion that the Chamber exceeded its powers is a just and welcome clarification of the meaning of the role as master of characterisation. In my opinion, two aspects are important for the future development of this role.
The first aspect has to do with why the Chamber thought it fitting to fulfil its role with such (excessive) enthusiasm. The Grand Chamber doesn’t speculate about this and the Chamber judgment is silent, too. In any case, Grosam hadn’t failed to indicate which article he thought had been violated. Nor had Grosam invoked so many articles that the Court needed to reorganise his complaint to be able to deal with it in an efficient manner. We do not know why the Chamber acted like it did in this case. In an article published just before the Chamber judgment, Mathias Möschel has attempted to identify the factors that influence the readiness of the Court to perform its role as master of characterisation. One factor would be whether the judges see the Court’s role as that of providing protection beyond the individual case. Another would be if the judges have a negative view on the judicial system the caselaw is about. The question remains what motives are acceptable reasons for playing the card of master of characterisation at all. This will hopefully be addressed in future caselaw.
The second aspect concerns the consistent fulfilment of the role. In their joint partly dissenting, partly concurring opinion in Radomilja and others v. Croatia, Judges Yudkivska, Vehabović and Kūris pointed out that: ‘In order to attain legitimacy, the Court’s “mastering” must be consistent in choosing a narrower or broader, a stricter or more lenient approach.’ (para. 3). I’d like to add that the Court should be not just be consistent in what it Court does as well as in under which circumstancesit chooses to fulfil its role – or not.
A complaint contains the factual allegations and the legal arguments of the applicant. In the case of Grosam, the Chamber recharacterised the complaint in such a way that it transformed a legal argument of the applicant into an altogether different one, thereby exceeding its powers. The Grand Chamber seems to have done what the dissenters hoped for: it confirmed one of the ‘basic limits’ the Court has to respect. The judgment emphasises that however strongly inclined the Court may be to address a topic, perhaps in the general interest, the Court has to stay within the scope of the complaint.
This judgment clarifies the limitations of the role as master of characterisation and the jura novit curia principle. Strasbourg watchers may monitor future caselaw for discovering the Court’s motives for fulfilling its role as master of characterisation and the consistency with which it does or doesn’t make use of its role.