EHRM, 09-10-2012, nr. 29723/11

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.

Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Uj v. Hungary, no. 23954/10, § 20, 19 July 2011).

The same is true when the persons concerned are members of the armed forces, because Article 10 applies to them just as it does to other persons within the jurisdiction of the Contracting States. However, the proper functioning of the armed forces is hardly imaginable without legal rules designed to prevent servicemen from undermining the requisite discipline, for example by writings (see Engel and Others, cited above, § 100; Hadjianastassiou v. Greece, 16 December 1992, § 39, Series A no. 252; Vereinigung demokratischer Soldaten Österreichs and Gubi, cited above, § 36).

Consequently, account must be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, the national courts are in a better position than an international one to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 68, ECHR 2004-XI).

However, that margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § 77, ECHR 2003-I, and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X). The Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation can be reconciled with the Convention provisions relied upon (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 60, ECHR 1999-III; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 41, 21 September 2010; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith. The Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I).

In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were ‘relevant and sufficient’, and whether the measure taken was ‘proportionate to the legitimate aims pursued’ (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Csánics v. Hungary, no. 12188/06, § 37 in fine, 20 January 2009).

Furthermore, 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 (see Palomo Sánchez and Others, cited above, § 56). Furthermore, there is little scope for restrictions on debates on matters of public interest (see Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996-V; Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999-IV).

In the present case, the Hungarian authorities were required to balance the applicant's right to freedom of expression, as guaranteed by Article 10 of the Convention, against her obligations in the context of a service relationship. As pointed out above, Article 10 of the Convention does not guarantee an unlimited freedom of expression; and the prevention of disorder within the armed forces constitutes a legitimate aim permitting a restriction of that freedom of expression. If the reasoning of the domestic courts' decisions concerning the limits of freedom of expression in cases involving the prevention of disorder — in the present case, the prevention of insubordination inside the police force — is sufficient and consistent with the criteria established by the Court's case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, mutatis mutandis, Palomo Sánchez and Others, cited above, § 57; and MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011).

The Court would add that in order to assess the justification of the statements in question, a distinction needs to be made between statements of fact and value judgments, in that, while the existence of facts can be demonstrated, the truth of value judgements is not susceptible of proof. The requirement to prove the truth of a value judgment is generally impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Oberschlick v. Austria (no. 1), cited above, § 63). The classification of a statement as a fact or a value judgment is a matter which, in the first place, falls within the margin of appreciation of the national authorities, in particular the domestic courts (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004-XI). However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it may be excessive (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001—II).

The Court notes that, in some statements published on the website under her effective editorial control, the applicant brought up labour issues, such as outstanding remunerations, which concerned servicemen including trade union members (see paragraph 8 above, quotation 1). However, she also 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 (see paragraph 8 above). For the Court, these latter 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. In this connection, the Court would reiterate that paragraph 2 in fine of Article 11 indicates that the State is bound to respect the freedom of association of its employees, subject to the possible imposition of lawful restrictions on the exercise by members of its armed forces, police or administration of the rights protected in that Article; however, the restrictions imposed on the three groups mentioned are to be construed strictly and should therefore be confined to the ‘exercise’ of the rights in question, that is, these restrictions must not impair the very essence of the right to organise (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 96–97, ECHR—2008). The Court will apply the same approach in the context of Article 10 and stresses that the right to freedom of expression pertains to all, including members of the armed forces.

In its analysis of the proportionality of the punitive measures curtailing the applicant's right to express critical views, the Court will consider the extent to which the right to freedom of expression of a member of the police force can be restricted in order to prevent disorder within the police, a hierarchically organised body where discipline is quintessential for the carrying out of its functions. For the Court, some of the impugned statements (concerning in particular outstanding remunerations) are clearly related to trade union activities and their sanctioning therefore appears difficult to reconcile with the prerogatives of a trade union leader. Moreover, the attack on the Head of the National Police Department is a pure value judgment and enjoys as such a high level of protection under Article 10.

The Court also notes that in regard to some other utterances the domestic courts, rather surprisingly, refused to accept evidence (see paragraph 7 above), which fact alone would have cast doubt on the legitimacy of the sanction imposed on the applicant, had that sanction been applied for that sole reason.

However, in any event, the Court shares the views of those courts regarding the nature of the views expressed about the practice of senior police management. It accepts that those allegations — in particular the ones accusing senior police management of political bias and agenda, transgressions, unprofessionalism and nepotism — were, even if representing predominantly value-judgments, indeed capable of causing insubordination since they might discredit the legitimacy of police actions, all the more so since the applicant did not provide any clear factual basis for those statements. 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.

The Court finds that the protection of loyalty and the trust in the constitutionality of police leaders' actions is not a matter of administrative convenience. The applicant, 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 (see also Rekvényi v. Hungary [GC], no. 25390/94, § 43 in fine, ECHR 1999-III) — and this even in the face of the general interest attached to enabling criticism as to transparency, professionalism and law-abiding within the police force. The Court notes that, by entering the police, the applicant 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 such cases (see paragraph 26 above), the maintenance of discipline by sanctioning accusatory opinions which undermine the trust in, and the credibility of, the police leadership represents a ‘pressing social need’, and the reasons adduced by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30), especially in view of the relatively mild sanction imposed on the applicant — demotion and a fine — which cannot be regarded disproportionate in the circumstances.

The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 10 read in the light of Article 11 of the Convention.