28 September 2022

ECLI:CE:ECHR:2022:0628JUD003658417

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Article 8 of the Convention (private life)

Article 10 of the Convention (freedom of expression)

Baka v. Hungary (Application no. 20261/12)

Private life – leak of data to the press – disciplinary measures – freedom of expression of judges

The case addresses the inadequate performance of the courts regarding the investigation of a crime affecting the privacy of judges. The lack of diligence prevented the identification of the official who leaked police documents containing personal data to the press. The case also addresses whether the handling of disciplinary proceedings for signing a document with political content constitutes an infringement of the right to freedom of expression.

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In February 2014, twenty Spanish judges working in Catalonia signed a manifesto expressing their legal opinion on the possibility of holding a self-determination referendum on the political future of the region. The manifesto argued that holding the referendum was compatible with the Constitution and international law.

On 3 March 2013, the newspaper "La Razón" published a report under the title "The conspiracy of the thirty-three separatist judges" which contained photographs and personal details of the judges who signed the manifesto. The information was extracted from police databases. Consequently, the judges filed criminal actions for discovery and disclosure of secrets (Article 147 of the Criminal Code) and disloyalty in the exercise of custody of documents (Articles 415 and 417 of the Criminal Code). In the first instance (Court number 15 of Madrid) and second instance (Provincial Court of Madrid), given the impossibility of knowing the author of the leak, the courts decided to close the proceedings.

Moreover, at the request of the "Clean Hands" trade union, the General Council of the Judiciary initiated disciplinary proceedings against the judges who signed the manifesto. However, the proceedings ended without sanction and recognizing the judges' freedom of expression.

In the present case, the ECtHR assessed whether the actions or inaction of the Spanish authorities, the courts and the General Council of the Judiciary respectively, have infringed the judges' rights to privacy and freedom of expression [Art. 8 & 10 of the Convention]. Before addressing the merits of the case, the Court made two observations that deserve to be highlighted regarding the admissibility criteria.

In the Spanish legal system, fundamental rights can be protected by means of criminal or civil proceedings. The Court recalls that insofar as both procedures have the same purpose, the State cannot claim that the appellants have not exhausted the previous avenues by not using both mechanisms. As far as the appellants are concerned, the Court emphasizes the subsidiary nature of the remedy. Thus, if the civil liability of the newspapers was not claimed before the national courts, it cannot be claimed afterwards before the European Cour of Human Rights.

In relation to the violation of Article 8 of the Convention, the Court declares that the protection of the right to privacy not only obliges the State to refrain from any action that would infringe it, but also imposes on the State a duty to act and adopt the measures necessary to guarantee the effectiveness of that right. Accordingly, the Court considers that the infringement of the judges' right to privacy has been violated at two different moments. Firstly, the mere fact that the police drafted a report containing photographs and observations of a political nature of the judges who signed the manifesto, without there being any legal provision authorising them to do so and without the judges having committed any offence, constitutes an infringement of their right to privacy.

Secondly, the Court considers it undeniable that the administration alone was able to leak the police report to the national press for subsequent publication. Although the national courts claimed that it was impossible for them to identify those responsible for the leak, the Court alleges that the inability to identify those responsible for the leak was the result of a flawed process in which the duty of investigation was not fully complied with. By way of example, the fact that the chief of the police of Barcelona was not summoned by the Spanish authorities is considered as evidence of the State's lack of diligence. Even though he was the head of the office and the addressee of the report, the courts did not consider it appropriate to summon him to testify. On this basis, the Court considers that the State failed to comply with its positive obligations to ensure the integrity of Article 8 of the Convention.

On the contrary, the Court did not consider that there was a violation of Article 10 of the Convention. Although it is true that the General Council of the Judiciary did initiate disciplinary proceedings against the judges who signed the political manifesto. The Court emphasizes that the proceedings were not initiated ex officio, but at the request of a party, following a complaint from the Clean Hands trade union. And, in any case, the Council decided not to sanction the judges because it considered that the signing of a document of a political nature fell within the scope of their right to freedom of expression.

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Consistent interpretation

The Strasbourg Court in its reasoning cites various precedents of its own, but at no point does it resort to precedents of other jurisdictions. Notably, throughout the text there are no references to the case law of the Court of Justice of the European Union. Therefore, there is no judicial dialogue between international jurisdictions. In relation to the judges' right to freedom of expression, it is worth noting that the court cites among other judgments, the case of Baka v. Hungary, no.20261/12, June 23, 2016.

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https://hudoc.echr.coe.int/fre#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-218034%22]}

David Mier Galera, Universitat Pompeu Fabra (UPF)