independence, accountability, impartiality, freedom of expression

Freedom of Expression and Association

Fővárosi Közigazgatási és Munkaügyi Bíróság

Budapest Administrative and Labour Court

70.M.1051/2018/36

10 May 2019

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Hungarian courts reversed a disciplinary decision which ordered the removal of a prosecutor as a disciplinary sanction for undermining the authority of the prosecution service by his Facebook posts. The courts found the prosecutor's removal disproportionate and imposed a milder sanction, namely demotion by one pay grade, on him.

freedom of expression of prosecutors, prohibition of political activity, disciplinary proceedings, removal from office as a disciplinary sanction

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The Fundamental Law of Hungary; Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and Other Prosecution Employees and the Prosecution Career;  Act CLXIII of 2011 on the Prosecution Service; Recommendation on the Ethics for Prosecutors; Act I of 2012 on the Labor Code.

In the court proceedings, the prosecutor acknowledged that he published the impugned Facebook posts on his own Facebook page which were later deleted by him. The court argued that by sharing these contents, the prosecutor allowed his friends to get to know and comment on these posts, and also to make them accessible outside Facebook.  So the process of obtaining the posts by his superiors was not unlawful.  The court of first instance stressed that the respective contents were shared on the prosecutor's Facebook page, so they were not directly accessible to a large audience; the posts did not receive high visibility. However, his Facebook friends knew that he worked as a prosecutor, which was relevant regarding the first post, which referred to the politician as an "accused". The court held that prosecutors cannot suggest that they laugh at any parties to the proceedings. Such statements undermine the authority of the prosecution service in general, even if they are not made within the context of ongoing proceedings. Consequently, regarding the first post, he committed a disciplinary offence. Concerning the second and third posts, the first instance court found that they were made within the prosecutor's private life and this conduct did not qualify as political activity. Prosecutors can exercise their freedom of expression guaranteed by Article IX(1) of the Fundamental Law, and the impugned statements were afforded constitutional protection. Also, there was no evidence that the impugned statements had any impact on the prosecutor's work or the impartiality and independence of the organization. Taking into account the audience, these posts did not impose any direct harm on the public perception of the prosecution service. The court further noted that personal communication between private individuals, even if it took place in a Facebook group, did not constitute political activity. Overall, the court concluded that the prosecutor committed a disciplinary offence, but the impugned post imposed only little harm on the reputation of the prosecution service, so his dismissal was disproportionate.  The prosecutor was reinstated in his office and subject to demotion as a disciplinary sanction. Higher courts upheld the first-instance decision. Regarding the first post, the appeal court stressed that the prosecutor did not criticize or make factual statements concerning the activity of the MP, and referring to him as an "accused" did not make the impression that he had official knowledge about the MP being already or soon becoming a suspect in pending criminal proceedings. Concerning the two additional Facebook posts, the appeal court noted that freedom of expression is a basic civil right guaranteed by the Fundamental Law which can only be subject to necessary and justified limitations. While prosecutors' freedom of expression can be limited in accordance with the rules regulating their official and private conduct, there is no relevant jurisprudence or academic literature which can help delineate the reasonable limits of prosecutors' free speech. Besides the recommendation on prosecutors' ethics, no further regulation exists in this field.  Using Facebook is therefore not prohibited for prosecutors,  and in the absence of specific guidelines or requirements set by their employer, prosecutors can use social media at their own discretion, according to their individual sense of justice. The respective contents were published in a closed Facebook group, so these posts do not qualify as public statements. Nevertheless, the first post violated the ethical rules for prosecutors. However, the same does not apply to the second and the third posts, they remained within the scope of constitutionally protected speech. They were not offensive or derogatory and publishing them did not constitute political activity either. The appeal court highlighted that political activity can be defined as an "intentional and active conduct with substantial political content which transcends the private sphere and reaches the public directly". This was not the case with the respective posts. In the review proceeding, the Kúria (Supreme Court of Hungary) sided with the lower courts. Regarding the gravity of the disciplinary offence, it highlighted that the prosecutor's first post did not concern and result in the breach of his fundamental official duties. Also, the fact that the prosecution service conducted investigations in the criminal proceedings referred to in the news article shared by the prosecutor did not affect the gravity of the misconduct; the prosecutor himself was not involved in those proceedings. As for the second and third posts, the Kúria noted that while the Fundamental Law prohibits prosecutors from being members of a political party or engaging in political activity, there is no law which defines the term "political activity". The applicant (the prosecutor) invoked only the Act on the Electoral Procedure which states that communication between private individuals does not constitute an electoral campaign. According to the Kúria, political activity, in the narrow sense, refers to the activity of political parties to obtain or retain power. Besides, political activity can cover activities of criticizing government policies before the large public, while openly inviting or encouraging the audience to take active action. However, sharing pictures or expressing an opinion in a closed Facebook group does not qualify as political activity, rather falls within the ambit of freedom of speech.

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