CASE OF SZIMA v. HUNGARY
Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) read in the light of Article 11 - (Art. 11) Freedom of assembly and association
András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
5. The applicant was born in 1960 and lives in Szekszárd. 6. The applicant, a retired senior police officer, was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff. 7. The applicant was indicted for instigation to insubordination. On 29 April 2010 the Military Bench of the Budapest Regional Court found her guilty as charged and sentenced her to a fine and demotion. The court did not sustain the applicant’s defence according to which the publication of such allegations belonged to the core of a trade union’s activities. It held that those allegations were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity. 8. The Regional Court based its judgment inter alia on the following statements published by the applicant on the Internet: (1) “The staff are regularly required to work overtime without remuneration...” “For years, clearly due allowances have not been paid to low-ranking staff...” “Currently it is almost a prerequisite of becoming a senior police officer to have a political background or to be a relative or a descendant of other senior police officers.” “The senior police officers’ obvious violations of the law set a bad example for the force.” “This is typical of senior police officers: they commit violations and infringements, and then, if we point this out, their reaction is striking back without any principles, suing and accusing of incitement in order to counter our suggestions to renew and clean up the force.” “Why are we wondering at the infringements of police officers if law-breaking and tyrannising senior police officers go unpunished?” (2) “The uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished, and what is more, they are even decorated when, on order of the political authority in power, thousands, tens of thousands of discontented and underprivileged people are beaten by jaded police officers on the streets.” “The ‘Tettrekész’ Police Trade Union commiserates with those Hungarian citizens whose human dignity and human rights were violated and affronted by acts of a prostituted leadership and of our criminal ‘colleagues’ and apologises for that.” (3) “Police staff are getting more and more underprivileged and humiliated by their own leaders.” “Some senior police officers are active in trying to obtain that average citizens be punished rather than ‘served and protected’ by the police officers on the streets.” “Some well-paid senior police officers unprofessionally incite ordinary citizens and police officers against each other.” “We constantly request the review of the often unprofessional selection procedure of senior police officers, but to no avail, because there is apparently no need for a citizen-friendly police.” (4) “The senior police officers again demonstrated that they were incapable of upholding the public order in a party-neutral and politically neutral way... It is proven again that the Hungarian Police’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led Hungary into economic and moral distress.” “The reputation of the Police has reached previously unseen depths because of the acts of the unprofessional and anti-national senior police officers non-complying with the spirit of the police oath.” “It is obvious that the Police’s core leadership is, in an unacceptable way, politically committed to the government of the country and that of the capital.” (5) “The Head of the National Police Department is demonstrating every day that he is much more able to write obscene poems than to lead the Police; moreover, he is considerably much better in being an obstacle to the work of ‘Tettrekész’ Police Trade Union and in managing a police pop band than in cooperating with a representative trade union of the Police with the highest number of police officer members.” “A chaotic and highly unprofessional leadership is ruining the rest of the Police’s reputation from day to day.” 9. On 8 December 2010 the Military Bench of the Budapest Court of Appeal upheld the applicant’s conviction under section 357 of the Criminal Code. It held that the publication of the documents by the applicant had gone beyond her freedom of expression, given the particularities of the armed body to which she belonged. In the court’s opinion, the views contained in the documents constituted one-sided criticism whose truthfulness could and should not be proven. 10. Act No. XX of 1949 on the Constitution (as in force at the material time) provides as follows: “(1) In the Republic of Hungary everyone shall have the right to good reputation, the inviolability of his home, and the protection of privacy and personal data.” “(1) In the Republic of Hungary everyone shall have the right to freedom of expression and to receive and impart information of public interest.” 11. Act no. XLIII of 1996 on the Service of Members of Professional Staff of the Armed Forces provides as follows: “(1) Members of professional staff of the police force and of the civilian national security services shall not be members of a political party and shall not engage in political activities. (2) Members of professional staff shall not hold a position in a political party and shall not undertake public appearance in the name or interest of a political party, apart from standing as a candidate in parliamentary, European or municipal elections. (3) Members of professional staff shall not engage in political activities at the place of service or while performing service tasks. (4) Except for the case regulated under section 69, members of professional staff shall not criticise, or express an opinion about, a measure or order received unless they do so within the scope of their activities securing rights and interests; moreover, they shall not make statements injurious to the order and discipline of the service and shall not express a private opinion in official proceedings by using media publicity. (5) Members of professional staff shall not produce or disseminate publications harmful to the order and discipline of the service and shall not place such posters, announcements or emblems anywhere. (6) Announcements of the professional members’ representation organisations falling within their scope of activities may be published in the locally customary manner. ...” “(1) For the purposes of this Act, “trade union” shall mean any representation organisation – irrespective of its actual designation – of members of professional staff, whose aim is the representation and protection of the service-related interests of members of professional staff. (2) The trade union shall be entitled to a) operate within the armed forces and to involve its members in its activity; b) provide information for the members of professional staff about their rights and duties affecting their financial, social, cultural, living and service conditions; c) represent its members vis-à-vis the organisational unit or before state organs in respect of issues affecting their service relationship or – upon authorisation – before a court or other authority or body in respect of issues affecting their living- and service conditions. (3) The trade union shall have the right to exercise the following rights vis-à-vis the organisational unit: a) may request information on any issues related to members of professional staff’s service-related financial, social and cultural interests; b) may communicate its position and opinion on the commander’s (head’s) measure (decision) concerning an issue falling under point a) to the commander in charge of the unit and may initiate consultations in such matters; c) may, during official working hours or – in justified cases – in service hours check observance of the rules governing service and working conditions – including healthy and safe service performance – and may request information and data on the implementation of those rules, which information and data shall be provided for the trade union. Such checks may not endanger or hinder the performance of the service tasks. (4) The trade union may draw the attention of the head of the organ in charge of the implementation of the rules to the shortcomings and omissions perceived in the course of the check. If the head fails to take the necessary action in due time, the trade union may institute appropriate proceedings. The body having conducted the proceedings shall be obliged to inform the trade union of the findings of the proceedings. (5) The rights specified under subsections (3)-(4) shall, in respect of issues falling into the supervisory bodies’ scope of direction, be vested in the representative trade union within the given organisation. ...” “(1) While performing their service, members of professional staff shall be obliged to execute the orders of a supervisor or the instructions of a superior officer, unless they would commit a criminal offence thereby. (2) Except for the case specified in subsection (1), members of professional staff may not refuse the execution of an unlawful order. Where, however, the unlawful nature of the order was recognised, it shall immediately be drawn to the superior officer’s attention. If the supervisor upholds his order or the superior officer upholds his instruction, it must – upon request – be given in writing. Liability for the execution of an unlawful order or provision shall be borne solely by the issuer of the order or the instruction. ...” “(1) Members of professional staff or – upon their authorisation and on their behalf– a representation organisation or an attorney at law may file a service complaint if they find prejudicial a service-related decision, measure or their omission, not regulated under section 195 of this Act. (2) A service complaint against an employer’s measure in connection with the termination of the service relationship, establishment of conflict of interest, or the unilateral modification of the service relationship by the armed forces affecting the member’s position, shall be filed by the member of professional staff within 15 days from the communication of the employer’s measure. In other cases service complaints shall be filed within the period of limitation applicable to the enforcement of the claim at issue. (3) The complaint shall be filed with the supervisor who took (omitted to take) the decision and who shall – in case he fails to grant it – transfer the case, together with the case files, to the supervisor-commander without delay. Unless specified otherwise under the law, the supervisor-commander shall decide on the complaint within 30 days and shall communicate his decision to the complainant. This time limit may be extended on one occasion for another 30 days. (4) No person shall be restricted in exercising his right to file a complaint. No complainant shall suffer any detriment in case his complaint is found ill-founded, except where intentional infringement of discipline, regulatory offence, or a criminal offence has been committed. (5) The exercise of the right of complaint specified in another law shall not be affected by this Act.” “(1) A first instance decision related to the service relationship and taken in proceedings conducted within the armed forces may – unless this Act provides otherwise – be challenged by a member of professional staff by filing a complaint ... or an appeal ... against the decision within 15 days from its service. (2) Appeal against a decision brought in relation with the service obligations of a deceased member of professional staff may be lodged by a close relative. (3) The complaint or appeal shall – unless this Act provides otherwise – be determined within 30 days by the service supervisor or the organ designated by the minister. This time-limit may be extended on one occasion for another 30 days.” 12. Act No. IV of 1978 on the Criminal Code provides as follows: “(1) Anyone who incites discontent among soldiers towards a superior, a command or in general towards the order of service or discipline, is guilty of a misdemeanour punishable by imprisonment of up to one year. (2) The punishment shall be imprisonment for up to three years if: a) the incitement is committed in the course of the performance of service; b) the incitement entails considerable disadvantage for the service or discipline.”