Short analysis of judgment ECtHR on freedom expression of president labour union, in relation to freedom of association. Disciplinary sanction because of insubordination

Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2013-1/1European Court of Human Rights: Szima v. HungaryThe applicant in this case, Ms Judit Szima, was the chairperson of the Tettrekész Police Trade Union. She publisheda number of writings on the Trade Union’s website, which was effectively under her editorial control. In some ofthese writings she sharply criticized the police management, also referring to outstanding remunerations due topolice staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of seniorpolice staff. In 2010 Szima was convicted for instigation to insubordination. The Military Bench of the BudapestCourt of Appeal confirmed her sentence as a fine and demotion. It held that the publication of the posted articlesand statements on Tettrekész’s website had gone beyond Szima’s freedom of expression, given the particularitiesof the armed body to which she belonged. According to the Hungarian authorities, the views contained in thewebsite articles constituted one-sided criticism whose truthfulness could and should not be proven.The Strasbourg Court confirms that the accusations by Szima of the senior police management of political biasand agenda, transgressions, unprofessionalism and nepotism were indeed capable of causing insubordination. TheCourt also observes that “it is true that Szima 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 torelate her offensive value judgments to facts”. The Court is of the opinion that Szima “has uttered, repeatedly,critical views about the manner in which police leaders managed the force, and accused them of disrespectof citizens and of serving political interests in general”, and that these views “overstepped the mandate of atrade union leader, because they are not at all related to the protection of labour-related interests of trade unionmembers “ (§ 31). In view of the margin of appreciation applicable, in order to maintain discipline by sanctioningaccusatory opinions that undermine trust in, and the credibility of, the police leadership, the European Courtaccepts that there was a sufficient “pressing social need” to interfere with Szima’s freedom of expression. It alsofound that the relatively mild sanction imposed on the applicant - demotion and a fine - could not be regarded asdisproportionate in the circumstances. By six votes to one, the Court concluded that there has been no violationof Article 10 read in the light of Article 11 of the Convention.The outcome of the case is somewhat surprising, as the Court firmly took as its starting point that “the membersof a trade union must be able to express to their employer their demands by which they seek to improve thesituation of workers in their company. A trade union that does not have the possibility of expressing its ideasfreely in this connection would indeed be deprived of an essential means of action. Consequently, for the purposeof guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensurethat disproportionate penalties do not dissuade trade union representatives from seeking to express and defendtheir members’ interests” (§ 28).As the sole dissent, the president of the Chamber, Judge Tulkens, vehemently disagreed with the reasoning ofthe Court. Tulkens refers to the finding by the Court’s majority that Szima’s critical remarks had overstepped themandate of a trade union leader, because some of them were “not at all related to the protection of labour-relatedinterests of trade union members”. Tulkens wonders whether the Court itself has not overstepped its mandate bycasting this judgment on the role of a trade union leader and on the “legitimate” scope of trade-union activities.In Tulkens’ view, the majority of the Court dismissed artificially the trade-union dimension of this case and, alsoneglected the importance of freedom of expression in a democratic society.• Judgment by the European Court of Human Rights (Second Section), case of Szima v. Hungary, nr. 29723/11 of 9 October 2012http://merlin.obs.coe.int/redirect.php?id=16185ENDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityIRIS 1for the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Case of Szima v. Hungary

https://biblio.ugent.be/publication/3155833/file/6787396

European Court of Human Rights: Case of Szima v. Hungary

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