CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 février 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s165D87C7 { width:21.45pt; display:inline-block } .s36C2A830 { width:109.72pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION DECISION Application no. 65717/14 Rasa AUGUSTĖ against Lithuania   The European Court of Human Rights (Fourth Section), sitting on 26   February 2019 as a Committee composed of:   Paulo Pinto de Albuquerque, President,   Egidijus Kūris,   Iulia Antoanella Motoc, judges, and Andrea Tamietti, Deputy Section Registrar, Having regard to the above application lodged on 25 September 2014, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Rasa Augustė, is a Lithuanian national, who was born in 1969 and lives in Klaipėda. She was represented before the Court by Ms   G. Cimbolienė, a lawyer practising in Vilnius. 2.     The Lithuanian Government (“the Government”) were represented by their Agent, most recently Ms Lina Urbaitė. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant is a judge of the Klaipėda City District Court. 1.     First set of disciplinary proceedings against the applicant 5 .     O.G., an authorised representative of the claimant A.V., lodged a complaint before the Klaipėda Regional Court concerning the actions of the applicant, namely the improper delivery of a procedural document which allegedly precluded A.V.’s effective access to court. 6 .     In May 2012 the President of the Klaipėda City District Court formed a commission to carry out an investigation into O.G.’s complaint. In June   2012 the commission submitted a report where it held that the applicant had not accepted A.V.’s separate complaint and had sent it back to the wrong address. Also, the applicant had decided to extend the time-limit to submit a separate complaint instead of renewing the time-limit to submit that complaint (this text was later corrected and it was indicated that the time-limit had to be renewed, and it was not clear for the commission whether this was done before or after the examination of the applicant’s actions – see paragraph 7 below). As a result, the separate complaint was not transferred for examination at the Klaipėda Regional Court for more than three months, and it was a clear protraction of proceedings. The applicant submitted her comments and claimed that she had renewed the time-limit to submit the separate complaint and found it shocking that the commission of the Klaipėda City District Court suggested that the text had been corrected. 7 .     As there were contradictions between the report of the commission and the applicant’s comments, in June 2012 the president of the Klaipėda Regional Court decided to form a commission to verify the reasonableness of the report in the light of the applicant’s comments ( dėl komisijos Klaipėdos miesto apylinkės teismo komisijos išvadų ir šio teismo teisėjos Rasos Augustės pastabų pagrįstumui įvertinti sudarymo) . The new commission’s report was submitted in July 2012. It stated that the applicant had been negligent when acting as a judge and had not taken certain procedural actions in a timely manner. It was also noted that the resolution of the applicant to prolong the time-limit to submit a separate complaint was corrected (see paragraph 6 above). The commission suggested submitting the applicant’s case to the Judges’ Ethics and Disciplinary Commission, which decided to start disciplinary proceedings against the applicant and referred the case to the Judges’ Court of Honour. In March 2013 the Judges’ Court of Honour found that the applicant had decided to send some procedural documents not to the address indicated by a claimant but to another one, despite the fact that the applicant had known that the claimant had not been living there. The court held that the applicant had breached the duty to carry out her functions flawlessly, in a timely manner, professionally and not to protract the court proceedings. Nevertheless, the Judges’ Court of Honour decided not to impose any disciplinary penalty. 8 .     The applicant appealed against the decision of the Judges’ Court of Honour (see paragraph 19 below) but in May 2013 the Supreme Court dismissed her appeal. 2.     Second set of disciplinary proceedings against the applicant 9.     In April 2013 the President of the Klaipėda Regional Court, on the basis of information submitted by the judges of the Klaipėda Regional Court, asked the Judicial Council, a body assuring the independence and self-governance of judges, to assess the applicant’s actions possibly protracting the examination of civil cases. The President of the Klaipėda Regional Court indicated that in certain civil cases, especially in cases concerning the issue of the court’s orders, the orders in question had not been issued for over six months and obligations set by a higher court had been ignored. More specifically, the applicant had ignored the Klaipėda Regional Court’s decisions and deliberately disclosed her views on her disagreement with these decisions to the parties in civil proceedings, thus diminishing the courts’ authority to the public. The applicant relied on the case-law of the European Union Court of Justice (hereinafter, “the CJEU”), although the Klaipėda Regional Court had already interpreted this particular case-law differently. The applicant’s interpretation resulted in the protraction of proceedings. The President of the Klaipėda Regional Court referred to the first set of disciplinary proceedings against the applicant (see paragraphs 5-8 above) and stated that the applicant’s behaviour had already been assessed as contrary to that which corresponds to the behaviour required from the judge (see paragraph 20 below). The President of the Klaipėda Regional Court stated that after the first set of disciplinary proceedings, the applicant reported the judges of the commission of the Klaipėda Regional Court and the President of the court to the Judges’ Ethics and Disciplinary Commission. 10.     In May 2013 the president of the Judicial Council decided to examine the applicant’s actions and formed a commission, which announced the results of the examination in July 2013. The commission held that the applicant was negligent in the performance of her judicial duties ( aplaidžiai atliko savo pareigas ). It established a number of occasions when the applicant had not taken a decision in a timely manner and considered that such behaviour had been systematic. The necessity to follow the established case-law of the Supreme Court and the CJEU did not refute the obligation to also follow the instructions of a higher court, namely the Klaipėda Regional Court (see paragraph 21 below). 11.     On the basis of that conclusion, in September 2013, the Commission decided to start disciplinary proceedings against the applicant and transferred the case to the Judges’ Court of Honour. The applicant decided not to participate in the proceedings because, in her opinion, the hearing would not be fair. 12 .     In December 2013 the Judges’ Court of Honour held that the Code of Civil Procedure established several forms of simplified proceedings and the issue of the court’s order was one of them. Its main task was to simplify and accelerate the courts’ work in simple and clear cases. The Judges’ Court of Honour accepted the applicant’s argument that the judge had to carefully read all the documents of the case but noted that he or she could not create artificial obstacles for someone to start court proceedings. The court also held that the applicant had unreasonably protracted the proceedings in the cases on the issue of the court’s order and that she had been negligent in performing her judicial duties, neglected court precedent, did not wish to acknowledge her mistakes and lacked self-criticism. The Judges’ Court of Honour also stated that in the present case it was not assessing the reasonableness of the decisions taken by the applicant and considered that disciplinary responsibility had been applied not because she had taken certain procedural actions but because she had not performed her judicial duties in a manner that would protect the courts’ authority from being discredited. The court decided to impose a strict reprimand on the applicant. 13 .     The applicant appealed. In March 2014 the Supreme Court upheld the decision of the Judges’ Court of Honour. The court noted that the strict reprimand had been imposed on the applicant because, when examining civil cases regarding the issue of the court’s order, she had breached the requirements of domestic law, applied the legal norms too formalistically and failed to follow the rules created by higher courts, therefore ignoring the court precedent. The court also noted that it would not be reviewing the decisions which the applicant had taken in her capacity as a judge, or the Klaipėda Regional Court’s rulings regarding those decisions because to do so would mean evaluating how the lower courts had been interpreting and applying the law, and the Supreme Court could not perform such task in the abstract. The Supreme Court continued that firstly, the applicant refused to accept requests for court’s orders asking to correct some shortcomings knowing that they were not shortcomings. Secondly, the applicant repeatedly and directly expressed her disagreement with decisions taken by the Klaipėda Regional Court where her own decisions had been annulled. The court further held that by not following the rules of a higher court and continuing to interpret the law in a way that had already been declared unfounded in the same case by a higher court, the applicant had provoked mistrust of the law and of the court system and had undermined the internal consistency of that system for the parties’ to the proceedings and the public in general. 3.     The case of Judge G.V. 14 .     In her complaints to the Court, the applicant compared her case to that of Judge G.V. 15 .     In 2013 Judge G.V., who was a judge at the Vilnius District Court, did not grant a prosecutor’s request to detain a suspect. As a result, the suspect fled Lithuania. Judge G.V. was blamed for having acted negligently. 16 .     In June 2013 during the same sitting when the applicant’s disciplinary liability was discussed, the Judicial Council also examined the matter of Judge G.V.’s disciplinary liability. One of the members of the Judicial Council stated that in her view a judge could not incur disciplinary liability on the basis of a procedural decision that he or she had taken. The Judicial Council decided that more information was needed and decided to postpone the issue whether to start disciplinary proceedings against Judge G.V. During the sitting in August 2013, the Judicial Council decided that it was necessary to apply to the Constitutional Court with a request to interpret certain provisions of the earlier ruling of that court. The case was resumed in April 2014, where it was decided not to start the external supervision of the activities of Judge G.V. B.     Relevant domestic law and practice 17 .     Article 33 § 4 of the Law on Courts provided that when issuing decisions in cases of equivalent categories the courts were bound by the rules of interpretation of law created by them, formed in analogous or similar cases. The courts of lower instance when issuing decisions in cases of equivalent categories were bound by the rules of interpretation of the law formulated by the higher courts in analogous or similar cases. 18 .     Article 83 § 2 of the Law on Courts provides that a disciplinary action could be brought against a judge for an action discrediting the judiciary and violation of other requirements of the Code of Ethics of Judges. Article 83 § 3 provides that an action discrediting the judiciary is an act of a judge that is contrary to the judge’s honour and requirements of the Code of Ethics of Judges, by which the judiciary is discredited and its authority is undermined. Any disciplinary offence, such as negligent performance of a certain duty or failure to carry out such duty without any justified reason can also be declared as an action discrediting the judiciary. 19 .     Article 86 § 3 of the Law on Courts provides that a decision of the Judges’ Court of Honour can be appealed against within ten days from its issue to the Supreme Court. 20 .     The Judges’ Code of Ethics provides that in accordance with the principle of dutifulness a judge must fulfil his or her duties flawlessly, in a timely manner, professionally, has to analyse the substance of the pending cases but has not to protract court proceedings (Article 15 §§ 3 and 4). 21 .     On 28 March 2006 the Constitutional Court held that when issuing decisions in cases of equivalent categories the lower courts of general jurisdiction were bound by decisions of higher courts of general jurisdiction – precedents in similar cases. Higher courts could not interfere in cases considered by lower courts of the same jurisdiction, nor give them any instructions, either obligatory or recommendatory, on how equivalent cases had to be decided. 22 .     On 24 October 2007 the Constitutional Court further elaborated on the doctrine on court precedents. It stated: “Court precedents are sources of law – auctoritate rationis; the reference to the precedents is a condition for the uniform (regular, consistent) court practice as well as that of implementation of the principle of equity entrenched in the Constitution. Therefore, it is not permitted to unreasonably ignore court precedents. In order to perform this function properly, the precedents themselves should be clear. Court precedents may not be in conflict with the official constitutional doctrine, either. On the other hand, it is not permitted to overestimate, let alone make absolute, the significance of court precedents as sources of law. Court precedents must be invoked with particular care. It needs to be emphasised that in the course of consideration of cases by courts, only those previous decisions of courts have the power of a precedent, which were created in analogous cases, i.e. the precedent is applied only in those cases whose factual circumstances are identical or very similar to the factual circumstances of the case in which the precedent was created, and with regard to which the same law should be applied as in the case in which the precedent was created. In a situation where there is competition of precedents (i.e. when there are several differing court decisions adopted in analogous cases) one must follow the precedent that was created by the court of higher instance (a higher court). Also, account should be taken of the time of the creation of the precedent and of other factors of significance, as, for instance: of the fact whether the corresponding precedent reflects the established court practice, or whether it is a single occurrence; of whether the reasoning of the decision is convincing; of the composition of the court that adopted the decision (whether the corresponding decision was adopted by a single judge, or by a college of judges, or whether by the enlarged college of judges, or whether by the entire composition of the court (its chamber)); whether there were any dissenting opinions of judges expressed because of the previous court decision; of possible significant (social, economic etc.) changes which took place after the adoption of the corresponding court decision, which has the significance of a precedent, etc. As mentioned before, in cases when the correction of court practice is unavoidably and objectively necessary, the courts may deviate from the previous precedents, which had been binding on the courts until then, and create new precedents, however, it must be done by properly (clearly and rationally) arguing it. It needs to be specially emphasised that, when deviating from its previous precedents, the court must not only properly argue the adopted decision itself (i.e. the created precedent itself), but also clearly set forth the reasoning and the arguments substantiating the necessity to deviate from the previous precedent.” 23 .     On 10 March 2014 the Constitutional Court interpreted its earlier ruling and stated that disciplinary liability could be imposed on judges if they performed judicial duties negligently but not if their procedural decisions were quashed by a higher court. The issue of whether the behaviour of a particular judge was discrediting his or her name had to be decided after all the circumstances related to that behaviour and significant to the case were assessed. COMPLAINTS 24.     The applicant complained under Article 10 of the Convention that she was punished for her opinions in deciding cases. She also complained under Article 14 of the Convention, taken in conjunction with Article 10, that she was discriminated against because of her disagreement with the decisions of the Klaipėda Regional Court and because in the case of Judge G.V. the Judicial Council did not initiate disciplinary proceedings (see paragraph 16 above) and in her case it proceeded with them, imposing a disciplinary sanction. THE LAW 25.     The applicant complained that she received a disciplinary sanction because of her opinions taken while deciding cases. She also thought that she was discriminated against because of her refusal to follow the decisions of the higher court as well as because in the case of Judge G.V. the Judicial Council decided not to initiate disciplinary proceedings. She relied on Article 10 of the Convention and on Article 14 taken in conjunction with Article 10. These provisions read as follows: Article 10   “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 14 The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A.     The parties’ submissions 26.     The applicant submitted that she had been punished because she had refused to comply with the unjustified orders of the Klaipėda District Court. In particular, she claimed that she had been following the Constitution and the European Union legislation and could not adopt a decision violating consumer rights ordered by the Klaipėda District Court. The applicant claimed that the disciplinary sanction had prevented her from successfully pursuing her career in the judiciary and undermined her authority in society. The applicant also thought that she had been discriminated against for her views and for being honest and honourable and even more so because disciplinary proceedings had not been started against another judge for his negligence (see paragraphs 14-16 above). 27.     The Government argued that Article 10 was not applicable in the current case. In their opinion, there was a difference between the exercise of judicial duties when issuing certain decisions and reporting on the judicial decisions or the discussion about them. The procedural document adopted by the court in accordance with the law and in the name of the State could not be considered as a private opinion or idea or dissemination of information. The ignorance of the formal requirements in the form of the judicial decision could not be equated to an opinion. 28.     The Government also stated that it was explicitly emphasised during the disciplinary proceedings against the applicant that disciplinary liability had been imposed because she had not performed her duties in an appropriate manner so as not to discredit the courts’ authority. She was not given a disciplinary sanction because of her views or statements expressed in the context of a public debate or in the media. 29.     The Government submitted that the applicant was familiar with the requirements for the judiciary. She was aware that incorrect application and interpretation of the law could form a basis for disciplinary liability if it was established that the higher courts were constantly amending and abolishing decisions adopted by a judge and there were obvious errors in the interpretation and application of the law as well as gross breaches of procedural laws (see paragraph 23 above). In the present case, the disciplinary investigation was initiated in respect of the applicant because she had constantly been applying a very formalistic approach and ignored the guidelines set by the higher court, which unreasonably protracted the proceedings. 30.     The Government stated that the disciplinary sanction imposed did not preclude the applicant from engagement in her professional activity and it was only valid for one year. 31.     The Government argued that the judicial activities of the applicant and Judge G.V. were of a different nature and that they were not in the same position. Also, the disciplinary sanction was imposed on the applicant for her systematic disobedience of the law and ignoring the case-law of the higher court which had caused negative consequences to the parties to the proceedings and undermined the authority of the court. B.     The Court’s assessment 1.     Complaint under Article 10 of the Convention 32.     The Court has recognised in its case-law the applicability of Article   10 to civil servants in general. However, in cases concerning disciplinary proceedings, removal or appointment of judges, the Court has had to ascertain first whether the measure complained of amounted to an interference with the exercise of the applicant’s freedom of expression – in the form of a “formality, condition, restriction or penalty” – or whether the impugned measure merely affected the exercise of the right to hold a public post in the administration of justice, a right not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation (see Baka v. Hungary [GC], no.   20261/12, §   140, 23   June 2016 and the references therein). 33.     In examining whether there was an interference with the applicant’s right to freedom of expression, the decisions of the Judges’ Court of Honour and the Supreme Court (see paragraphs 12 and 13 above) should be at the centre of the Court’s attention as they expressed the reasons for the proposed disciplinary sanction. According to those decisions, the applicant’s actions and behaviour showed that she had been negligent in performing her duties as a judge. In support of this conclusion reference was made to: the protraction of the court proceedings in simple cases on the issue of the court order, neglecting the court precedent, clearly demonstrating her disagreement with the higher court’s decisions to the parties to the proceedings and therefore discrediting the courts’ authority in society (see paragraphs 12, 13 and 17-20 above). 34.     The Court considers that, as in Harabin v.   Slovakia (no. 58688/11, §§ 151-52, 20 November 2012), it was the applicant’s professional behaviour in the context of the administration of justice which represented the essential aspect of the case (compare and contrast Wille v. Liechtenstein [GC], no. 28396/95, §§ 48-50, ECHR 1999 ‑ VII; Kudeshkina v. Russia , no.   29492/05, § 79, 26 February 2009; Poyraz v. Turkey , no. 15966/06, §   58, 7 December 2010; Bak a, cited above, §§ 148-49, where the Court found a link between the measures complained of and the exercise, by the applicants, of their right to freedom of expression). The proceedings complained of aimed at establishing whether or not the applicant had complied with her statutory obligations in performing her judicial functions, and whether or not her behaviour was to be qualified as a disciplinary offence. The disciplinary offence of which the applicant was accused and found guilty did not involve any statements or views expressed by her in the context of a public debate or in the media. 35.     In view of the above, the Court considers that the strict reprimand imposed on the applicant essentially related to her ability to properly exercise her functions as judge of the Klaipėda City District Court, and was notably motivated by her refusal to follow court precedent, by her actions that had protracted court proceedings and by her personal attitudes about the Klaipėda Regional Court, publicly expressed to the parties to the proceedings. 36 .     Considering the scope of the measure in issue in the context of the facts of the case and the relevant law, the Court concludes that there was no interference with the exercise of the applicant’s right to freedom of expression, as secured in Article 10 (see also, mutatis mutandis , Petropavlovskis v. Latvia , no. 44230/06, §§ 75-87, 13 January 2015, where the Court concluded that Articles 10 and 11 of the Convention were not applicable, as the applicant had not convincingly shown that the measure complained of – the refusal of his request for nationalisation – had any punitive character for the purpose of his exercise of freedom of expression and assembly). 37.     Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4. 2.     Complaint under Article 14 of the Convention, taken in conjunction with Article 10 38.     As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions   –   and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, amongst many other authorities, Zarb Adami v. Malta , no.   17209/02, §   42, ECHR 2006-VIII). 39.     The Court has held that the disciplinary sanction imposed on the applicant did not amount to an interference with her rights guaranteed by Article 10 of the Convention (see paragraph 36 above). As the facts complained of do not fall within the ambit of Article 10 of the Convention, Article 14 is not applicable in the present case. 40.     Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4.   For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 21 March 2019.   Andrea Tamietti   Paulo Pinto de Albuquerque   Deputy Registrar   President