A Judgment Leaking from the European Court: The Case of Kovačević v Bosnia and Herzegovina

It was a hot Sunday when Istraga.ba, a Bosnian media outlet, published a sensational piece of news – the European Court of Human Rights (ECtHR) had upheld the complaint of Slaven Kovačević, the political advisor of Željko Komšić, a member of the Presidency of Bosnia and Herzegovina (BaH). The news was subsequently reposted in English. Why was this news item so odd? Because Istraga posted its article two days before the judgment was published through the ECtHR’ HUDOC database and because it is clear from reading that report that Istraga did have sight of the judgment, or perhaps a summary of the judgment and precisely knew the decision’s rationale. In short, the Court’s judgment was leaked, and the only place it could have been leaked from is the Court itself. This is, to my knowledge, the first time this has happened in the history of the Court. The subject of this post is not an analysis of the judgment on its merits (on which see the post by Kushtrim Istrefi), but the leak.

Mr. Kovačević lodged an application as a voter, alleging that the political and electoral system in BaH discriminated against him in that capacity, rather than as a candidate for office. The subject of the application, thus, was the active voting rights, particularly with respect to the collective head of state (the Presidency of BaH) and one of the houses of the BaH Parliament – House of Peoples. This case is to some extent different from previous rulings (starting with Sejdić-Finci) against BaH concerning electoral rights and passive voting rights (earlier analyses here, here, and here). In those cases, the applicants were discriminated against as they could not be elected to various organs of BaH due to their ethnic affiliation (or non-affiliation) and/or their place of residence.

Istraga’s article depicts some of the Kovačević judgment‘s paragraphs faithfully. This very strongly indicates that Istraga wasn’t just made aware of the basic outcome of the case, but also saw the reasoning, or a summary of the reasoning, of the judgment. For example, the article expressly refers to discrimination under Protocol 12 to the Convention, to the Court’s reference to the privileged position of the constituent peoples in BaH, and to the Court’s finding that the current system exacerbated ethnic divisions in BaH (compare, in particular, the text of the Istraga article with paras. 56, 59 and 61 of the judgment). But the article also indicates that the Court gives some explicit orders to BaH (e.g. one electoral unit for electing the Presidency) on how to reform the current system, while the published judgment conveys a somewhat different understanding. There were no such explicit court orders. The Court established a violation of discrimination prohibition due to the ethno-territorial principle. Therefore, the Istraga‘s article is not an entirely accurate description of the judgment, but the overall assessment is that the media outlet did, without any doubt, read the judgment before the publication.

On the same evening, Istraga aired a live show in which, among others, Mr. Kovačević (the applicant) was a guest. The host and the guest commented on the decision and its implications for the legal and political system of BaH. All of this would have been a usual political and legal discussion, had it not been for one thing – the judgment did not publicly exist at that moment.

In the initial minutes of the show, the host says that Istraga is aware of the content of the judgment. The applicant mentions that he was informed by the ECtHR via email that the judgment would be published on Tuesday and that the hard-copy original would be sent to him via post (starting at 1:50). At that point, the host interrupts Mr. Kovačević and states that Istraga has reliable information [about the judgment and its content], that the applicant has not yet received the judgment, but that there is information that the judgment has ruled in his favor. At that moment, Mr. Kovačević steps in and mentions that he was informed that he had won the case. He does not say who informed him (it was not the ECtHR for sure), but he admits that he was aware of his win. In conclusion, both the media and the applicant were aware of the case outcome, and the media was aware of the court’s rationale. It should be noted that Mr. Kovačević said that he did not know exactly what was stated in the judgment (see from 9:28).

Again, the problem here is in the fact that there was extensive discussion about a judgment that had not been published and that the content of the judgment had clearly leaked from the Court.

Deliberation, Delivery and Publication of Judgments

The procedures of deliberating, delivering and publishing of judgments are prescribed by the Rules of Court (Rules 22, 77 and 104A). Only a limited number of people may attend the deliberation and judgments can be either pronounced in a public hearing or communicated to the parties. The Registrar is in charge of delivering the judgments by virtue of Rule 77 (3). Since there was no public announcement of the Kovačević case, the judgment shall be delivered to the parties via the post. Rules do not allow for parties to be informed about the outcome before they receive the judgment or before it is published. Media and all other subjects can acquaint themselves with the judgment’s outcome and reasoning by accessing the HUDOC database or reading press releases containing summaries. Thereby, Istraga received the judgment in contravention of the Rules, and the applicant was informed about the outcome in a manner that contradicts these Rules.

To act or not to act?

Should any action due to the leak be taken at all? Numerous comments on the judgment have been made by various people in BaH, but there has been no discussion of the leak. The only exception, to my best knowledge, was a brief article by Večernji list (Croatian media) indicating that the BaH Agents wrote an objection to the court’s president. I am aware that the vast majority of those who have voiced their opinions about the judgment are not acquainted with the ECtHR deliberation and publication rules. Nonetheless, one need not be an ECHR expert to recognize that it is unusual for an outlet to possess the judgment ahead of everyone else and that it is wholly inappropriate to discuss an unpublished judgment that nobody else could see.

Two potential methods exist through which the media may have obtained the judgment: either the Court’s IT system was hacked, or someone within the Court disseminated the judgment to the media. I assume that the ECtHR’s IT system is protected with robust high-tech safeguards, so I turn to the second option.

The Court should initiate an inquiry into the leak for at least three reasons. Firstly, the incident undermines the Court’s reputation and integrity in general terms. If the leak of a judgment goes uninvestigated, it sends a signal that the Court tolerates the dissemination of judgments in violation of its own rules. As a result, the public may perceive the Court as a disorganized institution composed of individuals who disregard rules. The public anticipates that courts, including the ECtHR, will operate diligently and uphold legal and moral regulations.

Secondly, someone from within the ECtHR (an insider) breached the trust that exists among judges and other parties involved in the deliberation and delivery of judgments. The Rules dictate that only judges, registry members (presumably jurists in charge of respondent States), and interpreters may participate in deliberations and thereby, these persons, become privy to the outcome. All of them function within a framework of mutual trust in accordance with the Rules. By allowing the leak, someone betrayed this sacred mutual trust.

Such conclusion mirrors the sentiment of the US Supreme Court (SCOTUS) justices in a recent leak case. A Court’s draft opinion in the notable Dobbs case (concerning abortion rights) was leaked and circulated online. Of course, the Kovačević and Dobbs leaks are not identical; the Dobbs leak involved a draft opinion disseminated two months before official publication, at a time when the voting alignment of the Court’s justices remained uncertain, while Kovačević was leaked two days before the official publication when the judgment was no longer a draft. Still, the rules were breached in both cases. The SCOTUS justices unanimously characterized the incident as “one of the worst breaches of trust in its history”. A lack of trust can have adverse repercussions on all other ECtHR deliberations. How can judges and Registry lawyers communicate honestly with each other if there are concerns that their discussions or opinions can be leaked to the press?

Thirdly, the leak per se undermines the judicial process, both generally and specifically in the Kovačević case. The SCOTUS characterizes the Dobbs leak as “a grave assault on the judicial process”. If someone from the Chamber was indeed involved in disseminating the judgment, concerns about the Court’s impartiality are justifiable. Moreover, bearing in mind Mr. Kovačević’s claim that he was informed of his victory (presumably by somebody other than the Istraga journalists), then these concerns become even more serious.

Regarding impartiality, it is a well-established practice that courts must be impartial, as the concept of “impartiality denotes the absence of prejudice or bias” (Denisov, § 61). The Court asserts that “justice must not only be done, it must also be seen to be done” (De Cubber, § 26). Ultimately, “[w]hat is at stake is the confidence which the courts in a democratic society must inspire in the public” (Morice, § 78). Next, the ECtHR judges take an oath or solemn declaration – they must exercise their functions, inter alia, impartially, discretely and keep the secrecy of deliberation and confidential information (Rule 3 and Resolution on Judicial Ethics).

In conclusion, the ECtHR should promptly initiate an investigation and take all necessary and reasonable actions to ascertain how the judgment was leaked.

The steps to be taken

Following the Dobbs leakage, the SCOTUS promptly initiated the investigation which lasted for several months. A comprehensive examination involved interviewing employees and the court’s IT systems and devices, but the wrongdoer could not be identified. Yet, the investigation’s prime goal should be to display that a court is willing to admit a problem showing to everyone that leaking shall not be tolerated. The purpose is not necessarily to sanction responsible persons (e.g. a judge), but to preserve the integrity of the ECtHR. A sanction comes along the way.

Which measures can be taken, one could ask? The Dobbs investigation provides a clear directive. In addition to these measures, the investigation commission could ask Istraga about the source. They will likely protect their source, which is their right (Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources). Secondly, the investigation could approach the applicant to elucidate how he became aware of the case’s outcome. Similarly, the Court’s staff dealing with this judgment should be interviewed, and the Court’s IT systems checked for any relevant logs.

Possible consequences

Two significant potential consequences warrant attention. The first pertains to the potential imposition of sanctions on the responsible individual(s). The sole mentioned sanction for judges is dismissal from office (Art. 23 of the ECHR and Art. 7 of the Rules), requiring a two-thirds majority in a plenary session. If the leak was done by a Registry lawyer, my assumption is that the internal rules of the Registry and the Council of Europe apply to any disciplinary action, including dismissal.

The second consequence relates to the impact on the case merits. The judgment is not final, and the Government retains the right to ask for a referral of the case to the Grand Chamber (Rule 73), particularly since the Chamber’s president (Judge Kucsko-Stadlmayer) dissented on points of admissibility. The Government might raise concerns regarding the proper administration of justice, given that the judgment leaked. The mere occurrence of the leak does not inherently indicate bias of the Chamber, but this is precisely why an investigation is necessary – to establish all the pertinent facts. If proven that the applicant was connected with the leak, a potential outcome might be the ruling that he had abused the right to application. Consequently, the application could be declared inadmissible (Art. 34 of the ECHR).

Conclusion

The judgment in Kovačević case is truly important for Bosnia and Herzegovina. It requires changes at the core of the state’s apparatus – its electoral and political system. But what precedes the merits is the fact that the judgment leaked. It is clear that there was a breach of the ECtHR’s Rules. There is no doubt that this is an unprecedented serious incident, and the Court should investigate it. The investigation might reveal different things, including the court’s partiality, which could be essential for the final outcome of the case.

Photo: ‘European Court of Human Rights’