“Država mora poštovati i zaštititi pravo i dužnost sudija da izraze svoje mišljenje kada je riječ o presuđivanju”
Bivši sudija Evropskog suda za ljudska prava Dragoljub Popović o slučaju izdvojeno mišljenje Branka Perića: “Država mora poštovati i zaštititi pravo i dužnost sudija da izraze svoje mišljenje kada je riječ o presuđivanju”
Sudija Branko Perić je, pošto je u veću koje je odlučivalo u predmetu Respiratori ostao u manjini, svoje argumentovano mišljenje učinio dostupnim javnosti. Pravno pitanje koje se ovim povodom postavlja glasi: Ima li sudija pravo da javnosti saopšti svoje izdvojeno, argumentovano mišljenje ako je pri većanju i glasanju u veću ostao u manjini?
Evropska konvencija za zaštitu ljudskih prava i osnovnih sloboda (Konvencija) predviđa u članu 45.2 da “svaki sudija ima pravo da iznese izdvojeno mišljenje”. Ovo se odnosi na sudije Evropskog suda za ljudska prava (Evropski sud). Postavlja se međutim, pitanje da li takvo isto pravo ima nacionalni sudija u državi koja je ratifikovala Konvenciju?
Pitanje se odnosi na slobodu izražavanja i dolazi u domen člana 10.2 Konvencije in fine, koji propisuje da se sloboda izražavanja može podvrgnuti formalnostima i ograničenjima, neophodnim u demokratskom društvu uz ostalo i “radi očuvanja autoriteta i nepristrasnosti sudstva”.
Zbog ovoga se naprijed postavljeno pitanje javlja u razvijenom obliku, tako da glasi: Da li sudija koji javnosti saopšti svoje izdvojeno mišljenje narušava autoritet i nepristrasnost sudstva?
Odgovor na ovako postavljeno pitanje mora se potražiti u praksi Evropskog suda, koji se više puta izjasnio o dužnosti sudije da se pridržava načela nepristrasnosti, s obzirom na njegovo/njeno pravo da učestvuje u javnoj debati o važnim društvenim pitanjima, uživajući slobodu izražavanja, koja je zagarantovana svakom.
U tom pogledu treba posebno obratiti pažnju na stav Međunarodne komisije pravnika, koja je istakla da “država mora poštovati i zaštititi pravo i dužnost sudija da izraze svoje mišljenje posebno kad je riječ o presuđivanju, kao i da poštuje i štiti sudijsku nezavisnost i vladavinu prava.” Komisija je ovakav stav saopštila pojavljujući se kao umješač u jednom predmetu pred Evropskim sudom.[1]
Evropski sud se u većem broju svojih presuda bavio pravom na slobodu izražavanja sudija. Klasični slučaj u tome nizu predstavlja presuda Vile protiv Lihtenštajna[2]. U toj presudi je Evropski sud izrekao da sudija ima pravo da se u javnosti izjasni čak i o pitanju koje u sebi sadrži i politički element.[3]
U najnovijem razvitku sudske prakse vodeći presedan u materiji slobode izražavanja sudija predstavlja presuda u slučaju Baka protiv Mađarske. U toj presudi je Evropski sud jasno formulisao svoje stanovište o slobodi sudijskog izražavanja, utvrdivši između ostalog povredu člana 10 Konvencije, učinjenu na štetu podnosioca predstavke[4]. Podnosilac predstavke je u tom predmetu bio predsjednik najvišeg suda u državi, smienjen sa svoga mjesta zato što je učestvovao u javnoj debati, izjašnjavajući se o važnim društvenim pitanjima.
Pred Evropskim sudom pojavili su se i slučajevi u kojima je postavljeno konkretno pitanje o tome da li se sudija smije izjasniti u javnosti o nekim elementima predmeta u kojima postupa, dakle onim koji još uvijek nisu presuđeni. U tim slučajevima predstavke podnijete Evropskom sudu zasnivale su se na članu 6.1 Konvencije. Podnosioci predstavki su imali pritužbe na pravičnost suđenja. Primere ove vrste pružaju slučajevi Bušemi protiv Italije i Lavenc protiv Letonije.[5] U obje presude Evropski sud je utvrdio povredu člana 6.1 Konvencije, zbog toga što su se postupajuće sudije u javnosti oglasile dok su predmeti koje je trebalo presuditi bili još uvijek u postupku.
Upravo ova posljednja pomenuta okolnost ukazuje na to da se mora napraviti razlika (distinguishing) između slučajeva Bušemi i Lavenc s jedne strane i slučaja sudije Branka Perića s druge. Sudija Perić se nije oglašavao u javnosti pre nego što je presuda u predmetu Respiratori bila donesena i ta je činjenica od suštinskog značaja. On je naknadno, po izricanju presude, saopštio svoje argumentovano, izdvojeno mišljenje, koje se ne slaže s izrekom presude u čijem je donošenju učestvovao. Pri tome, sudija Perić nije ničim povrijedio tajnost veijćanja. Osim toga, on nije napao sudije koje su imale drukčije mišljenje, niti se izjašnjavao o predmetu koji je još uvijek u postupku. Evropski sud upravo insistira na tim dvjema okolnostima kad procjenjuje slobodu izražavanja sudije.[6] Na osnovu toga se mora zaključiti da je sudija Perić svoju slobodu izražavanja koristio na način koji je u potpunosti primjeren dostojanstvu sudije.
Iz svega što je naprijed rečeno proizlazi da bi svaka akcija države uperena protiv sudije Perića, zasnovana na činjenici da je javnosti poslije donošenja presude učinio dostupnim sopstveni stav, bila neprimjerena demokratskom društvu i kao takva predstavljala bi povredu člana 10. Konvencije.[7] Ovo posebno ako se ima u vidu činjenica da član II 2 Ustava Bosne i Hercegovine nalaže neposrednu primjenu Konvencije i njenih protokola, kao akata koji imaju prioritet nad svim ostalim zakonima.
(Dr Dragoljub M. Popović, advokat i univerzitetski profesor, bivši sudija Evropskog suda za ljudska prava)
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