CASE OF ČEFERIN v. SLOVENIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani
6. The applicant, a practising defence lawyer, represented ‒ initially before the Ljubljana District Court and subsequently before the appellate courts ‒ a defendant, I.P., who had been charged with three murders committed on 15 August 2002. The offence carried a thirty-year prison sentence. During the first-instance criminal proceedings, three certified sworn-in experts were appointed. A psychologist, J.R., and a psychiatrist, V.R., were asked to assess the accountability of the defendant and the probability that he had committed the criminal offences of which he had been accused. An expert in forensic medicine, J.B., was asked to prepare a report and testify, among other things, about the time of death of the victims, which was an important element in the accusation against the applicant’s client. In his written and oral submissions the applicant continuously protested his client’s innocence, pointing to what in his view was unreliable expert evidence, and requesting the exclusion of all evidence obtained by alleged violations of his client’s human rights. It would also appear that at some point in the proceedings the applicant asked to be given the results of a lie-detector test performed during the police investigation, but his request was refused. 7. At the final hearing held on 12 March 2004 V.R. replied to questions put by the applicant and the public prosecutor. Subsequently, the applicant requested that a new expert psychiatrist be appointed and that he should be assisted by a psychologist specialising in psychodiagnosis. Under the rules of the Criminal Procedure Act, a new expert witness should not be appointed unless there are contradictions or deficiencies in the available expert opinion or if reasonable doubt arises with regard to its correctness – the applicant therefore pointed out what he considered to be such deficiencies with respect to V.R. and J.R. In his oral submissions, the applicant argued that J.R. was known to be inclined towards psychodynamics which, in the applicant’s opinion, meant that “he was not familiar with top-level means of diagnosis, which were to be used in the process of psychosocial diagnosis”. He also stated that the psychodynamic psychotherapy used by the expert was not a scientific method and did not produce reliable data. The applicant further maintained in his speech that the results of the test used on his client were wholly contradictory and as such invalid. He gave examples from the expert opinion, such as its finding that the accused had little sense of reality but, at the same time, good general knowledge, and that while he was mentally rigid he was of above-average intelligence. The applicant continued by saying: “That this was just senseless extensive talking without any meaning, full of contradictions, is supported by the fact that the expert did not link his mental constructs with any concrete mental disorder, not least with the personality disorder in which he had proclaimed himself to be the expert.” 8. The applicant then went on to say that none of the tests could lead to a finding of the narcissist characteristics mentioned by expert J.R. and that, in any case, narcissism was not part of the valid method of diagnosis. He then stated: “The opinions of both the psychiatrist and psychologist indicate the sad truth that in their professional weakness, both experts resorted to methods that did not form part of their professional practice. The psychiatrist used psychological methods which he absolutely did not understand and applied them only mechanically; the psychologist applied outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts and thereby failed to obtain any useful results, therefore he resorted to the field of medicine ...” 9. The applicant concluded by saying that the proposed new expert opinions would have proven that his client could not have committed the crimes with which he had been charged. 10. The court rejected the applicant’s proposal to appoint new experts and concluded the evidence-taking procedure. 11. On 16 March 2004 the applicant’s client, I.P., was convicted of three counts of murder and sentenced to thirty years’ imprisonment. On 22 June 2004 the applicant lodged an appeal with the Ljubljana Higher Court. He supplemented it with further written submissions and on 16 December 2004 attended a session and a hearing before the court. The applicant argued, inter alia, that the date of the murder could not have been 15 August 2002 as established by expert, J.B. (see paragraph 6 above), which meant that his client could have not committed it; that the public prosecutor had not submitted the results of the lie-detector test which would have allegedly exculpated his client and the court had refused to obtain them from the Croatian authorities; and that his client had not been psychologically capable of committing the alleged crime. In his written and oral submissions before the Ljubljana Higher Court, the applicant strongly criticised the work of the experts, public prosecutor and the court and used a number of expressions which the Higher Court found amounted to contempt of court (see paragraph 19 below). 12. On 19 March 2004 the Ljubljana District Court issued a decision, fining the applicant 150,000 Slovenian tolars (SIT – approximately 625 euros (EUR)) for contempt of court for his statements given at the hearing of 12 March 2004 regarding the expert witnesses, namely for making the following remarks, the translation of which has not been disputed by the parties: “senseless talking” (neosmišljeno nakladanje), “mental constructs” (umotvori), “professional weakness” (strokovna šibkost) of the experts and saying that “the psychiatrist used psychological methods which he absolutely did not understand” (psihiater si je pomagal s psihološkimi metodami, ki jih absolutno ne razume) and that “the psychologist [applied] outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts” (psiholog z zastarelimi psihološkimi metodami iz kamene psihološke dobe ter neznanstvenim psihodinamskim konceptom) (see paragraphs 7 to 9 above). The court took the view that the applicant had expressed insulting value judgments with regard to the expert witnesses’ professional qualifications. Moreover, it considered that the professional competence of certified experts approved by the Ministry of Justice was not open to doubt. As regards the level of the fine imposed on the applicant, the court noted that it reflected the nature and seriousness of the offensive statements and the fact that he was a lawyer with many years’ experience of representation in court proceedings. 13. The applicant appealed on 8 July 2004. He argued that he had not intended to insult anyone, and had only wanted to draw attention to the unacceptable way by which the opinions that could result in a potential thirty-year prison sentence had been prepared. He maintained that the impugned allegations were substantiated by the criticism expressed in the appeal. He pointed out that he did not have the required knowledge to substantiate the criticism but had been warned about the serious errors committed by the two experts by those from the “psychiatric and psychological profession”. According to the applicant, the courts had to reflect on their practice of punishing lawyers, which was used by some judges to “cover up” their own unprofessional and incompetent work. He alleged that the punishment of defence counsels often had a chilling effect and thereby interfered with freedom of expression. 14. On 3 February 2005 the Ljubljana Higher Court dismissed the applicant’s appeal as unfounded, finding that his remarks “constituted insulting value judgments which were damaging to the honour and reputation of both experts, since they expressed contempt and disrespect for the human dignity of other people and were as such unworthy of the profession practised by a lawyer”. The court considered that it was obliged to protect its authority and the personal dignity of other participants in the criminal proceedings and pointed out that the applicant could have expressed his criticism in a number of legally acceptable ways. It also held that punishing a defence counsel did not constitute a serious interference with the constitutional right of freedom of expression, nor did it limit the constitutional right of defence. The court concluded that the lower court’s decision was correct and did not restrict the rights of the defence “as alleged by the appellant who obviously, lacking any self-criticism, still maintains that the allegations laid against the experts were justified”. 15. On 31 March 2005 the applicant lodged a constitutional appeal, in which he complained of a violation of Article 10 of the Convention and Article 39 of the Constitution, which guarantees freedom of expression. He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a democratic society. Relying on the case of Nikula v. Finland (no. 31611/96, ECHR 2002-II), he argued that the critical comments had been directed solely at the unprofessional and inadequate work of the experts and had not insulted the court in any way. His criticism of the two experts “was fully justified and based on scientific fact”. Furthermore, alternative less severe measures were available, such as a private prosecution for slander. 16. On 15 May 2008 the Constitutional Court dismissed the applicant’s constitutional complaint. The most relevant parts of its decision are as follows (as translated in the English version provided on the Constitutional Court’s website): “9. ... Certainly it has to be taken into account that the freedom of expression of a lawyer in his capacity as defence counsel in criminal proceedings serves the purpose of the defendant’s right to a defence ... The circumstance that a defence counsel in judicial proceedings exercises his right to freedom of expression because and only because he represents a client is of primary importance for the review of the admissibility of the interference with the right of a defence counsel determined in the first paragraph of Article 39 of the Constitution [freedom of expression], but this cannot entail that because of this circumstance the Constitutional Court would not review whether the courts’ decisions on punishing the defence counsel violated his right to freedom of expression. 10. In accordance with the first paragraph of Article 39 of the Constitution, freedom of ... expression [is] guaranteed. The ECHR protects the freedom of expression in the first paragraph of Article 10... ... 12. The duty of the courts in general and the court deciding on the merits of the case is to direct proceedings in such a manner so as to ensure the proper conduct of the parties and above all the fairness of the trial – rather than to examine in a subsequent trial the appropriateness of the party’s statements in the courtroom However, this does not entail that the defence counsel’s freedom of expression in criminal proceedings should be unlimited. Due to the fact that a defence counsel takes part in judicial proceedings and that his right to freedom of expression is intended for the protection of the rights of others, it is limited to a greater extent than the right to freedom of expression of any other individual in a public space may be limited. A defence counsel is namely limited by the fact that he participates in proceedings that are [formalised] and as such conducted in a rational manner, as well as by his professional ethics. A defence counsel may express strong and sharp criticism, however his argumentation in protecting the interests of his clients must remain within the range of reasonable argumentation, and there is no room for insults charged with emotion. It is understandable that in cases of defending a defendant charged with a grave criminal offence for which a severe penalty is prescribed, the tolerance threshold which may be allowed by the courts may be higher than in other cases, however, the defence counsel may not cross the outer boundaries of this tolerance. If he does cross them, it is proper that the court protects other values, i.e. confidence in the judiciary and the good reputation and authority of the judiciary, which ensures that the public respects the courts and has confidence that the courts are able to perform the role they have in a state governed by the rule of law. Protecting the authority of the judiciary includes the notion that the courts are the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence regarding a criminal charge, whereby it is important that the public at large have respect for and confidence in the courts’ capacity to fulfil that function. The above-mentioned is a constitutionally admissible reason to limit the defence counsel’s right to freedom of expression. The Constitutional Court has already [emphasised] in Decision No. U-I-145/03 that the institution of a punishment for insulting submissions is not the primary way to ensure the good reputation and authority of the judiciary, it is, however, an additional (and subordinate) tool which ensures the protection of the good reputation of the courts in situations in which confidence in the work of the judiciary is undermined by degrading criticism and [generalised], and from the viewpoint of the protection of rights in an individual case, unnecessary attacks on the work of the courts. 13. The complainant used the expressions mentioned in the first paragraph of the reasoning of this decision while defending a defendant who was charged with murder, for which the prescribed sentence is thirty years of imprisonment. The expressions entailed criticism of the expert witnesses who provided expert opinions in the criminal proceedings as permanently sworn-in experts. On the basis of [section] 248 of the Criminal Procedure Act, expert witnesses are engaged when the determination or assessment of a material fact call for the findings and opinion of a specialist possessing the necessary expertise for the task. The Constitutional Court in Decision No. U-I-132/95, dated 8 January 1998 (Official Gazette RS, No. 11/98 and OdlUS VII,1), [emphasised] that expert testimony is not only evidence, that is, a source for learning of relevant facts, but that an expert witness is an assistant to the court in exercising its function. The requirement that expert witnesses must be impartial follows from this, as otherwise parties to criminal proceedings would not be in an equal position. In view of the position that expert witnesses have as assistants to the courts in exercising their function, their authority must be protected in the same manner as the authority of the judiciary. This is a constitutionally admissible aim for which it was admissible to limit the complainant’s right to freedom of expression. Therefore, the Constitutional Court cannot accept the complainant’s view that a situation in which he directs insulting expressions towards the court is different than a situation in which such expressions are directed towards expert witness. 14. The courts’ assessment that the complainant expressed contemptuous criticism towards the expert witnesses is supported by reasons and is not unsound. The complainant did not merely express sharp criticism of the expert opinions, but his insulting remarks entailed personal disparagement of the expert witnesses as experts. The expressed contemptuous criticism is beyond the reasonable argumentation by which the defence counsel could justify his motion that new expert witnesses be called. Therefore, it cannot be accepted that such criticism could be justified for the purpose of exercising the defendant’s right to a defence as determined in Article 29 of the Constitution. Contemptuous criticism of an expert witness as a person who has been called to provide an expert opinion could even threaten a fair trial in criminal proceedings. The Constitutional Court has already [emphasised] in Decision No. U-I-145/03 that it is of exceptional importance that parties to proceedings [realise] that insulting sharp speech before the court does not prove that the defence counsel has provided quality representation. The quality defence provided by a defence counsel can also not be based on expressing contemptuous criticism which shows contempt for expert witnesses, instead, the defence must be directed towards a criticism of their opinions provided in the individual proceedings, and supported by arguments and reason. Therefore, it cannot be expected from the courts that they should, within the boundaries of tolerance, also allow insults for which the courts reasonably assessed that they showed contempt for the expert witnesses in their capacity as expert assistants to the court. Therefore, the interference with the complainant’s right to freedom of expression which the court made by punishing the defence counsel for the expressed insults with a fine, is not disproportional. 15. ...The Constitutional Court did not have to address the question whether by using the above-mentioned expressions the complainant had fulfilled all the statutorily determined elements of the criminal offence determined in Article 169 of the Penal Code, as this was not the subject of the challenged judicial decisions. ... In Decision No. 145/03, the Constitutional Court already [emphasised] that the possibility of independent criminal protection is not an appropriate substitute and cannot serve the purpose for which the legislature enacted the possibility that insulting submissions be punished. The Constitutional Court reiterates that the protection which the legislature defined in the first paragraph of [section] 78 of the Criminal Procedure Act is not intended to protect individual expert witnesses but to protect the good reputation and authority of the judiciary as a whole. The reasons why also the good reputation and authority of expert witnesses as impartial assistants to courts is a part of the protected value has been outlined in paragraph 13 of the reasoning of this decision. 16. ...Therefore, the constitutional complaint is not substantiated and the Constitutional Court had to dismiss it.” 17. The Constitutional Court reached the above decision by six votes to one. Judge J.Z. wrote a separate concurring opinion. Judge C.R., who voted against, wrote an extensive dissenting opinion. He argued that the applicant’s conduct had been judged too harshly by the majority, who had not approached the case correctly. In particular, the Constitutional Court had supported the finding of no violation by the fact that the impugned statements had been given during court proceedings, although ‒ in his view ‒ this should have weighed in favour of the applicant. Furthermore, proper attention had not been given in the reasoning to the nature of the proceedings, which had been criminal not civil, the target, which had been the experts and not the court, and the seriousness of the criminal offence the client had been risking – an offence carrying a potential thirty-year prison sentence. In this connection, the dissenting judge argued that the Constitutional Court should have taken account of the principles arising in Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005-XIII), especially those relating to the role of defence lawyers in criminal trials. He pointed out that a public prosecutor could not be fined for contempt of court and that less invasive measures were available to the court which were applicable to both defence lawyers and public prosecutors. In his opinion, such measures might constitute interruption of the speech in question, a formal warning, and the informing of the appropriate professional association or body. Lastly, he pointed to the danger that the decision in the present case might have a discouraging effect on other defence lawyers, particularly given that the penalising of expressions such as “professional weakness” had been considered justified by the Constitutional Court. 18. According to a letter by the Ljubljana District Court of 30 March 2017, prepared for the purposes of the present proceedings, the applicant paid the first fine (see paragraph 12 above) on 1 April 2005. 19. On 3 February 2005 the Ljubljana Higher Court issued a decision fining the applicant SIT 400,000 (approximately EUR 1,670) for contempt of court for his statements in the appeal proceedings regarding the expert witnesses, the State Prosecutor and the first-instance court (see paragraph 11 above). The court found that the following remarks of the applicant, the translation of which has not been disputed by the parties, amounted to contempt of court (taken from the decision): “As regards the State Prosecutor: ‘... it can be concluded that someone – a person who was aware of the exculpatory nature of this documentation for the defendant – hid this documentation ...’ ‘... it is permissible for a prosecutor to hide crucial evidence which could release the defendant from his liability ... As regards the expert psychologist ... [J.R.] ... : ‘... he had intentionally overlooked any information pointing to another possibility...’ ‘... on the other hand, I, as a layman, consider this to be a reflection of possible narcissism on the part of the expert himself ...’ As regards the forensic expert psychiatrist ... [V.R] ... : ‘... from the perspective of forensic ethics, by which the forensic expert is bound, such a way of working represents an intentional violation of those ethics, giving statements without any scientifically based value ...’ ‘... could be seen from the qualified (ab)use ((zlo)rabe) of the experiments, which the expert ...’ ‘... as he cannot have the slightest idea (ne more imeti najmanjšega pojma) as to how far normality extends and when pathology starts ...’ ‘... commenting on or describing handwriting analysis amounts to quackery (je na nivoju šarlatanstva) ...’ ‘... the psychiatrist either does not know all this or he is narcissistically ignoring it ...’ ‘... in this case we can talk of a typical abuse of a test, most likely a pirate version. In view of the fact that this abuse of the test took place in proceedings before a court – a judicial institution – this is almost grotesque ...’ ‘... the conclusion is almost dilettantish ...’ ‘... The expert did not show the slightest scientific doubt (niti trohe prisotnosti znanstvenega dvoma), but instead focused all his energy on defending his own infallibility, which is extremely inappropriate for any expert, and for one who is “accepting” the expert skills (“sprejemnika”izvedenske veščine) it is dangerous ...’ As regards the forensic expert ... [J.B.], the head of the forensic medicine institute: ‘... and when such negligence (malomarnost) by experts in preparing their opinions, resulting in a [thirty]-year prison sentence, justifiably upsets me ...’ ‘... that the negligence (šlamparija) of this expert is immense ...’ As regards the court: ‘... the judicial farce referred to is of course not over ...’” Of the above, the second of the statements referring to the public prosecutor and the statements referring to expert J.B. were expressed orally at the Ljubljana Higher Court’s session; the remainder were given in writing. 20. In providing its reasoning for the decision, the Ljubljana Higher Court found that the applicant had expressed insulting value judgments which had shown contempt for the participants in the proceedings and the court and had had nothing to do with freedom of expression. The court also noted that the applicant had previously been offensive within the same set of proceedings and that therefore, even from a subjective perspective, the offensive statements had to have been made intentionally. As regards the level of the fine imposed on the applicant, the court noted that it reflected the nature and seriousness of the offensive statements, the fact that he was a lawyer with many years’ experience of representation in court proceedings and the fact that he had previously made similar offensive statements during the first-instance proceedings. Lastly, the court decided to inform the Bar Association of the outcome of the proceedings. 21. The applicant appealed against this decision on 17 March 2005. He argued that his statements had not been offensive, given their context. As regards the criticism expressed against the public prosecutor and the court, he referred to the arguments of the defence concerning the undisclosed results of the lie-detector test. Among other things, he stated that “such a way of evidence taking [was] mystic and [had] no connection with the modern trial”. As regards expert J.R., the applicant stated that he had “directed all his intellectual abilities at defending his unprofessional opinion”. The applicant further referred to the objections made by the defence, which had allegedly been ignored by J.R., and stated that he, “as a layman, [could not] consider such conduct to be anything else than a reflection of possible narcissism on the part of the expert himself”. Regarding the criticism of expert V.R., the applicant referred to the examination of this expert during the trial, to the statements he had given and which, in the applicant’s view, showed that V.R. had been using methods which had not been within his competence, and had claimed to have been using a particular test “without ever seeing the original ... in his life”. The applicant also argued that V.R. had not shown “the slightest scientific doubt but had focused all his energy on defending his own infallibility”. As to expert J.B., the applicant stressed that his comments had related to J.B.’s assessment of the time of death – the air temperature at the time of the victims’ death had been an important, but disregarded, factor. In the applicant’s opinion, the assessment of the time of death had been done carelessly by J.B., who had kept changing his mind on the issue. The applicant pointed out that the time of death had been a crucial element in the trial and could have led to an acquittal if assessed properly. He concluded that “such expert opinions [were] a catastrophe for the Slovenian judiciary and very dangerous for its citizens”. 22. On 19 January 2006 the Supreme Court ‒ sitting as a panel of five judges, one of whom was B.Z. ‒ dismissed the applicant’s appeal. The Supreme Court noted that the courts were under obligation to protect their authority and the dignity of the participants in the proceedings. While section 78 of the Criminal Procedure Act provided for disciplinary sanctions, it could not be interpreted as allowing sanctioning of every inappropriate expression. Instead, the courts were called to take into account all the circumstances and decide whether, on balance, the insult had been such as to require a disciplinary sanction. The Supreme Court stressed that the courts had to show particular restraint and caution in deciding on a disciplinary sanction against a defence counsel, because in such cases not only was his or her right to freedom of expression at stake but also his or her role in defending the accused person in criminal proceedings. It noted that a defence counsel might, therefore, be critical of the State prosecutor and other participants in the proceedings, including the court, but even this rule did not apply in absolute terms. If a defence counsel conducted his defence in criminal proceedings by insulting or humiliating other participants, by accusing them of personal dishonesty or bias or of lacking the essential professional capacities, personal qualities or similar, or if he or she was also insulting to the court, his or her conduct was deemed unacceptable and therefore had to be subject to a sanction by a fine pursuant to section 78 of the Criminal Procedure Act. The Supreme Court concurred with the Higher Court that the case at hand involved insulting value judgments and expressions of contempt and disrespect for other participants in the proceedings and the court. The Supreme Court referred to the applicant’s statements and examined their semantic meanings and upheld the view that he “had expressed contempt for the court experts, not only regarding their professional abilities but also by attributing to them negative personal characteristics, thereby expressing insulting value judgments”. The Supreme Court also pointed out that the applicant had had the right to challenge the correctness of the court’s procedural decisions, but should have done so in a legally acceptable manner. The Supreme Court also found that the Higher Court had provided reasonable grounds for the amount of the fine imposed. 23. On 16 March 2006 the applicant lodged a constitutional appeal in which he complained of a violation of Article 10 of the Convention and Article 39 of the Constitution, which guarantees freedom of expression. He argued that his criticism had been essentially directed against the experts and the public prosecutor and not against the court. Although the participants in question might have preferred not to hear his opinion, he had had to express it for the benefit of the defendant. In the applicant’s view, the court had to take into account the importance of freedom of expression in the process of a criminal trial, which was one of the most important mechanisms of State repression. He also argued that he had expressed acceptable criticism which, though presented in a slightly illustrative manner, had not been insulting to the experts but instead had challenged the credibility of their opinions. He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a democratic society. Relying on Nikula (cited above), he argued that the critical comments had been directed solely at the unprofessional and inappropriate work of the experts and had not insulted the court in any way. 24. On 31 March 2008, at an administrative session, the Constitutional Court decided that Judge J.Z. (who was not present) would not sit it the cases concerning the Supreme Court’s decisions in which he had taken part, or those in which his wife, Judge B.Z., had taken part. 25. On 2 April 2008 an order was issued by the secretary general of the Constitutional Court for Judge J.Z.’s removal from the “consideration and decision-making” in the applicant’s case. 26. On 3 December 2008 a panel of three judges of the Constitutional Court issued a decision refusing to accept the applicant’s constitutional complaint for consideration on the merits as, in its view, it did not meet the criteria set out in paragraph 2 of section 55b of the Constitutional Court Act. Two judges, Judge E.P. and Judge J.P., voted in favour of the dismissal while Judge C.R. voted against it. It was also noted that as the panel had not been unanimous, the decision had been submitted to the remaining Constitutional Court judges pursuant to section 55c of the Constitutional Court Act. However, as the three votes in favour of examination had nevertheless not been obtained, the constitutional complaint was rejected. 27. On 5 December 2016 the Constitutional Court sent to the applicant a corrigendum of its decision of 3 December 2008, noting that Judge J.Z. had not been submitted a decision as he had withdrawn from the case. The explanation to the corrigendum noted that after being requested by the State Attorney to send information for the purposes of the proceedings before this Court, the Constitutional Court upon looking into the file had discovered a clerical error, namely the omission to indicate in the decision sent to the applicant that Judge J.Z. had not taken part in the proceedings in question. 28. According to a letter by the Ljubljana District Court of 30 March 2017, prepared for the purposes of the present proceedings, there was no record of the applicant having paid the second fine of SIT 400,000 (equal to approximately EUR 1,670 – see paragraph 19 above).