CASE OF RADOBULJAC v. CROATIA
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1963 and lives in Zagreb. 6. He is an advocate. In that capacity, he represented the plaintiff in civil proceedings instituted on 5 February 2009 before the Vukovar Municipal Court (Općinski sud u Vukovaru), in which his client sought payment of a certain amount of money from the defendant. 7. On 16 November 2009 the Municipal Court held a hearing, which the applicant attended. At the end of the hearing, the court scheduled the next one for 17 December 2009. 8. The applicant did not attend the hearing of 17 December 2009, at which the court made a decision to suspend the proceedings (mirovanje postupka) in accordance with section 216(1) of the Civil Procedure Act (see paragraph 18 below). 9. On 31 December 2009 the applicant, on behalf of the plaintiff, lodged an appeal against that decision. 10. He explained that he had been unable to attend the hearing owing to a vehicle malfunction, and that he had tried to contact the court and the defendant’s representative, with a view to informing them of the reason for his absence. He further stated that, after the hearing, he had spoken by telephone with the defendant’s representative, who had told him that, despite his (the representative’s) suggestion to proceed and hear the defendant’s testimony, the court had decided to adjourn the hearing and suspend the proceedings. The applicant argued that, if that was true, the court’s decision to suspend the proceedings had had no legal basis. He explained that suspending proceedings was an instrument for maintaining procedural discipline, the effect of which was to delay proceedings and thereby penalise the parties for their inaction. Yet, in his case, he and his client had been penalised by a delay even though it was through no fault of his own that he had failed to attend the hearing. He then stated: “With a view to highlighting the unacceptable conduct of the judge, the following circumstances have to be mentioned. The parties’ representatives and the defendant attended the hearing held on 16 November 2009. The plaintiff did not attend because no testimonies from the parties were scheduled, he is of low income, and he resides in Pula. The hearing in question was characterised by the fact that the party present at court did not give evidence and the judge attempted to adjourn the hearing without scheduling another one. The judge [eventually] adjourned the hearing, and only at the insistence of the plaintiff’s representative scheduled another one for 17 December 2009. Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance. Since the plaintiff’s representative has no reason to doubt the defendant’s representative’s statement that he had suggested hearing the defendant’s testimony at the hearing in question [the hearing of 17 December 2009], that statement indicates that the court could not have issued the contested decision. ... The contested decision should therefore be quashed.” 11. By a decision of 13 January 2010, Judge M.R. – who was the first-instance single judge in the above case – fined the applicant 1,500 Croatian kunas (HRK) for contempt of court. The relevant part of that decision reads: “... the advocate in the appeal ... first admitted not having attended the hearing scheduled for 17 December 2009 ... owing to a vehicle malfunction ... Instead of asking for the proceedings to be restored to the status quo ante [restitutio in integrum ob terminem elapsum, povrat u prijašnje stanje] as a result of objective reasons and force majeure, the advocate in question, for no reason whatsoever, states on the second page of the appeal, ‘Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance.’ [T]hat statement is certainly offensive to the court and the judge [concerned], and as such constitutes unacceptable communication between the court and the advocate representing one of the parties. By making that offensive statement, the advocate in question implies that the judge hearing the case proceeds pointlessly, and most likely proceeds pointlessly with all other cases, which represents a serious insult to both the court and the judge. For that insult, the court fined the advocate HRK 1,500. Such a fine will most likely [discourage] the advocate from insulting the court and judge hearing the case in future, in his appeals and [other] submissions, and encourage him to pay them due respect in all circumstances.” 12. The applicant appealed against that decision, arguing that his statement had not been offensive or demeaning. Rather, by making that statement, he had criticised the first-instance court’s inefficiency in conducting the proceedings. In particular, in his appeal, the applicant wrote, inter alia, the following: “The operative provisions [of the contested decision] indicate that the fine was imposed for offending the court in the appeal of 31 December 2009 by stating, ‘Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance’. I consider the contested decision to be without basis. The quoted statement does not represent an insult. [Rather,] it is an assessment of how usefully the proceedings in the present case were conducted. The statements quoted in the contested decision ... cannot in themselves, and especially having regard to the behaviour of the judge hearing the case, [be regarded as] disrespectful, which would justify the need to issue a decision on the fine. ... In addition to the plaintiff’s representative, the defendant and [her] representative attended the hearing scheduled for 16 November 2009. The record [of that hearing] states that [the plaintiff] reaffirmed his action and the submissions of 30 March 2009, and that the defendant maintained the arguments expressed in [her] response ... of 11 March 2009. Beside this, nothing else happened at that hearing. ... Apart from acknowledging the facts as stated above, the judge hearing the case did not carry out any action intended to bring the proceedings to an end, except for scheduling the next hearing. At that hearing, he did not even oblige the defendant to provide evidence for the claims expressed in [her] response. At that hearing, not even a decision to hear testimonies from the parties was adopted. Only at the request of the plaintiff’s representative did the judge decide to schedule the next hearing. ... In the circumstances, it is evident that the hearing scheduled for 17 December 2009 would have been identical ... to the previous hearing. The plaintiff’s representative considers such conduct to be at odds with the purpose of law. ... Given that the purpose of a hearing is concentrated deliberation, that purpose is frustrated when such concentrated deliberation is lacking. One should also bear in mind that such conduct increases the costs of proceedings ... [without] rational justification. ... No intention to offend was expressed in the submissions in question [that is, the appeal of 31 December 2009]. The quoted statement represents a view assessing how usefully the proceedings were being conducted. In the reasoning [of the contested decision], it is stated that the representative implies that the judge hearing the case ‘most likely proceeds pointlessly with all other cases’. That view is not supported by any argument and has no basis [in what was written in the appeal].” 13. By a decision of 7 July 2010 the Vukovar County Court (Županijski sud u Vukovaru) dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision, which was served on the applicant on 16 July 2010, reads: “When deciding to fine the representative for contempt of court ... the first-instance court correctly held – and gave valid reasons for its view – that such statements constituted unacceptable communication between the court and an advocate ..., the assessment of which is within the discretion of the court before which the proceedings are pending. Those statements ... go beyond the limits of an advocate’s role in the proceedings ... and may be legally characterised as abuse of process on account of inappropriate communication.” 14. On 17 August 2010 the applicant lodged a constitutional complaint against the decisions of the ordinary courts. In so doing, he complained that those decisions were in breach of his freedom of expression. He explicitly relied on Article 38 of the Croatian Constitution (see paragraph 16 below) and Article 10 of the Convention. 15. By a decision of 27 January 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible on the grounds that the contested decision was not open to constitutional review. That decision was served on the applicant on 11 February 2011.