FIFTH SECTION

DECISION

Application no. 27768/17 Kristbjörn GUNNARSSON against Iceland

The European Court of Human Rights (Fifth Section), sitting on 6 October 2020 as a Committee composed of:

Mārtiņš Mits, President, Latif Hüseynov, Mattias Guyomar, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 5 April 2017,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Kristbjörn Gunnarsson, is an Icelandic national who was born in 1974 and lives in Garðabær. His application was lodged on 5 April 2017. He was represented before the Court by Ms Árnný Sigurbjörg Guðjónsdóttir, a lawyer practising in Reykjavik.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant was the defendant in private criminal proceedings, in which he was accused of defaming the plaintiff on social media. The plaintiff demanded that certain of the comments posted by the applicant be declared null and void, and that he be sentenced to a penalty and ordered to pay her damages for personal injury. The comments about the plaintiff, who was a newly ordained priest in the Church of Iceland, concerned allegations that she had prevented her children’s father and his family from seeing the children and had thus violated decisions by the district magistrate setting out the father’s visiting rights. The father, who was a relative of the applicant, had been accused by the plaintiff of domestic violence.

4. In a judgment of 5 October 2016, the District Court of Reykjanes found for the applicant. It found that the plaintiff had indeed been ordered to pay a penalty fine for preventing the father from visiting his children. In view of this, and the fact that the plaintiff herself had taken part in a public discussion about the case, the applicant’s comments had not constituted defamation. The District Court furthermore decided that in the circumstances of the case it was appropriate that each party should bear its own legal costs, the amounts of which have not been submitted to the Court.

5. The applicant attempted to lodge an appeal with the Supreme Court to overturn the decision on legal costs, but he was refused leave to appeal on 24 March 2017. The Supreme Court’s decision noted that, although the case concerned important and sensitive issues, the outstanding dispute only concerned legal costs and that the Civil Procedure Act (see paragraph 6 below) gave judges a considerable margin of appreciation when awarding such costs. Considering that the applicant’s freedom of expression could not be said to have been adversely affected by the decision to have him bear his own legal costs, and that limitations on the possibility of appealing did not unlawfully restrict access to a court, the requirements for leave to appeal pursuant to section 152(4)(a) and (c) were not fulfilled (see paragraph 6 below).

B. Relevant domestic law

6. The relevant provisions of Law no. 91/1991 on civil procedure ( lög um meðferð einkamála – hereinafter “the Civil Procedure Act”) read, at the material time, as follows.

Chapter XX – Legal aid

Section 125

“1. In this chapter, the term ‘legal aid’ is used to refer to legal aid for both plaintiffs and defendants in civil cases.

2. The Minister shall form a committee of three lawyers, namely the Legal Aid Committee, for a period of four years at a time, which shall make recommendations on applications for legal aid ...

...

4. The Minister shall grant legal aid on application. It shall only be granted upon the recommendation of the Legal Aid Committee.”

Section 126

“1. Legal aid shall only be granted if the applicant’s cause gives sufficient reason to file or defend a case and either of the following conditions are fulfilled:

a. the applicant’s financial situation is such that the cost of defending his or her interests in a court case would foreseeably be beyond his or her means, in which case it would be appropriate that legal aid be made available out of public funds;

b. the outcome of the case would have considerable general significance or considerable significance for the applicant’s livelihood, social situation or other personal circumstances.

...”

Section 127

“1. In so far as no other arrangement is decided herein, legal aid obliges the State to pay the legal costs of a legal-aid beneficiary as a result of a court case. However, legal aid may be limited so that it only covers certain aspects of the legal costs or it may be subject to a maximum amount.

...”

Chapter XXI – Legal costs

Section 130

“1. Whichever party loses a case on all major aspects shall normally be made to pay the opposing party’s legal costs.

2. The plaintiff shall be made to pay the legal costs of the defendant if a case is dismissed or if it is dropped for a reason other than the defendant fulfilling the duty which the proceedings aim to enforce.

3. In the event of a party winning the case to some extent and losing it in part, or if a significant element of doubt exists in the case, the court may order a party to the proceedings to pay the other party’s legal costs, or have each of them bear their own costs in the proceedings. The same may apply if the party losing a case neither knew nor could have known about the circumstances that were determining factors until after a claim was filed.

4. In the event that several sets of proceedings are conducted simultaneously and this could have been avoided by filing all the claims in one set of proceedings, potentially with counterclaims, the legal costs of the winning party may be lowered in this respect: compare section 27(2).”

Chapter XXV – Appeals

Section 152

“1. If a set of proceedings concerns a financial claim, leave to appeal may be granted if the claim amounts to at least 300,000 Icelandic krónur. This amount shall be adjusted according to the Credit Terms Index at the beginning of each year, starting from 1 July 1992 ...

...

3. If a case concerns a non-financial claim, the Supreme Court shall decide whether the interests at stake correspond to the requisite amount for an appeal. Before deciding on this, the Supreme Court may request observations from the parties.

4. If the financial claim in a case does not reach the requisite amount for an appeal or the Supreme Court does not consider the interests at stake sufficient to correspond to the requisite amount for an appeal pursuant to paragraph 3, it may still grant leave to appeal if one of the following conditions is met:

a. the outcome of the case has considerable relevance for the public,

b. the outcome of the case concerns substantial interests of the applicant,

c. it is not impossible that, according to the information available, the judgment may be amended to some extent.”

COMPLAINTS

7. The applicant complained under Articles 6 and 10 of the Convention that making him bear his own legal costs had been unjust and violated his freedom of expression. He furthermore complained under Article 6 of the Convention that not admitting his appeal to the Supreme Court had violated his right of access to court. Finally, he complained under Article 14 of the Convention, in conjunction with Article 10, that the decision in issue had discriminated against the economically disadvantaged in the enjoyment of the freedom of expression.

THE LAW

A. Alleged violation of the right to fair proceedings under Article 6 of the Convention

8. The relevant part of Article 6 § 1 provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

9. Although successful in defending the defamation proceedings brought against him, the applicant was not awarded legal costs from the plaintiff. This was clearly permissible under section 130 of the Civil Procedure Act (see paragraph 6 above), which provides that the losing party in civil proceedings “shall normally be made to pay the opposing party’s legal costs”, and provides several exceptions to that general rule. As noted by the Supreme Court in its decision of 24 March 2017, the provision leaves considerable discretion to judges when deciding on the award of legal costs in each case.

10. The Court observes that it is not a violation per se of the right to a fair trial to be made to bear one’s own legal costs despite being successful in legal proceedings. Nevertheless, financial considerations may be relevant to the right to a fair trial and access to court under Article 6. For example, the right of practical and effective access to a court may demand that court fees should not be excessive (see Kreuz v. Poland , no. 28249/95, §§ 60-67, ECHR 2001 ‑ VI), that legal aid should be granted under certain circumstances (see Steel and Morris v. the United Kingdom , no. 68416/01, § 61, ECHR 2005 ‑ II), and that the State should not be awarded excessive legal costs to be paid by a private opposing party such as to impair the essence of the right of access to a court (see Klauz v. Croatia , no. 28963/10, § 97, 18 July 2013).

11. However, the Court observes that none of the above considerations is applicable in the present case. From the documentation submitted, it appears that the applicant did not apply for legal aid under Chapter XX of the Civil Procedure Act (see paragraph 6 above). Furthermore, the applicant has submitted no documentation pertaining to the amount of his legal costs or his financial situation, even though this information is crucial for the examination of his complaint. Considering that the case was a relatively simple one, which was tried at one level of jurisdiction and where no witnesses appear to have been called, and in the absence of submissions to the contrary, it can be assumed that the legal costs were not insurmountable.

12. In the light of the above, the Court sees no indication that the fairness of the proceedings was adversely affected by the refusal to award legal costs, or that the refusal impaired the essence of the right of access to a court.

13. The Court therefore finds this complaint to be manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of the right of access to court under Article 6 of the Convention

14. The applicant was refused leave to appeal as the dispute regarding the legal costs neither reached the minimum pecuniary amount required for an appeal ( ratione valoris ), nor did it concern a particularly pressing personal or general interest sufficient for justifying leave to appeal (see paragraphs 5 and 6 above).

15. Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, but where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations (see Zubac v. Croatia [GC], no. 40160/12, §§ 80-81, 5 April 2018, and the cases cited therein). In this regard, the Court observes that the right of access to a court is not absolute, but may be subject to limitations, provided that those limitations are not so restrictive as to impair the very essence of the right of access. Such limitations must also pursue a legitimate aim, and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012). In setting such limitations, the Contracting States enjoy a certain margin of appreciation (ibid.).

16. The Court has furthermore recognised that the application of a statutory ratione valoris threshold for appeals to the Supreme Court is a legitimate and reasonable procedural requirement, having regard to the very essence of the Supreme Court’s role in dealing only with matters of the requisite significance (see Brualla Gómez de la Torre v. Spain , 19 December 1997, § 36, Reports of Judgments and Decisions 1997-VIII, and Zubac , cited above, § 83).

17. In the present case, leave to appeal was not dependent exclusively on a ratione valoris threshold, but was also possible if the dispute concerned a particularly pressing personal or general interest (see paragraphs 5 and 6 above). These limitations being clearly proportionate to the legitimate aim of ensuring that the Supreme Court dealt only with matters of a certain significance, it does not appear that they impaired the essence of the right of access to a court. The Court furthermore sees no indication that these requirements were applied with excessive formalism, nor that they prevented the applicant from appealing in proceedings of significant personal or general importance since, as noted by the Supreme Court, the only outstanding dispute concerned legal costs (compare and contrast mutatis mutandis Labergère v. France , no. 16846/02, §§ 20-23, 26 September 2006).

18. It follows that this complaint is inadmissible as manifestly ill ‑ founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violation of Article 10 of the Convention

19. Article 10 provides as follows:

“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.”

20. The applicant submitted that not to have awarded him legal costs from his opposing party in the proceedings had violated his freedom of expression, which he submitted was at stake as the proceedings had concerned claims of defamation.

21. The Court has discussed the potential “chilling effect” of an obligation to pay compensation for harm suffered or costs incurred in the context of defamation proceedings where the applicant, as a defendant, has lost (see, inter alia , Nikula v. Finland , no. 31611/96, § 54, ECHR 2002 ‑ II, and Juppala v. Finland , no. 18620/03, § 43, 2 December 2008). The Court has also held that an obligation to pay the legal costs of an opposing party in such proceedings can entail a violation of Article 10 when such costs are unreasonable or disproportionate to the aim pursued by the judgment (see, inter alia , MGN Limited v. the United Kingdom , no. 39401/04, § 219, 18 January 2011).

22. In the present case, however, the applicant was not made to pay either damages or legal costs to the opposing party, but merely to bear his own legal costs despite successfully defending his case. He has not submitted that he was denied legal aid, as discussed above (see paragraph 10 above), nor has he submitted that the legal costs were especially burdensome or that he is particularly financially disadvantaged. The applicant has furthermore not submitted that a financial disparity between the parties jeopardised the fairness of the proceedings, or that a particularly high burden of proving the truthfulness of his comments was placed on him, encumbering his vindication of his Convention right.

23. Considering all of the above, the Court finds that the decision on legal costs did not constitute an interference with the applicant’s freedom of expression. The Court therefore finds this complaint to be manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

D. Alleged violation of Article 14 of the Convention read in conjunction with Article 10

24. Article 14 reads:

“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.”

25. As to the complaint under Article 14 of the Convention, read in conjunction with Article 10, the applicant submitted that the decision on legal costs discriminated against the economically disadvantaged in the enjoyment of the freedom of expression.

26. An examination by the Court of the material submitted to it does not disclose any appearance of a violation of this provision. The Court consequently finds this complaint to be manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 November 2020.

Anne-Marie Dougin Mārtiņš Mits Acting Deputy Registrar President