Communicated on 6 September 2016

FOURTH SECTION

Application no. 40975/08 Peter ÄŒEFERIN against Slovenia lodged on 20 August 2008

STATEMENT OF FACTS

1. The applicant, Mr Peter Čeferin, is a Slovenian national who was born in 1938 and lives in Grosuplje. He is represented before the Court by Odvetniška družba Čeferin, a law firm practising in Grosuplje.

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, a practising defence attorney, represented ‒ initially before the Ljubljana District Court and subsequently before the appeal courts ‒ a defendant, I.P., who had been charged with three counts of murder that carried a 30 ‑ year prison sentence. In his written and oral submission the applicant continuously protested his client ’ s innocence, pointing to what in his view was unreliable evidence, and requesting the exclusion of all evidence obtained by alleged violations of his client ’ s human rights. In so doing he produced facts and evidence which he considered exculpatory. During the first-instance criminal proceedings, three expert witnesses were appointed. Psychologist J.R. and psychiatrist V.R. were appointed to assess the accountability of the defendant and the probability that he had committed the criminal offences of which he had been accused. J.R. established, among other things, that the defendant had been symbiotically attached to his mother ‒ who was one of the murder victims ‒ and had suffered from a fear of abandonment. An expert in forensic medicine, J.B., was also appointed to prepare a report and testify in the proceedings concerning the time of death of the victims, among other things. 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 police investigation, but his request was refused by the public prosecutor.

4. At a hearing on 12 March 2004 the applicant requested that new expert witnesses be appointed in his client ’ s case. Under the rules of the Criminal Procedure Act a new expert witness is not appointed unless there are contradictions or deficiencies in an expert ’ s opinion or if reasonable doubt arises with regard to its correctness, and the applicant therefore pointed out what he considered to be such deficiencies. It would appear that in his oral submission the applicant argued that the expert J.R. had jumped to the conclusion that a person attached to another person in the way his client was to his mother would not hesitate to eliminate the object of his or her attachment if the latter was no longer in the position to comply with his or her wishes. In the applicant ’ s submission he suggested that J.R. had neglected to take into account the actual circumstances of the defendant ’ s family. As regards the report written by V.R., the applicant argued that in assessing his client he had used certain diagnostic methods which he was not qualified to use, that he had reached his conclusion regarding the level of his client ’ s aggression on the basis of a psychological test conducted by the expert psychologist rather than on the basis of his own diagnostic method, and that he had failed to provide answers to questions posed by the applicant during the proceedings. The applicant described one of the opinions as “senseless extensive talking without any meaning, full of contradictions” and as a “mental construct”. He also pointed out that “in their professional weakness” , both expert witnesses had resorted to methods that did not form part of their professional practice. In the applicant ’ s view, the expert V.R. had “used psychological methods which he absolutely did not understand” , while expert J.R. had “applied outdated psychological methods from the stone age of psychology and unscientific psychodynamics concepts and had thereby failed to obtain any useful results”. The judges hearing the case did not react to the applicant ’ s statements at the time.

5. On 19 March 2004 the Ljubljana District Court issued a decision, fining the applicant 150,000 Slovenian tolars (approximately 660 euros (EUR)) for contempt of court for his statements regarding the expert witnesses, namely for alleging “senseless talking”, “mental constructs”, “professional weakness of the experts”, “the psychiatrist used psychological methods which he absolutely did not understand” and “the psychologist applied outdated psychological methods from the stone age of psychology as well as unscientific psychodynamics”. 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 publicly-sworn experts certified by the Ministry of Justice was not open to doubt. As regards the level of fine imposed on the applicant, the court noted that it reflected the nature and gravity of the offensive statements and the fact that the applicant was a lawyer with many years ’ experience of representation in court proceedings.

6. The applicant appealed on 8 July 2004.

7. On 3 February 2005 the Ljubljana Higher Court dismissed the applicant ’ s appeal as unfounded. The court reiterated that the applicant ’ s statements constituted insulting value judgments which were damaging to the honour and reputation of both expert witnesses. It also held that the fine imposed could not be considered to have had a restrictive effect on the applicant ’ s freedom of expression. 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”.

8. 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 Slovenian 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. Referring to 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 did not insult the court in any way.

9. On 15 May 2008 the Constitutional Court dismissed the applicant ’ s constitutional complaint. In the view of the court, the role of expert witnesses as “neutral and objective auxiliaries of the court” was associated with that of the courts themselves. Therefore, the applicant ’ s statements had been examined with reference to the restrictions permitted for the purposes of upholding confidence in the judiciary as well as protecting the good reputation and authority of the judiciary. The Constitutional Court noted that the tolerance threshold allowed to a defence attorney could be higher when he or she is defending a person charged with a grave criminal offence but “should still not exceed the ultimate limit of this tolerance”. On the other hand, the Constitutional Court considered that, due to the fact that a defence attorney had taken part in judicial proceedings where his right to freedom of expression was intended for the protection of the rights of others during a formalised and rational process, this right was limited to a greater extent than any other individual ’ s right to freedom of expression in a public space. The court concluded that, as the statements made by the applicant amounted to personal insults targeting the expert witnesses, the fine imposed on him for contempt of court had not excessively interfered with his right to freedom of expression.

10. The Constitutional Court reached the foregoing decision by six votes to one. The majority that voted in favour of the decision included the Judge J.T. (president of the Constitutional Court), and Judge J.Z. 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 taken a wrong approach to the case. In particular, the Constitutional Court supported the finding of no violation by the fact that the impugned statements had been given during court proceedings, although ‒ in the dissenting judge ’ s 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 was criminal not civil, the target, which was the experts and not the court, and the gravity of the criminal offence, which was an offence carrying a potential 30-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 attorneys in criminal trials. Judge C.R. 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 consititute interruption of the speech in question, a formal warning, and the informing of the appropriate professional association or body. Lastly, the dissenting judge pointed to the danger that the decision in the present case might have a discouraging effect on other defence lawyers, in particular given that the penalising of expressions such as “professional weakness” was considered justified by the Constitutional Court.

11. On 16 March 2004 the applicant ’ s client, I.P., was convicted of three counts of murder and sentenced to 30 years ’ imprisonment. On 22 June 2004 the applicant lodged an appeal with the Ljubljana Higher Court. He supplemented the appeal on 5 July 2004 and subsequently attended a session and a hearing before the Ljubljana Higher Court.

12. In his written and oral submissions before the Ljubljana Higher Court, the applicant criticised the work and the findings of the lower court and other participants in the proceedings.

13. On 3 February 2005 the Ljubljana Higher Court issued a decision fining the applicant 400,000 Slovenian tolars (approximately EUR 1,670) for contempt of court for his statements regarding the expert witnesses, the State Prosecutor and the first-instance court. The court found that the following statements made by the applicant amounted to contempt of court (citation from the decision):

“As regards the public 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 forensic expert ...[ 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 ...[ 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 of the experiments, which the expert.... ’

‘ ... as he cannot have a slightest idea as to how far normality extends and when pathology starts... ’

‘ commenting on or describing handwriting analysis amounts to quackery... ’

‘ ... 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, but instead directed all his forces to defending his own infallibility, which is extremely inappropriate for any expert, and for one who is accepting the expert majority it is dangerous... ’

As regards the forensic expert ...[ J.B.], the head of the forensic medicine institute:

‘ ...and when such negligence by experts in preparing their opinions, resulting in a 30-year prison sentence, justifiably upsets me... ’

‘ ... that the negligence of this expert is immense ... ’

As regards the court:

‘ ... the judicial farce referred to is of course not over... ’ ”

In providing reasoning for its decision, the court found that the applicant had expressed insulting value judgments which showed contempt for the participants in the proceedings and the court and 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, such offensive statements must have been made intentionally. As regards the level of fine imposed on the applicant, the court noted that it reflected the nature and gravity of the offensive statements, the fact that the applicant 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 ’ s decision that the Bar Association should be informed of the outcome of the proceedings is noted.

14. The applicant appealed against this decision on 17 March 2005. He argued that his statements had not been offensive given the context in which they had been given. As regards the criticism expressed against the public prosecutor and the court, the applicant referred to the arguments of the defence concerning the lie-detector test. He pointed out that the defendant had been notified by the Croatian Interior Ministry that the result had been sent to the Slovenian prosecution service, yet the Slovenian prosecution and judicial authorities had refused to give the defendant access to it even though, in the applicant ’ s view, the results were in his client ’ s favour. As he had still not received the results, he had referred to situation as an ongoing judicial farce. As regards the expert J.R., the applicant referred to the objections made by the defence and which had allegedly been ignored by J.R. Regarding the criticism of V.R., the applicant referred to the examination of this expert during the trial, to the statements he had given which, in the applicant ’ s view, showed that V.R. had been using methods (Binet test, psychological test, handwriting analysis etc.), which had not lain within his competence, and to V.S ’ s attitude towards the doubts expressed by the defence. As to J.B., the applicant stressed that his comments related to the expert ’ s assessment of the time of death, for which procedure the air temperature had been important a factor but which had been assessed carelessly by J.B., who kept changing his mind on the issue. He pointed out that the time of death was a crucial element in the trial and could lead to an acquittal if assessed properly.

15. 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, concurring with the lower court that the applicant ’ s statements were insulting to the expert witnesses in particular. The court found that the applicant could have expressed his criticism of the conduct of the proceedings, including the refusal to disclose the results of the lie-detector test, in a legally acceptable manner. As regards the criticism of the experts, it was not only offensive as regards the experts ’ professional abilities, but was also insulting in that it attributed negative personal characteristics to the experts.

16. 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 Slovenian 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 should have taken into account the importance of freedom of expression in the process of a criminal trial, which is 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, was not insulting to the experts but instead 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. Referring to Nikula v. Finland , cited above, he argued that the critical comments had been directed solely at the unprofessional and inappropriate work of the experts and did not insult the court in any way. The applicant also submitted that he should never have been found liable for his statements, because he had been clearly pursuing the aim of defending his client and not humiliating the experts.

17. 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 Article 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. again voted against it.

B. Relevant domestic law

18. The Criminal Procedure Act lays down the following rule in relation to penalties for contempt of court:

Article 78

“(1) The court shall impose a fine on the defence counsel, the attorney, legal representative, injured party, private prosecutor or injured party as prosecutor if in their submissions, or in spoken comments, they insult the court or any participant in the proceedings. The fine shall lie between a minimum of one fifth of the last officially announced average net monthly salary in the Republic of Slovenia per employee and a maximum of three times that salary. The ruling on the fine shall be given by the investigating judge or the panel before which the abusive statement was made; if the insult is contained in a submission, the ruling on the fine shall be given by the court with which the submission was filed. An appeal shall be permitted against this ruling. Any insult expressed by a public prosecutor or a person deputising for him shall be reported to the competent public prosecutor. The imposition of a fine on a lawyer or an articled clerk shall be reported to the Bar.

(2) The punishment referred to in the preceding paragraph shall have no effect on the prosecution or the imposition of criminal sanctions for a criminal offence committed by insult.”

19. Article 55b, paragraph 2, of the Constitutional Court Act provides as follows:

“(2) A constitutional complaint shall be accepted for consideration : - if there is a violation of human rights or fundamental freedoms which had serious consequences for the complainant;

or - if it concerns an important constitutional question which exceeds the importance of the particular case in question.”

20. Article 55c of the Constitutional Court Act provides, in so far as relevant, as follows:

“(1) The panel shall decide on the rejection or acceptance of the constitutional complaint unanimously by an order. ...

(3) If the panel is not unanimous with regard to whether or not the conditions referred to in the second paragraph of Article 55b are fulfilled, the constitutional complaint shall be accepted for consideration if any three Constitutional Court judges decide in favour of acceptance within 15 days. (4) If the panel does not decide otherwise, the statement of reasons justifying a decision ordering the rejection or non-acceptance of the constitutional complaint shall include only a reason referred to in the first or second paragraphs of the preceding article of this Act and the composition of the Constitutional Court.”

COMPLAINTS

21. The applicant complains under Article 10 of the Convention that the fines imposed on him in the two sets of contempt of court proceedings violated his right to freedom of expression. In particular, he complains that the provision of Article 78 of the Criminal Procedure Act was inconsistent with the principles underpinning Article 10 of the Convention because it did not apply to public prosecutors and that the fines imposed on him were not necessary in democratic society in the circumstances of the case.

22. Moreover, the applicant complains that the decisions of the Constitutional Court lacked the necessary appearance of impartiality due to family ties between the judges of that court and the judges of the Supreme Court. In this connection, the applicant complains that Judge B.Z., who sat on the Supreme Court panel deciding on his appeal in the second set of the contempt of court proceedings, was married to Judge J.Z. of the Constitutional Court. The applicant maintains that, although the latter did not sit on the panel that dismissed his second constitutional appeal, he subsequently received the panel ’ s decision for review, as did the remaining judges.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?

2. Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present case? Moreover, was the Constitutional Court which dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention, as regards the participation of Judge J.Z. in the second set of proceedings ?