Communicated on 28 May 2014

FIRST SECTION

Application no. 51000/11 Silvano RADOBULJAC against Croatia lodged on 26 July 2011

STATEMENT OF FACTS

The applicant, Mr Silvano Radobuljac , is a Croatian national, who was born in 1963 and lives in Zagreb.

A. The circumstances of the case

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

The applicant, who is an advocate, represented the plaintiff in civil proceedings before the Vukovar Municipal Court ( Općinski sud u Vukovaru ) in which his client sought payment of a certain amount of money from the defendant.

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. In particular the applicant was found in contempt because in his appeal against the first-instance judgment in the case he had expressed his dissatisfaction with that judge ’ s decision to adjourn the hearing scheduled for 17 December 2009 in the following terms:

“Such conduct by the judge is absolutely unacceptable. In this way he seeks to create the impression that he proceeds in the matter [i.e. that the case is being dealt with] whereas, essentially, hearings are being held without meaningful content.”

The relevant part of that decision reads as follows:

“ ... this statement is certainly offensive for the court and the judge [concerned] and is as such unacceptable in the communication between the court and the advocate representing one of the parties.

In that way, by an offensive statement, the advocate in question implies that the judge assigned to the case proceeds pointlessly and most likely proceeds pointlessly in in all other cases, which represents a serious insult both for the court and the judge.”

The applicant appealed against that decision arguing that his statement had not been offensive or demeaning. Rather, by making those statements he had criticised the first-instance court ’ s inefficiency in the conduct of the proceedings.

On 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 reads as follows:

“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 were unacceptable in the communication between the court and an advocate ... , which assessment is in 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 qualified as abuse of process because of inappropriate communication.”

By a decision of 27 January 2011 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared the applicant ’ s subsequent constitutional complaint inadmissible on the ground that the contested decision did not concern the merits of the case and as such was not susceptible to constitutional review.

B. Relevant domestic law

1. The Constitutional Court Act

1 . The relevant provision of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 99/99 with subsequent amendments – “the Constitutional Court Act”), which has been in force since 15 March 2002, reads as follows:

Section 62(1)

“Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government or a legal entity invested with public authority on his or her rights or obligations, or as regards the suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional self-government, guaranteed by the Constitution (hereafter: ‘ constitutional rights ’ ) ...”

2. Civil Procedure Act

The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments, which has been in force since 1 July 1977, read as follows:

Section 10

“(1) ...

(2) Unless otherwise provided by this Act, the court shall fine a natural person between 500 and 10,000 [Croatian] kunas , or a legal entity between 2,500 and 50,000 [Croatian] kunas , if they commit a serious abuse of the rights they have in the proceedings.

(3) The fine referred to in paragraph (2) of this section may be imposed on a party and an intervener, as well as on their representative if he or she is responsible for the abuse of rights.

(4) The fine shall be imposed by the first-instance court. Outside the main hearing the fine shall be imposed by a single judge or the presiding judge.

...

(7) If the person fined ... does not pay the fine within the fixed time-limit ... the court shall ... inform the [Tax Administration] of the unpaid fine with a view to collecting the fine [through tax enforcement proceedings ] ...

...

(12) ... If within a year of service of ... a decision referred to in paragraph 2 of this section [the Tax Administration] does not succeed in collecting the fine, [it] shall inform ... the court [thereof], whereupon the fine shall be converted into a prison sentence in accordance with the rules of criminal law on converting fines into prison sentences, on which the court that imposed the fine shall issue a decision ... .”

Section 110

“(1) The first-instance court shall fine a natural person between 500 and 5,000 [Croatian] kunas , or a legal person between 2,000 and 20,000 [Croatian] kunas , if in his, her or its submission they have insulted the court, a party or other participant in the proceedings. The fine may also be imposed on a representative of a party or an intervener if he or she is responsible for insulting the court.

(2) Provisions of section 10 of this Act shall apply mutatis mutandis to cases referred to in paragraph (1) of this section.

(3) Provisions of preceding paragraphs of this section shall apply in all cases where the court imposes a fine pursuant to the provisions of this Act, unless otherwise expressly provided for particular cases.”

COMPLAINT

The applicant complains under Article 10 of the Convention that the decision of the Vukovar Municipal Court to fine him for contempt of court violated his freedom of expression .

QUESTIONS TO THE PARTIES

1. Did the decision of the Vukovar Municipal Court to fine the applicant for contempt of court constitute an interference with his freedom of expression within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2

2. The Government is also invited to provide the Court with examples of domestic decisions where a second-instance court, finding that there was no contempt, reversed the decision of a first-instance court to fine a party or a legal representative for contempt of court.