THIRD SECTION

Application no. 49022/09 Joaquin RUIZ-GIMENEZ AGUILAR against Spain lodged on 4 September 2009

STATEMENT OF FACTS

The applicant, Mr Joaquín Ruiz- Giménez Aguilar, is a Spanish national who was born in 1942 and lives in Madrid .

A. The circumstances of the case

On 22 July 2005, when introducing a reposición appeal against two decisions taken by Barcelona civil judge no. 1, the applicant, acting as legal counsel for a company, made the following written statements:

“In his decision of 19 July 2005, the senior judge unduly intends to justify his unusual, extemporary and partisan intervention in breach of the principles of impartiality and party disposition ... ”

“It draws strongly to our attention the suspicious performance of the senior judge in this case, which does not seem to be governed by the principle of impartiality, but by undisguised eagerness to favour, a fortiori , the interests of the plaintiff ... ”

“ ... the senior judge created doubts about his impartiality when he acted in clear distortion of the order set up by paragraph 2 of Article 734 of the Civil Procedure Code ... ”

“ ... the senior judge ... incurs once more in so unusual an interpretation of Article 420 of the Civil Procedure Code the perception that his never concealed will to favour the plaintiff appears even more distinctly than ever ... As a result, he is perceived not as an impartial decision taker but in fact as a champion of the plaintiff ... ”

“It is evident that both decisions are essentially directed ... to extend the length of proceedings already brought inaudita parte in the sole interest of the requesting party ... ”

On 29 July 2005 Barcelona civil judge no. 1 dismissed the reposición appeal and instituted disciplinary proceedings against the applicant, pursuant to Section 553(1) of the Judicature Act, for the character of the aforementioned statements, presumed in contempt.

On 9 September 2005 Barcelona civil judge no. 1 decided to withdraw from the disciplinary proceedings since, in his opinion, the right to a fair hearing and to an impartial tribunal required that these proceedings be allocated to a different judge from the judge against whom the statements presumed in contempt had been directed.

On 5 October 2005 the Barcelona Audiencia Provincial reversed the aforementioned decision, the disciplinary file being thus referred back to Barcelona civil judge no. 1 for a decision.

On 22 November 2005 Barcelona civil judge no. 1 commissioned his court clerk to examine the applicant ’ s statements and make a disciplinary decision proposal, the court clerk subsequently suggesting that the applicant should be fined 24,000 euros (EUR) for serious misconduct.

On 28 December 2005 Barcelona civil judge no. 1 requested the public prosecutor and the applicant to submit opinions as to the appropriateness of his putting a question to the Constitutional Court about the compatibility of section 555 of the Judicature Act with the constitutional rights to a fair hearing and to an impartial tribunal, in so far as that section conferred jurisdiction to sanction improper conduct by legal counsel towards a judge before whom proceedings are taking place, without making any exception to that principle, such as, for instance, when that conduct consists of statements which are in contempt made by legal counsel against a judge.

On 8 March 2006 Barcelona civil judge no. 1 decided not to put a question to the Constitutional Court, chiefly in the light of the Constitutional Court ’ s judgment no. 197/2004, whereby it was concluded that since the interest protected by section 448 et seq. – currently section 552 et seq. – of the Judicature Act was not the honour nor the dignity of the individual judge as a private person but the respect due to the judiciary as an institution, the fact that jurisdiction on disciplinary proceedings against legal counsel was conferred on the judge before whom the proceedings were taking place did not pose any constitutional problem as to the right to an impartial tribunal, even when the legal counsel ’ s misconduct consisted of statement allegedly in contempt directed against the judge. The judge further relied on the Constitutional Court ’ s judgment no. 197/2004 to conclude that the statements made by the applicant were not protected by the right to freedom of expression, given their futility as a defence of his client, their only discernible purpose being then to insult him on account of decisions taken which were against the interests of his client. He imposed a fine upon the applic ant of EUR 20,000 under Article 554(1)(b) of the Judicature Act, for serious misconduct.

On 15 March 2006, the applicant lodged an alzada appeal with the Governing Board of the Tribunal Superior de Justicia of Cataluña.

On 4 April 2008 the Governing Board of the Tribunal Superior de Justicia of Cataluña reversed part of the disciplinary decision delivered by Barcelona civil judge no. 1, on the ground that the proceedings had not been negatively affected by the applicant ’ s misconduct, and reduced the fine to EUR 4,000.

On 23 July 2006 the applicant submitted an amparo appeal (a constitutional challenge) to the Constitutional Court . He complained that the fact that the same judge against whom he had directed his statements enjoyed jurisdiction to deal with the consequent disciplinary proceedings was contrary to his rights to a fair hearing and to an impartial tribunal. He further complained of a violation of his right to freedom of expression, his statements having been made in his capacity as legal counsel in the exercise of his duties as counsel for the defence.

The appeal was declared inadmissible as devoid of any constitutional content, in a decision served on 11 March 2009. The Constitutional Court referred to its judgment no. 157/1996 and later judgments to conclude that the right to an impartial tribunal was not jeopardised by the fact that the judge before whom the alleged contempt had been committed had jurisdiction to try the alleged contemner , since the interest protected by Section 552 et seq. of the Judicature Act was not the honour nor the dignity of the individual judge as a private person but the respect due to the judiciary as an institution. It further argued that the applicant ’ s freedom of speech had not been jeopardised, in view of the circumstances of the case, since that right did not protect statements intended to cast doubt on the impartiality of the courts, irrespective of their actual usefulness or relevance in terms of defence, but only protected statements whose intention was to obtain from the courts the due protection of citizens in the exercise of their legitimate rights and interests.

B. Relevant domestic law

1. The Constitution

Article 20

“1. The following rights shall be recognised and protected:

(a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction; ... .

4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one ’ s likeness and to the protection of youth and children.”

Article 24

“1. Everyone has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended.

2. Likewise, all persons have the right of access to the ordinary courts as predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent.”

2. The Judicature Act (Law no. 6/1985)

Section 552

“Legal counsels and representatives taking part in proceedings and cases shall be reproved pursuant to this Title whenever they fail to fulfil their obligations under this Act and the Procedural Acts, provided that their behaviour does not amount to a crime”.

Section 553

“Legal counsels and representatives shall also be disciplinarily reproved for their conduct before judges and courts:

(1) when in their forensic conduct they lack orally, by writing or by act, the respect due to judges and courts, public prosecutors, lawyers, court clerks or any other person taking part or related with the proceedings. ... ”.

Section 554

“(1) The punishment that can be imposed on the persons to which the two previous sections refer shall be:

(a) an admonishment.

(b) a fine which maximum amount shall be that for which the criminal code provides in case of commission of a minor offence.

(2) the amount of the fine shall be established in view of the seriousness, background and circumstances of the acts committed and in any case it shall not be imposed until the person concerned had been heard.

Section 555

“(1) The punishment shall be imposed by the authority before which the proceedings are being held. ... ”.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he has not enjoyed a hearing by an impartial tribunal, since the judge dealing with the disciplinary proceedings was the same judge against whom he had directed his statements. The applicant further complains under Article 10 of the Convention that the domestic courts have violated his right to freedom of expression by unfairly imposing a fine on him on account of statements made in the defence of his client ’ s interests and therefore in the exercise of his responsibilities and duties as legal counsel.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention applicable to the proceedings in the present case? (see Engel and Others v. the Netherlands , 8 June 1976, Series A no. 22)

2. Was the judge who dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention? (see Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005 ‑ XIII)

3. Has there been a violation of the applicant ’ s right to freedom of expression contrary to Article 10 of the Convention? In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s profession relevant to his claim and the State ’ s margin of appreciation in this field?