Information Note on the Court’s case-law 241

June 2020

Cimperšek v. Slovenia - 58512/16

Judgment 30.6.2020 [Section II]

Article 10

Article 10-1

Freedom of expression

Refusal to award title of court expert to applicant, who had succeeded in examination, on basis of his blog and complaints criticising State authorities: violation

Facts - The applicant had applied for the title of court expert. He succeeded in the relevant examination and was invited to take the oath. However, his application was dismissed by the Minister of Justice on the basis that he was not a suitable candidate for the position. In making that decision, the Minister had relied upon the conte nt of the applicant’s blog and letters of complaint about delays in the Ministry’s work and the postponement of the oath ceremony.

Law – Article 10: The applicant had not complained about the domestic authorities’ refusal to appoint him as a court expert as such, but argued that the impugned decision had constituted a reprimand for the exercise of his freedom of expression as guaranteed by Article 10.

It followed from the Court’s case-law that while the Contracting States had not wished to commit themselve s to recognising, in the Convention or its Protocols, a right of access to public service, they were nonetheless bound not to impede that access on grounds protected by the Convention, by virtue of Article 1. In that connection, it was appropriate to draw parallels with the Court’s case-law on applying the concept of “private life” to employment-related scenarios under Article 8, including restrictions on access to employment in the public service. Under Article 8, complaints concerning the exercise of prof essional functions had been found to fall within the ambit of “private life” when factors relating to private life had been regarded as qualifying criteria for the function in question, and when the impugned measure had been based on reasons encroaching up on the individual’s freedom of choice in the sphere of private life.

The Court observed the following relevant elements: before the Minister had refused his application, the applicant had succeeded in the examination to become a court expert and had been i nvited to take the oath; and the Minister had based the impugned decision exclusively on the content of the applicant’s blog and the emails in which he had criticised the Ministry’s postponement of the oath ceremony. It followed that the essential elements of the decision related to the exercise of freedom of expression, even if that exercise had been qualified by the Minister as proof of the applicant not being a suitable candidate for the position of court expert. The Court could not accept the Government ’s argument that, in dismissing the application, the Minister had taken account of what the applicant had expressed merely in order to establish whether he had fulfilled the requirements for the title of court expert, since the disadvantage which the appli cant had suffered had been directly related to his exercise of core elements of that right. The dismissal also had a potentially chilling effect on the exercise of freedom of expression of those wishing to perform the function of court experts. Whether suc h a measure and the related chilling effect had in fact been justified was a question to be answered in relation to the merits of the case. Accordingly, the measure complained of essentially related to freedom of expression, and not access to public servic e. The refusal of the applicant’s application had constituted an interference with the exercise of his right to freedom of expression as guaranteed by Article 10 § 1.

The Minister had based his decision on the dismissal of the applicant’s application on h is emails and blog, both of which the Minister had considered to be offensive. The Minister had not relied on any particular blog post or email passage, nor had he in any other way specified the language used by the applicant in the blog and emails which h e had considered to be offensive. The absence of such reasoning in the Minister’s decision was particularly noteworthy, given that only days prior to that decision the Minister had considered that there was no obstacle to the applicant’s appointment as a c ourt expert.

The Administrative Court had also remained silent on the applicant’s right to freedom of expression, and had not addressed the applicant’s arguments made in that regard, relying exclusively on the reasoning of the Minister’s contested decision. In particular, it had in no way balanced the applicant’s right to freedom of expression under Article 10 against the public interest allegedly pursued by the impugned decision. Hav ing regard to the above and the considerations that had led it to find a violation of Article 6 § 1 the Court considered that the impugned interference with the applicant’s exercise of his right to freedom of expression had not been accompanied by an effec tive and adequate judicial review.

The behaviour of a candidate for the title of court expert could be such as to give rise to reasonable doubts as to whether the candidate would perform the work of an expert impartially and diligently. However, in the abs ence of a detailed statement of reasons in the Minister’s decision and the Administrative Court’s judgment as to why the applicant’s exercise of his right to free expression had been offensive and as such incompatible with the work of a court expert, the C ourt could not subscribe to the Government’s argument that dismissing the applicant’s application had been indispensable for securing morals and the reputation of court experts and protecting the authority and impartiality of the judiciary.

The foregoing c onsiderations, in particular the fact that neither the Minister nor the Administrative Court had undertaken any assessment of whether a fair balance had been struck between the competing interests at stake, and that the Court was thereby prevented from eff ectively exercising its scrutiny as to whether the domestic authorities had implemented the standards established in its case-law on the balancing of such interests, were sufficient for the Court to conclude that, in the circumstances of the applicant’s ca se, the interference with the applicant’s freedom of expression had not been “necessary in a democratic society”.

Conclusion : violation (unanimously).

The Court also found, unanimously,  a violation in respect of Article 6 § 1 on account of the lack of an oral hearing in the proceedings before the Administrative Court.

Article 41: EUR 15,600 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Baka v. Hungary [GC], 20261/12, 23 June 2016, Information Note 197 and Fernández Martínez v. Spain [GC], 56030/07, 12 June 2014, Information Note 175 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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