CONCURRING OPINION OF JUDGE KŪRIS

1. It is with not inconsiderable unease that I voted together with the majority in finding that the Slovenian courts have violated Mr Čeferin ’ s freedom of expression, the right enshrined in Article 10 of the Convention.

2. The present case is about the use of words and expressions pronounced in Slovenian – a language foreign to judges of this Court, including myself. In such cases, international judges should rely on what meaning and emotional poundage carried by the impugned expressions is attributed to them by domestic courts. Judge Wojtyczek and I elucidated this approach in our joint dissenting opinion in Ziembiński v. Poland (no. 2) (no. 1799/07, 5 July 2016). In particular, we argued that “[t] he insulting nature of ... Polish expressions was established by the domestic courts [which] made their assessment on the basis of their knowledge of [ inter alia ] the semantics of Polish vocabulary and phraseology”, that “[a]n international court should be extremely cautious in deciding to dismiss such findings by the domestic courts, whereby certain words or phrases are authoritatively held to be beyond the limits of acceptability in a particular society, on the ground that an international instrument (such as the Convention) allegedly allows for the use of certain language”, because “this is a question not only of legal, but also of linguistic and cultural expertise”, thus it would be a “false pride” for an international court to claim to “have ... these competences”. We claimed that “if the domestic courts have found that a certain expression in the language of that country contaminates public discourse to an extent that is intolerable, that ’ s it ”, and that then “[n]o further discussion is required”. I do not want to reproduce more from that opinion here.

3. The present case is very different from Ziembiński (no. 2) in a number of important respects. It does not relate to a public debate of general concern to which the applicant might have attempted to contribute. In addition, it involves neither a journalist nor a politician. Notwithstanding that, certain restrictions on a lawyer ’ s speech in a courtroom or outside it can also be effectively tolerated by the Convention. Whether these restrictions fall within the limits of acceptability, as drawn by the margin of appreciation afforded to a respective member State, or not depends, first and foremost, on message conveyed by the impugned speech – its content and form. And who else can better perceive and legally asses such message than the domestic courts, which themselves operate in the respective language?

4. As a matter of principle, I can easily follow the arguments regarding the meaning of the impugned words and expressions presented in the dissenting opinion of Judge Galič, who is the ad hoc national judge in this case. He asserts that the translation into English of the “original” Slovenian words, as provided to the Court by the applicant himself, is distorted or at least toned down. I only wonder: why did the respondent Government did not object to such translation? They accepted that translation at face value. This omission (if it indeed is an omission, as the ad hoc judge suggests) is of paramount importance for the outcome of the case. This is where the Ziembiński (no. 2) precedent (which, despite my and my distinguished Polish colleague ’ s dissent, represents the Court ’ s valid case-law!) comes into play: as in the present case there was no dispute between the parties as to the meaning of the impugned words and expressions, the Court feels entitled to judge on their use on the basis of the translation provided.

5. In this respect (and if Judge Galič is right as to the “true” meaning of the impugned words and expressions), I would dare to say that it was not the applicant who won his case. It was the Government who lost the case.

6. At all events, it is the Slovenian legal community and the Slovenian public at large who are the most (or even solely) competent to judge whether the Court was right or wrong in finding for the applicant in the present case. And if it appears to them – not in the formal legal sense, because it is highly unlikely that this judgment will be referred to the Grand Chamber and even more unlikely that the latter would come to an opposite finding, but in the sense dictated by the knowledge of the national language and by common sense – that the majority (of which I am part) erred, then, most regrettably, there will be yet another opportunity for whoever they can be to conclude that yet another judgment of the Court has “contribute[d] to the brutalisation of ... speech in Europe and to the decline in the standard of ... debate”. These words I borrow from Judge Wojtyczek ’ s and my dissenting opinion in Ziembiński (no. 2) , from which I almost pledged not to cite more.

7. But I find it quite pertinent to cite from the concurring opinion of the long-time (now already former) Slovenian Judge Zupančič at the Court in Delfi AS v. Estonia ([GC], no. 64569/09, 16 June 2015). That landmark case concerned a seemingly different topic, namely, it dealt with the responsibility for anonymous insults and hate speech on internet. Still, from a broader perspective; those “different” situations are yet other (out of many) manifestations of the more general problem of standards of public debate. Judge Zupančič stated, albeit almost incidentally: “I do not know why the national courts hesitate in adjudicating these kinds of cases and affording strict protection of personality rights and decent compensation to those who have been subject to these kinds of abusive verbal injuries, but I suspect that our own case-law has something to do with it.” I just wish that the Court had not erred and that the assessment underlying Judge Zupančič ’ s remark had not been applicable to the present judgment.

DISSENTING OPINION OF AD HOC JUDGE GALIČ

1 . As regards the general principles reiterated in the draft judgment, I strongly agree with them. With regret, however, I must also admit that I could not follow the reasoning that convinced the majority with regard to the application of the general principles in the case at issue.

I. The issue of translation: The applicant ’ s false statements of facts

2 . The applicant, who submitted the application in English, asserted as a statement of fact that he had been fined for referring to (the expert ’ s) “(senseless) talking”. This, however, is clearly a false translation. The statement, in Slovenian, reads “( neosmišljeno ) nakladanje ”. While “ neosmišljeno ” can be translated as senseless (meaningless, nonsense), “ nakladanje ” in Slovenian is far from value-neutral “ talking ” in standard English. It is a slang word with a clearly derogatory and contemptuous connotation. [1] The proper translation of this slang word would be, for example, “drivel” and in the given case this word is aggravated in combination with the word “ neosmišljeno ” – which in the cited decision of the Constitutional Court of the Republic of Slovenia is translated (by the Constitutional Court itself) as “meaningless drivel”. Thus, the applicant, who asserts before this Court that he was fined for the value-neutral and standard-language word “ talking ”, whereas in fact it was (at best) “ drivel ”, has mislead the Court by knowingly submitting a false statement of fact. No one in Slovenia with at least an average knowledge of English would, in good faith, translate “ nakladanje ” as “talking”. The same is true for another derogatory and abusive slang word used by the applicant in the domestic court proceedings – “ šlamparija ” (from German “ Schlamperei ”), which, however, he translated in his application to the European Court by the neutral and formal legal term “negligence” (in Slovenian: malomarnost ). Equally, another phrase from the first set of contempt proceedings, namely the “expert ’ s mental construct”, is again an inaccurate and misleading translation of the phrase used by the applicant: ( izvedenčevi) “ umotvori ”. This too is a slang expression, detached from its literal meaning (“ umotvor ” – product of mind; in its original meaning, perceived nowadays as already archaic in Slovenia, has not just a neutral, but a strong positive connotation). However, in the given context the expression in Slovenian slang is used – in complete contrast to its original positive connotation – when one wishes to state that something was particularly stupid. As such, it is not merely “caustic” but entails personal and contemptuous disparagement that flatly dismisses the author ’ s intellectual ability – e.g. if a scientific paper, a lawyer ’ s appeal, a judgment or an expert ’ s report were denounced as an “ umotvor ”. The Constitutional Court translated “ izvedenčevi umotvori ” as the expert ’ s piece of art (lacking any equivalent phrase in English, this translation comes closest to the cynical and, in the circumstances, contemptuous nature of the statement), not as the nearly value-neutral and standard language “mental construct”, which merely implies a lack of a proper factual basis for the findings.

3 . The exact meaning of the statements made by the applicant before the Slovenian courts is of importance for the outcome of this case – that is, ascertaining if they were merely gratuitous personal attacks deemed to have had the intention of insulting the experts. It is, in my view, regrettable that the present judgment simply cuts and pastes the translations submitted by the applicant himself, without examining whether the translation provided by him is accurate, or whether he tried to downplay the harshness and personally abusive character of his statements. Equally regrettably, the judgment – although it otherwise extensively cuts and pastes the decision of the Slovenian Constitutional Court (originally translated into English by the Constitutional Court itself) – does not accept the translation of the Slovenian Constitutional Court as regards the decisive disputed statements. Rather, it prefers to accept the applicant ’ s own translation. While it is appalling that the Government failed to object to the applicant ’ s false translations, I do not think this precludes the Court from checking the accuracy of the translations. After all, in standard cases, where applications are filed in the applicant ’ s native language, it is the Court that provides translations. Thus ( argumentum a maiori ad minus ), if an applicant (as was exceptionally done in this case for certain apparent reasons) himself translates parts of an impugned decision of the domestic courts, the accuracy of such translations should not be left entirely out of the ambit of the Court ’ s scrutiny.

II.

The judgment suggests that the impugned remarks had some basis in the facts and that the courts should have engaged in exploring the relationship between the statements and the facts of the case. Does this apply to the statements such as “judicial farce”? How then can the lawyer be offered an opportunity to demonstrate that something is a “catastrophe for the Slovenian judiciary” or that “a judicial farce” is in progress? Or to demonstrate the factual basis of the statement that there exists the “expert ’ s piece of art” ( umotvor ) or that his opinion is “meaningless drivel”, or that the expert is “narcissistic”, “dilettantish”, and his work “quackery” and “ Schlamperei ”? Or how can one assess the factual basis of the assertion that a scientific method is from the “Stone Age”? [2] Suggesting that one should be given a chance to “establish a factual basis” for such statements would merely aggravate the level of contemptuous behaviour, which would further undermine the authority of the courts – exactly the behaviour the courts need to prevent. The standards, reiterated in Morice v. France ([GC], no. 29369/10, § 155, ECHR 2015), concerning “linking the statement to the facts of the case”, should be read as meaning that one should be “afforded a realistic chance to prove that there was a sufficient factual basis” for allegations unless they are – as in the given case – nothing more than gratuitous personal attacks.

4 . At least the above statements concerning the national judiciary (“farce”, “catastrophe”) manifestly overstepped the limits that lawyers must observe “in order to protect the judiciary from gratuitous and unfounded attacks” (see Morice , cited above, § 155). These contemptuous and unsubstantiated attacks on the authority of the judiciary directly challenge the legitimacy of the legal system as a whole, and as such can never be said to have a “sufficiently close connection to the facts of the case”. Instead of engaging in such unsubstantiated criticism of the judiciary, a lawyer should actively help to maintain the legitimacy of the justice system and due respect for the judiciary (see, for example, Nikula v. Finland , n o. 31611/96, § 45, ECHR 2002 ‑ II), and should strive to be a model for clients in showing respect for the role of the courts in the legal system. This case can be contrasted with the recent judgment in Peruzzi v. Italy (39294/09, 30 June 2015), where a lawyer was prosecuted (and fined approximately 15,000 euros) for stating that a judge had “ wilfully made mistakes, by malicious intent, serious misconduct or negligence. ” With regard to both the content and the language and phrases used by the lawyer in the above case, these statements were far less extreme and contemptuous than those made by the applicant in the present case. Yet this Court found no violation of Article 10 of the Convention in Peruzzi .

5 . Furthermore, this case should be contrasted with Nikula , where the Court emphasised that the applicant ’ s criticism did not concern the prosecutor ’ s general professional or other qualities (see Nikula , cited above, § 51). On the contrary, the present case concerns exactly that: a contemptuous negation of the expert ’ s intellect, professional and other qualities, and general level of expertise. It could not actually be more obvious in the plain language used: “ professional weakness of the expert witnesses ”, as well as “ quackery ” (that is, faking the status of a medical doctor, pretending to have experience or knowledge, especially in the field of medicine!), combined with “meaningless drivel”, “piece of art”, “stone-age methods”, psychological methods that he clearly does not understand, and certain negative character qualities (narcissistic, dilettantish). Nevertheless, this crucial difference between the present case and Nikula , and the aspect that is strongly emphasised in Nikula as a necessary part of the test, was utterly ignored. I anticipate that one might argue that a comment such as “quackery” was directed against the work of the expert, not against the expert (“a quack”). But in reality, this Court – which itself stresses that it is not just the wording but the context that should be assessed – should easily recognise that the question of whether the statement is intended to degrade someone as a person or merely challenge the product of his or her work (a quack or quackery?) cannot depend on such technical distinction in the wording.

6 . Equally, it remained unnoticed that these statements do not merely have a “caustic tone” as did certain comments made in the above-cited Morice case . A “judicial farce” entails not only a caustic tone , nor does it merely have a “ negative connotation ”. Not much remains of the margin of appreciation if national courts are no longer trusted as being in a better position to at least understand their own language and to assess the exact meaning, degree of harshness and context of certain phrases.

7 . Even if a national court was in a position to agree with the lawyer that a certain “factual basis” is established that sheds doubts as to the correctness of the experts ’ reports, this could not and should not mean that there are no limits (a “blank cheque”) as to the language and expressions the lawyer can choose to argue this point and to convey a message in judicial proceedings. It has been universally accepted by bar associations themselves that courteous, respectful, and civil behaviour forms part of the lawyers ’ code of conduct and that such behaviour is not incompatible with the concept of zealous and firm representation. If the expert ’ s report is wrong, this can be stated – and the client ’ s interests duly protected – with adequate respect for the legal process and without contemptuous, vulgar, and degrading personal attacks and disparagements. As both the appellate court and the concurring opinion of Constitutional Court judge Zobec convincingly stated, there are thousands of ways in which the expert could have delivered the same message, with no less effectiveness as regards the protection of his client ’ s interests, but with a sufficient degree of respect for the integrity of the judicial process and without contemptuous attacks on the expert witness. As countless of cases of fine advocacy demonstrate on a daily basis, it is possible to “tear apart mercilessly”, “ruthlessly”, and “aggressively” the expert ’ s report with a firm and devastatingly sharp analysis and argument, but at the same time without outbursts of personal attacks against the expert as a person. Sharp, uncompromising, and even destructive criticism can be expressed – actually much more effectively – in a dignified manner. This makes this case significantly different from, for example, Nikula , Morice , or Kyprianou v. Cyprus ([GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII) , where it was not the degrading and contemptuous language or personal disparagement of other participants in the legal process that triggered the courts ’ reaction, but to a far greater extent the merit s of the statements themselves.

8 . What I find particularly troubling is that, through this judgment, the Court will inevitably send a message that will trigger a lowering of the standards of professional conduct already adopted by bar associations on the national and supranational levels, of their own motion. Specifically, the Rules of Professional Conduct require zealous representation of a client ’ s case, and also impose certain limitations on the manner of such representation. Lawyers, while being expected to fiercely represent their client ’ s interests, also have duties to the court, the adversarial parties, and third parties. It has been accepted by bar associations themselves that staunch advocacy and zealous, fierce, and vigorous pursuit of a client ’ s case does not legitimise and is no excuse for unprofessional, discourteous, or uncivil behaviour toward any person involved in the legal process. See, for example, Article 1 of the IBA International Principles on Conduct for the Legal Profession and Article 43 of the CCBE Code of Conduct for European Lawyers, which reads: “ A lawyer shall while maintaining due respect and courtesy towards the court defend the interests of the client honourably and fearlessly ... ”. The Commentary annexed to the Code explains as follows: “ This provision reflects the necessary balance between respect for the court and for the law on the one hand and the pursuit of the client ’ s best interest on the other .” There are hence additional elements that have to be placed on the balance when lawyers ’ freedom of speech in a courtroom is being assessed.

9 . The Court ’ s previously established standard that a lawyer ’ s “freedom of expression” in a courtroom is not unlimited (see Nikula, § 49) is perfectly in line with the above standards of professional conduct. Thus, the circumstances that (1) the impugned statements were made by a lawyer representing his client, (2) that they were made in the course of judicial proceedings, and (3) that they were directed against the judiciary and the court-appointed experts, as assistants to the judge, do not solely mitigate the lawyer ’ s responsibility, as the majority opinion seems to suggest. Equally, they aggravate it. Thus a proper balance must be found – as was duly examined by the national Constitutional Court and the Supreme Court.

10 . The courts should adjudicate cases through a dignified process, to which a certain degree of symbolism is attached and according to procedures that command public confidence and respect. [3] It is legitimate to expect that lawyers, through their own behaviour in the courtroom, will maintain public confidence in the administration of justice. It is precisely for these reasons that the independently adopted rules of conduct favour civil and courteous behaviour over contemptuous insults, the use of vulgar or slang language, swearwords and derogatory attacks on the persons involved in the legal process. As was observed: “ [T]he justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another. Stress and frustration drive down productivity and make the process more time-consuming and expensive. Many of the best people get driven away from the field. The profession and the system itself lose esteem in the public ’ s eyes .” [4] Lawyers must play their part in ensuring that their clients ’ cases can be decided according to the law. Driving proceedings away from reasonable discourse based on rational legal arguments, and towards the irrational emotional sphere, would be disastrous for the sound administration of justice – disastrous not merely from the viewpoint of expediency, but from the viewpoint of the goal that the system that is most suited to producing adequate results on the merits should be maintained. [5] Hence, when client ’ s interests can equally effectively be pursued in a manner that does not jeopardise the above goals, such an approach should be chosen.

11 . Advocacy in court hearings inevitably creates conflicts between these competing responsibilities. With regard to behaviour such as that demonstrated by the applicant in the present case, however, the situation is actually simpler. There is in fact no conflict between the expected level of professionalism, civility, dignity, and courtesy by a lawyer in the courtroom on the one hand, and the protection of the client ’ s best interests on the other. Adjudication is – and should remain – a rational process, which should give rise to adequate results on the merits. Throwing outbursts of frustration and emotion into the arena, fostering hostility between professionals (the court, lawyers, court-appointed experts), blurring the legally relevant facts and legal arguments, and replacing them with the harassment or intimidation of other participants in proceedings not only renders the sound administration of justice more difficult, but also does a disservice to the client ’ s interests. As stated above, it is perfectly possible to “mercilessly tear apart” an expert ’ s opinion through staunch and firm analysis and legal argumentation, without personally and contemptuously attacking the personality of experts. Replacing the former with the latter cannot serve the client ’ s interests well. Even adding the latter to the former does not serve the client ’ s interests, since it merely results in a distraction and drifting away from what is relevant. It also creates – as always where emotional outbursts and insults are offered instead of rational (counter-) arguments – a situation wherein the impression is formed that there are actually no rational counter-arguments at all. The presentation of such arguments in a professional and firm manner is more effective than abusive or disruptive behaviour. In adjudication based on rational legal discourse, personal attacks, harassment and contemptuous statements against (expert) witnesses do not benefit the client. Unless, of course, they produce the effect of intimidating (expert) witnesses (that is, tampering) in the courtroom. If the (expert) witness yields under such intimidation, this can certainly affect the outcome of the proceedings. But this is deemed to be a perversion of the course of justice.

12 . The above considerations are not intended to suggest that the courts should paternalistically decide what kind of defensive tactics legal counsel should apply. It goes without saying that– it should be added: within the limits of the law – this is solely for the lawyer to decide. What matters, however, is how the lawyer ’ s choice of statements, language, tactics, and overall behaviour in a courtroom affects the search for a proper balance when it comes to the inherent conflict between zealously protecting the client ’ s best interests, on the one hand, and the need to maintain the authority and integrity of the legal system, on the other. There is a need to strike a balance between remaining professional, courteous, and civil and the zealous exercise of the lawyer ’ s role. Logically, if the adoption of behaviour and tactics that seriously jeopardise the goal of preserving the authority and dignity of the legal system does not benefit the goal of effectively protecting clients ’ interests, the weight of the latter in the quest for a proper balance is negligible.

13 . It would be disastrous – not just for the client in the case at hand, but also for all future litigants, for the justice system as a whole, and also for the vast majority of the members of the Bar and for the Bar as a profession itself – if what prevails is the public ’ s opinion that the best lawyers – thus, those that they should engage should the need arise – are those who use the strongest and most insulting language (instead of “boring” legal and logical analysis) and who are contemptuous of the court and others involved in the proceedings, including the opposing party ’ s lawyer, witnesses, and experts. Living in Slovenia, I have sadly witnessed this trend. Professional, respectful, civil, and courteous advocacy is increasingly being perceived as a sign of weakness and frowned upon in public opinion and in an influential part of the media. Likewise, cheap showmanship, along with contemptuous, derogatory, and unsubstantiated attacks on the dignity, authority, and integrity of the judiciary and all those involved in the process of law is increasingly being perceived as a synonym for the zealous, firm, and vigorous exercise of the lawyer ’ s true role. The courts – national and supranational – should fulfil their role in trying to avert such trends. Thus, the aspect of behaviour modification – namely the message that is being delivered to all future litigants and the impression that is being created in society as to what good advocacy actually is – should also not be neglected in the above-mentioned quest for a proper balance.

[1] . As a slang word “ nakladanje ” is not found in the Slovar slovenskega knjižnega jezika [Eng: Dictionary of Slovenian Literary Language]; otherwise, nakladanje literally means “loading” (e.g. cargo on a truck). See, however, translations ( “ backslapping ” , “ jive ” , “ bullshit ” , “ talk shit ” , “ crap ” , “ window-talker ” ...), provided in the web search/dictionary which consolidates the already existing translations : https://glosbe.com/sl/en/nakladati .

[2] . The judgment attaches much weight to certain statements made by the applicant against the public prosecutor (see paragraphs 56-58 of the judgment). If these statements had been the only ones made by the applicant I would have easily joined the majority in finding a violation of Article 10. But it is clear that the statements directed against the public prosecutor constitute a merely negligible part of the overall assessment of the domestic courts (see paragraph 19 of the judgment: two out of the fourteen impugned statements in the second set of contempt proceedings were directed against the prosecutor, whereas there were no such statements in the first set of contempt proceedings at all).

[3] . ABA Compendium of Professional Responsibility Rules and Standards , 2017 Ed., p. 266.

[4] . The Honourable Sandra Day O’Connor, Civil Justice System Improvements, Speech to the American Bar Association (14 December 1993, quoted in Lawrence J Fox; Susan R Martyn; Andrew S Pollis, A Century of Legal Ethics : Trial Lawyers and the ABA Canons of Professional Ethics. 2009, p. 83 ).

[5] . Cf. the Concurring Opinion of Judge Zobec to the Decision of the Constitutional Court.