| Polno besedilo: |
Up-309/05-25
15 May
2008
D E C I S I O N
At a session held on 15 May 2008 in proceedings to decide upon the
constitutional complaint of Dr. Peter Čeferin, Grosuplje, represented by
the law firm Čeferin, o. p., d. n. o., Grosuplje, the Constitutional Court
d e c i d e d a s f o l l o w s:
The
constitutional complaint against Ljubljana Higher Court Order No. I Kp
1010/2004, dated 3 February 2005, in conjunction with Ljubljana District
Court Order No. III K 49/2003, dated 19 March 2004, is dismissed.
1. In accordance with the first paragraph of
Article 78 of the Criminal Procedure Act (Official Gazette RS, No. 63/94
et sub.) by the challenged order the district court punished the
complainant in his capacity as defence counsel in criminal proceedings for
insulting expert witnesses by a fine of 150,000 SIT. At the main hearing
the complainant characterised the work of the expert witnesses who
provided expert opinions by using the following expressions: “meaningless
drivel”, “the expert witness's works of art”, “professional weakness of
the expert witnesses”, “the psychiatrist resorted to psychological methods
which he clearly does not understand”, “a psychologist with archaic
psychological methods from the stone age of psychology and unscientific
psychodynamic concepts”. The court of first instance assessed that this
amounted to contemptuous criticism of the expert witnesses and a negative
judgment of their professional competencies to perform this function. The
court cannot question the expertise of the expert witnesses, i.e. a
psychiatrist and psychologist who are registered in the register of
experts maintained by the Ministry of Justice. The court of first instance
is of the opinion that the complainant's attitude towards the experts'
work was dismissive and allegedly insulted their dignity.
2. By the
challenged order the Higher Court dismissed the complainant's appeal as
not substantiated. It assessed that the expressions which the defence
counsel used entailed contemptuous criticism and consequently attacked the
honour and good reputation of the expert witnesses, as they expressed
disdain and disrespect for the dignity of another person and were unworthy
of the legal profession which the lawyer practices. The Higher Court did
not, therefore, accept the complainant's arguments, alleging that he only
wanted to draw attention to the inappropriate and casual manner in which
the experts had provided their opinions, as the defence counsel “could
have done so in countless other acceptable ways”. In the opinion of the
Higher Court, the decision of the court of first instance did not have a
chilling effect nor did it gravely interfere with the constitutional right
to freedom of expression and the right to a defence, as in criminal
proceedings the courts must protect their own authority as well as the
personal dignity of other participants in proceedings on the basis of the
first paragraph of Article 78 of the Criminal Procedure Act.
3. The
complainant alleges that by the challenged orders the courts interfered
with his right to freedom of expression determined in Article 39 of the
Constitution, which is also protected by Article 10 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (Official Gazette
RS, No. 33/94, IT, No. 7/94 – hereinafter referred to as the ECHR). The
complainant allegedly only expressed his justified and well substantiated
opinion on the professional qualifications of the expert witnesses. The
opinion was allegedly given at the main hearing with the objective of
providing as effective a defence as possible, which parties to proceedings
must be ensured in accordance with Article 29 of the Constitution and
Article 6 of the ECHR. Due to the fact that the right of the defendant to
a defence is one of the most important rights provided by the Constitution
and the ECHR, expressing such opinion is allegedly especially protected.
The complainant argues that the courts interfered with his right to
freedom of expression without such interference being necessary in a
democratic society. He refers to the judgment in the case of Nikula v.
Finland,[1] in which the European Court of Human Rights allegedly adopted
the standpoint that Article 10 protects not only the substance of the
ideas and information expressed, but also the form in which they are
conveyed and that the right to freedom of expression is an essential
element of the right to a defence which is necessary for a fair trial. By
referring to the difference made by the European Court of Human Rights in
the above-mentioned judgement between a prosecutor and a judge in
proceedings, the complainant argues that the challenged court decisions
are unconstitutional also because he only criticized the inappropriate and
unprofessional work of the expert witnesses, he did not, however, insult
the court, which would have justified a graver interference with his right
to freedom of expression. The expert witnesses could have protected their
honour and good reputation by resorting to private prosecution against the
complainant in accordance with Article 169 of the Penal Code (Official
Gazette RS, No. 63/94 et sub.), which is allegedly a milder
interference with his right to freedom of expression. In the complainant's
view, this was not a task of the court deciding on the merits of the
case.
4. The complainant furthermore draws attention to the fact
that in the event of a criminal offence within the meaning of Article 169
of the Penal Code, the experts should prove all elements of the criminal
offence, whereby in accordance with the third paragraph of Article 169 of
the Penal Code, the unlawfulness of an act which has all the objective
elements of an insult is excluded if such concerns the protection of any
right or justified benefit in any proceedings or dispute. Due to the fact
that in these proceedings the defence counsel allegedly only ensured the
protection of the justified benefits of his client, who was charged with
murder, for which the prescribed sentence is thirty years of imprisonment,
the intention to show contempt (dolus coloratus) should be
demonstrated if the criminal offence of insult was considered. The
complainant in his capacity as defence counsel did not, however, have such
intention. He proposes that the Constitutional Court annul the challenged
orders and remand the case for new deciding.
5. The Constitutional
Court accepted the constitutional complaint for consideration on 23
October 2007.
B. — I.
6. The complainant maintains that
by punishing him for insulting the expert witnesses his right to freedom
of expression was violated during the time he was performing his duties as
defence counsel in the criminal proceedings.
7. In Decision No.
U-I-145/03, dated 23 June 2005 (Official Gazette RS, No. 69/05 and OdlUS
XIV, 62), the Constitutional Court reviewed the constitutionality of
Article 109 of the Civil Procedure Act (Official Gazette RS, No. 26/99
et sub.),[2] which regulates sanctions for insulting behaviour in
civil procedure. It decided that the challenged regulation, which is
intended to protect confidence in the judiciary, is not inconsistent with
the Constitution. It emphasized that exercising freedom of expression
(regarding oral statements and written submissions) as a party (or the
legal representative thereof) before the court serves the purpose of the
effective exercise of constitutional procedural guarantees. Therefore, the
Constitutional Court reviewed the allegation regarding the inconsistency
of the challenged regulation with the first paragraph of Article 39 of the
Constitution within the framework of the review of the consistency of the
statutory regulation with Article 22 of the Constitution. The
Constitutional Court adopted the standpoint that regarding statements made
by a defence counsel while representing a party before the court in an
individual case, this prohibition entails the manner of exercising[3] the
right determined in Article 22 of the Constitution and not a limitation
thereof. However, the Constitutional Court also stated that a court which
decides whether to apply the provision on the punishment for insulting
behaviour must carefully weigh whether critical and perhaps sharp
statements still fall within the allowed scope of the right to be heard in
proceedings, and if the court does not consider these aspects to a
sufficient extent, such could entail a limitation of the right to be
heard. “Consequently, it is necessary, on the one hand, to consider that
the circumstance that this concerns the making of statements in the
defence of rights before the court, speaks in favour of greater tolerance.
On the other hand, it is necessary to take into account the special
significance that confidence in the judiciary and respect for the
authority of courts have in order for the judicial branch of power to be
able to realize its tasks.”[4]
8. After the adopted decision on the
constitutionality of Article 109 of the Civil Procedure Act, there
followed Decision No. Up-150/03, dated 12 October 2005 (Official Gazette
RS, No. 101/05 and OdlUS XIV, 100), by which the Constitutional Court
reviewed the court order on the punishment of a defence counsel who
insulted the court in an appeal. It referred to its standpoints from
Decision No. U-I-145/03 and reviewed the alleged interference with the
complainant's right to freedom of expression determined in the first
paragraph of Article 39 of the Constitution within the framework of the
right determined in Article 22 of the Constitution. Upon establishing that
the court considered the starting points set out in the cited decision and
appropriately assessed whether the complainant's statements were necessary
from the viewpoint of the effective protection of rights before the court
and therefore that the right to a defence before the court was properly
exercised, the Constitutional Court decided that the decision on the
inadmissible nature of insulting statements did not excessively interfere
with the complainant's right within the meaning of the first paragraph of
Article 39 of the Constitution.
9. The present case, as was the
case in Decision No. Up-150/03, concerns the application of the statutory
regulation which allows that lawyers be punished for insulting
submissions.[5] Certainly it has to be taken into account that the freedom
of expression of a lawyer in his capacity as defence counsel in criminal
proceedings serves the purpose of the defendant's right to a defence. In
criminal proceedings, the right to be heard within the meaning of Article
22 of the Constitution is particularly guaranteed as a special human right
determined in Article 29 of the Constitution, which regulates legal
guarantees in criminal proceedings. The latter human rights are enjoyed by
parties to proceedings and not their defence counsels, thus only parties
could require that the violation of these human rights be established and
not their defence counsels in their name. In the present constitutional
complaint the complainant is a lawyer who does not assert that the courts'
decisions violated the right of his client, but that his human right,
which he exercised as a defence counsel, was violated. This right cannot
be anything other than the defence counsel's right to freedom of
expression within the meaning of the first paragraph of Article 39 of the
Constitution, which is exercised in a special manner within the framework
of judicial proceedings. In such an event, the particularity of this
position requires that performing the role of a defence counsel, when he
exercises the right of his client determined in Articles 22 and 29, cannot
result in the consequence that his right to freedom of expression can only
be violated in cases in which the violation of Articles 22 and 29 of the
Constitution can also be established beforehand. Therefore, the
Constitutional Court is changing its position adopted in Decision No.
Up-150/03, according to which the possible violation of the right to
freedom of expression of a defence counsel can be reviewed only within the
framework of respecting the rights determined in Articles 22 and 29 of the
Constitution. The circumstance that a defence counsel in judicial
proceedings exercises his right to freedom of expression because and only
because he represents a client is of primary importance for the review of
the admissibility of the interference with the right of a defence counsel
determined in the first paragraph of Article 39 of the Constitution, but
this cannot entail that because of this circumstance the Constitutional
Court would not review whether the courts' decisions on punishing the
defence counsel violated his right to freedom of expression.
10. In
accordance with the first paragraph of Article 39 of the Constitution,
freedom of expression of thought, freedom of speech and public appearance,
of the press and other forms of public communication and expression are
guaranteed. The ECHR protects the freedom of expression in the first
paragraph of Article 10, where it is defined as the freedom to hold
opinions and to receive and impart information and ideas without
interference by public authorities and regardless of frontiers. The second
paragraph of the same article determines that the exercise of these
freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity, or public safety,
for the prevention of disorder or crime, for the protection of health or
morals, for the protection of the good reputation or rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary. In view of
the fact that the constitutional protection of the right to freedom of
expression and the possibility of its limitations also includes protection
ensured by Article 10 of the ECHR, the Constitutional Court reviewed the
complainant's allegations from the viewpoint of the first paragraph of
Article 39 of the Constitution.
11. The right to a defence, and in
particular the aspect thereof determined in the first and second indents
of Article 29 of the Constitution, is essential for the defendant to have
an effective defence. Also criminal proceedings are judicial proceedings
and the nature of such proceedings requires that the manner or form of
carrying out procedural activities, including making statements before the
court, be regulated and subject to certain formal requirements.[6] In this
respect, it is particularly important for the defence of the defendant
that he has a qualified defence counsel who possesses the knowledge and
abilities needed to take part in judicial proceedings[7] in which the
defendant will be ensured a fair trial. The court, therefore, may not
interfere with the defendant's right to a defence by punishing the defence
counsel. Such interference would be inadmissible because of its
inconsistency with the legal guarantees within the meaning of Article 29
of the Constitution. When applying the first paragraph of Article 78 of
the Criminal Procedure Act, the court must not lose sight of
this.
12. The duty of the courts in general and the court deciding
on the merits of the case is to direct proceedings in such a manner so as
to ensure the proper conduct of the parties and above all the fairness of
the trial – rather than to examine in a subsequent trial the
appropriateness of the party's statements in the courtroom.[8] However,
this does not entail that the defence counsel's freedom of expression in
criminal proceedings should be unlimited.[9] Due to the fact that a
defence counsel takes part in judicial proceedings and that his right to
freedom of expression is intended for the protection of the rights of
others, it is limited to a greater extent than the right to freedom of
expression of any other individual in a public space may be limited. A
defence counsel is namely limited by the fact that he participates in
proceedings that are formalized and as such conducted in a rational
manner, as well as by his professional ethics.[10] A defence counsel may
express strong and sharp criticism, however his argumentation in
protecting the interests of his clients must remain within the range of
reasonable argumentation, and there is no room for insults charged with
emotion. It is understandable that in cases of defending a defendant
charged with a grave criminal offence for which a severe penalty is
prescribed, the tolerance threshold which may be allowed by the courts may
be higher than in other cases, however, the defence counsel may not
cross the outer boundaries of this tolerance. If he does cross them, it is
proper that the court protects other values,[11] i.e. confidence in the
judiciary and the good reputation and authority of the judiciary, which
ensures that the public respects the courts and has confidence that the
courts are able to perform the role they have in a state governed by the
rule of law. Protecting the authority of the judiciary includes the notion
that the courts are the proper forum for the settlement of legal disputes
and for the determination of a person's guilt or innocence regarding a
criminal charge, whereby it is important that the public at large have
respect for and confidence in the courts' capacity to fulfil that
function.[12] The above-mentioned is a constitutionally admissible reason
to limit the defence counsel’s right to freedom of expression. The
Constitutional Court has already emphasized in Decision No. U-I-145/03
that the institution of a punishment for insulting submissions is not the
primary way to ensure the good reputation and authority of the judiciary,
it is, however, an additional (and subordinate) tool which ensures the
protection of the good reputation of the courts in situations in which
confidence in the work of the judiciary is undermined by degrading
criticism and generalized, and from the viewpoint of the protection of
rights in an individual case, unnecessary attacks on the work of the
courts.
B. — II.
13. The complainant used the
expressions mentioned in the first paragraph of the reasoning of this
decision while defending a defendant who was charged with murder, for
which the prescribed sentence is thirty years of imprisonment. The
expressions entailed criticism of the expert witnesses who provided expert
opinions in the criminal proceedings as permanently sworn in experts. On
the basis of Article 248 of the Criminal Procedure Act, expert witnesses
are engaged when the determination or assessment of a material fact call
for the findings and opinion of a specialist possessing the necessary
expertise for the task. The Constitutional Court in Decision No.
U-I-132/95, dated 8 January 1998 (Official Gazette RS, No. 11/98 and OdlUS
VII,1), emphasized that expert testimony is not only evidence, that is, a
source for learning of relevant facts, but that an expert witness is an
assistant to the court in exercising its function. The requirement that
expert witnesses must be impartial follows from this, as otherwise parties
to criminal proceedings would not be in an equal position. In view of the
position that expert witnesses have as assistants to the courts in
exercising their function, their authority must be protected in the same
manner as the authority of the judiciary. This is a constitutionally
admissible aim for which it was admissible to limit the complainant's
right to freedom of expression. Therefore, the Constitutional Court cannot
accept the complainant's view that a situation in which he directs
insulting expressions towards the court is different than a situation in
which such expressions are directed towards expert witness.[13]
14.
The courts' assessment that the complainant expressed contemptuous
criticism towards the expert witnesses is supported by reasons and is not
unsound. The complainant did not merely express sharp criticism of the
expert opinions, but his insulting remarks entailed personal disparagement
of the expert witnesses as experts.[14] The expressed contemptuous
criticism is beyond the reasonable argumentation by which the defence
counsel could justify his motion that new expert witnesses be called.
Therefore, it cannot be accepted that such criticism could be justified
for the purpose of exercising the defendant's right to a defence as
determined in Article 29 of the Constitution. Contemptuous criticism of an
expert witness as a person who has been called to provide an expert
opinion could even threaten a fair trial in criminal proceedings.[15] The
Constitutional Court has already emphasized in Decision No. U-I-145/03
that it is of exceptional importance that parties to proceedings realize
that insulting sharp speech before the court does not prove that the
defence counsel has provided quality representation. The quality defence
provided by a defence counsel can also not be based on expressing
contemptuous criticism which shows contempt for expert witnesses, instead,
the defence must be directed towards a criticism of their opinions
provided in the individual proceedings, and supported by arguments and
reasons. Therefore, it cannot be expected from the courts that they
should, within the boundaries of tolerance, also allow insults for which
the courts reasonably assessed that they showed contempt for the expert
witnesses in their capacity as expert assistants to the court. Therefore,
the interference with the complainant's right to freedom of expression
which the court made by punishing the defence counsel for the expressed
insults with a fine, is not disproportional.
15. In the opinion of
the complainant, it was not the task of the court to protect the honour
and good reputation of the expert witnesses, as the expert witnesses could
resort to private prosecution as provided for in Article 169 of the Penal
Code. Thereby he also substantiates what the reasons are for which the
unlawfulness of his conduct should be excluded in the event that a private
claim is filed, i.e. that the conduct was allegedly committed in defending
the rights of his client and because he allegedly did not have an
intention to show contempt. The Constitutional Court did not have to
address the question whether by using the above-mentioned expressions the
complainant had fulfilled all the statutorily determined elements of the
criminal offence determined in Article 169 of the Penal Code, as this was
not the subject of the challenged judicial decisions and thus it cannot be
the subject of this constitutional complaint. Only the allegations that
the courts should not punish the complainant because private prosecution
for the above-mentioned criminal offence is a more lenient interference
with his right to freedom of expression than a punishment for insulting
statements could be relevant for this constitutional complaint. Such
allegations are not substantiated. In Decision No. 145/03, the
Constitutional Court already emphasized that the possibility of
independent criminal protection is not an appropriate substitute and
cannot serve the purpose for which the legislature enacted the possibility
that insulting submissions be punished. The Constitutional Court
reiterates that the protection which the legislature defined in the first
paragraph of Article 78 of the Criminal Procedure Act is not intended to
protect individual expert witnesses but to protect the good reputation and
authority of the judiciary as a whole. The reasons why also the good
reputation and authority of expert witnesses as impartial assistants to
courts is a part of the protected value has been outlined in paragraph 13
of the reasoning of this decision.
16. It follows from the
above-mentioned that with the challenged judicial decisions the courts did
not inadmissibly and excessively interfere with the complainant's right
determined in the first paragraph of Article 39 of the Constitution.
Therefore, the constitutional complaint is not substantiated and the
Constitutional Court had to dismiss it.
C.
17. The Constitutional Court reached this
decision on the basis of the first paragraph of Article 59 the
Constitutional Court Act (Official Gazette RS, No. 67/07 – official
consolidated text), composed of: Jože Tratnik, President, and Judges mag.
Marta Klampfer, mag. Marija Krisper-Kramberger, mag. Miroslav Mozetič,
Jasna Pogačar, Dr. Ciril Ribičič, and Jan Zobec. Judge Dr. Mitja Deisinger
was disqualified from deciding in the case. The decision was reached by
six votes against one. Judge Ribičič voted against and submitted a
dissenting opinion. Judge Zobec submitted a concurring opinion.
Jože
Tratnik
President
Notes:
[1] Judgment in the case
of Nikula v. Finland, dated 21 March 2002.
[2] At the time of the
review of Article 109 of the Civil Procedure Act by the Constitutional
Court it read as follows: “A civil court shall punish a person who in his
submission insults the court, a party to proceedings, or other participant
in proceedings in accordance with the third to seventh paragraphs of
Article 11 of this act.” In the above-cited decision the Constitutional
Court annulled the fifth to seventh paragraphs of Article 11 of the Civil
Procedure Act and partly the third paragraph of the cited article, whereas
it decided that Article 109 of the Civil Procedure Act is not inconsistent
with the Constitution.
[3] The second paragraph of Article 15 of the
Constitution.
[4] Paragraph 13 of the reasoning of the above-cited
decision.
[5] Article 78 of the Criminal Procedure Act reads as
follows: (1) The court shall impose a fine on the defence counsel, lawyer,
legal representative, injured party, private prosecutor, or injured party
as prosecutor if in their submissions or speech they insult the court or
any participant in the proceedings. The fine shall amount to a minimum of
one fifth of the last officially announced average net monthly salary in
the Republic of Slovenia, and to a maximum of three times the amount of
that salary. The ruling on the fine shall be rendered by the investigating
judge or the panel before which the insulting statement was made; if the
insult is contained in the submission, the ruling on the fine shall be
rendered by the court deciding on the submission. An appeal shall be
permitted against this ruling. An insult made by the public prosecutor or
the person deputising for him shall be reported to the competent public
prosecutor. The imposing of a fine on a lawyer or an articled clerk shall
be reported to the Bar Association.
(2) The punishment referred to in
the preceding paragraph shall have no effect on the prosecution and the
imposing of criminal sanctions for a criminal offence committed by
insult.
[6] See, Constitutional Court Decision No. U-I-145/03,
paragraph 6 of the reasoning.
[7] Also the European Court of Human
Rights in the judgment in the case of Nikula v. Finland explicitly
emphasized the importance of the lawyer's conduct in judicial proceedings:
“The Court reiterates that the special status of lawyers gives them a
central position in the administration of justice as intermediaries
between the public and the courts. Such a position explains the usual
restrictions on the conduct of members of the Bar. Moreover, the courts –
the guarantors of justice, whose role is fundamental in a State based on
the rule of law – must enjoy public confidence. Regard being had to the
key role of lawyers in this field, it is legitimate to expect them to
contribute to the proper administration of justice, and thus to maintain
public confidence therein.” (paragraph 45)
[8] See, the European
Court of Human Rights in the judgment in the case of Nikula v. Finland,
paragraph 53.
[9] See, the European Court of Human Rights in the
judgment in the case of Nikula v. Finland: “The Court would not exclude
the possibility that, in certain circumstances, an interference with
counsel's freedom of expression in the course of a trial could also raise
an issue under Article 6 of the Convention with regard to the right of an
accused client to receive a fair trial. “Equality of arms” and other
considerations of fairness therefore also militate in favour of a free and
even forceful exchange of argument between the parties. The Court
nevertheless rejects the applicant's argument that defence counsel's
freedom of expression should be unlimited.” (paragraph 49)
[10] The
Constitutional Court has already emphasized in paragraph 12 of the
reasoning of Decision No. U-I-145/03 that it undoubtedly follows from the
professional ethics of lawyers that their freedom of speech is not
unlimited and that lawyers as part of the administration of justice system
have a special role and responsibility in maintaining confidence and
respect in the judiciary.
[11] Compare, the European Court of
Human Rights in the judgment in the case of Nikula v. Finland: “While
lawyers too are certainly entitled to comment in public on the
administration of justice, their criticism must not overstep certain
bounds. In that connection, account must be taken of the need to strike
the right balance between the various interests involved, which include
the public's right to receive information about questions arising from
judicial decisions, the requirements of the proper administration of
justice and the dignity of the legal profession.” (paragraph 46)
[12]
See, the European Court of Human Rights in the judgment in the case
of Worm v. Austria, dated 29 August 1997, paragraph 40.
[13] The
European Court of Human Right decided even as regards the position of
civil servants that they must enjoy public confidence while performing
their duties and it may therefore prove necessary to protect them from
aggressive verbal attacks when on duty. In the judgment in the case of
Janowski v. Poland, dated 21 January 1999, the European Court of Human
Rights stated: “What is more, civil servants must enjoy public confidence
in conditions free of undue perturbation if they are to be successful in
performing their tasks and it may therefore prove necessary to protect
them from offensive and abusive verbal attacks when on duty.” (paragraph
33) The European Court of Human Rights reviewed the case of an insult of
municipal guards when on duty; the European Court of Human Rights cited
this decision also in the judgement in the case of Nikula v. Finland.
[14] In the case of Nikula v. Finland the circumstances were
different, and thus the defence counsel strictly limited her criticism,
albeit inappropriate, to the prosecutor's behaviour in the proceedings
against her client and not to his general professional or other qualities.
The European Court of Human Rights pointed out precisely this circumstance
as decisive: “Although some of the terms were inappropriate, her criticism
was strictly limited to T.'s performance as prosecutor in the case against
the applicant's client, as distinct from criticism focusing on T.'s
general professional or other qualities. In that procedural context T. had
to tolerate very considerable criticism by the applicant in her capacity
as defence counsel.” (paragraph 51)
[15] An expert witness who is
subjected to insults could respond to such insults in a manner such that
he would be favourable to the defence counsel's client in order to avoid
future insults, thus he would be impartial; on the other hand, the expert
witness could respond (which is even worse in criminal proceedings) in a
manner such that because of the insults he would be unfavourable to the
defence counsel's client, whereby he would not only be impartial but such
would also have a harmful effect on the defendant's right to a
defence.
The Dissenting Opinion of Judge Dr. Ciril Ribičič
1. This separate opinion does not offer an alternative
solution to the decision adopted by the Constitutional Court but attempts
to raise questions regarding the constitutionality of punishing a defence
counsel for insulting the court and regarding the approach which led to
the dismissal of the constitutional complaint of Dr. Peter Čeferin. The
past and present are too frequently marked by the punishment of those who
dare to doubt the truths behind which the prevailing majority stands. The
freedom of expression is the freedom which broadens the freedom of conduct
for those who dare to doubt. And which situation can be more appropriate
to substantiate the reasonableness and significance of the freedom of
expression than the position of a defence counsel in demanding criminal
proceedings? Is his right to raise doubts regarding an indictment, expert
opinions, and evidence of the prosecution not obvious? Should he be
reserved, cautious, polite, and kind, should he watch every word when he
senses from the actions of the court that it had convicted his client in
advance? What should he do in a situation when he is the only one who
still doubts and because of his doubts challenges expert opinions and
evidence taken and motions for new ones? Is it not in such a situation not
only the right but also the duty of a defence counsel to raise doubts,
even if by using strong language, in a coarse manner, not mincing words,
for sensitive ears also in a shocking, upsetting, even insulting manner?
In criminal proceedings (and this is even more obvious in systems in which
a jury decides whether a defendant is guilty) it is precisely the question
of doubt that is essential. The question is whether it is proven
without a shadow of a doubt, i.e. beyond any reasonable doubt, that a
defendant is guilty.[1] For a defence counsel in criminal proceedings we
can thus state: I doubt therefore I am. And on the contrary: when he no
longer doubts, he no longer performs his mission and he as a defence
counsel no longer exists. Thus anyone who judges how far those can go
whose right and duty it is to doubt and raise doubt and where they must
stop, finds himself on thin ice. This also applies to the case at issue
although at first sight the decision, supported by a very convincing
majority, appears to be built on solid grounds and substantiated by
convincing arguments, which are bound by a waterproof logic into an
earthquake-proof whole, which does not allow any doubt.
2. Although
this is not common for dissenting opinions, I wish to explain at the
outset the good points, distinctions even, of the adopted decision. The
decision in the case at issue (the Constitutional Court received the
constitutional complaint lodged by Dr. Peter Čeferin on 6 April 2005) had
been jelling for a long time and oscillating toward the final decision
with difficulty. It is very important that the review of the
constitutional complaint did not end with its rejection or its
non-acceptance, by concluding that a decision was not expected to resolve
an important (constitutional) legal issue, that the alleged violation did
not have significant (severe) consequences for the complainant, or that
there was obviously no violation of human rights or fundamental freedoms.
Each of these solutions would be, in my deep conviction, gravely
inconsistent with the established constitutional case-law of the same or
similar constitutional complaints in Slovenia, in numerous other European
countries, and at the European Court of Human Rights. It would not reach
minimum European standards. The adopted decision, to which I write this
separate opinion, can by no means be criticized for such. Quite the
contrary. It entails important progress in comparison to decisions adopted
in the period of “cleaning out cases” (those which did not deserve a
review on the merits) after the implementation of the amended
Constitutional Court Act. The decision must be given credit for being
consistent in form and in the content. It does not avoid substantive
issues opened by the constitutional complaint. The adopted standpoints are
supported by sound arguments and relevant case-law.
3. One merit
of the decision is also the changed position, explained in paragraph 9 of
the reasoning, which reads as follows: “Therefore, the Constitutional
Court is changing its position adopted in Decision No. Up-150/03,
according to which the possible violation of the right to freedom of
expression of a defence counsel can be reviewed only within the framework
of respecting the rights determined in Articles 22 and 29 of the
Constitution. The circumstance that a defence counsel in judicial
proceedings exercises his right to freedom of expression because and only
because he represents a client is of primary importance for the review of
the admissibility of the interference with the right of a defence counsel
determined in the first paragraph of Article 39 of the Constitution, but
this cannot entail that because of this circumstance the Constitutional
Court would not review whether the courts' decisions on punishing the
defence counsel violated his right to freedom of expression…” The changed
position is important primarily because the former position offered a
starting point which was too restrictive for a review of in which cases
the freedom of expression of lawyers determined in Article 39 of the
Constitution and Article 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter referred to as the ECHR) are
violated. In addition, it evidently deviated from the content and the
manner of reviewing this issue in the case-law of the European Court of
Human Rights.
4. It is not positive only that the Constitutional
Court changed its position but also that it did not hide this change, but
explicitly admitted such and provided relevant arguments. Thereby the
Constitutional Court respected the standards which it requires from
regular courts if they change their position on a matter.[2] I
believe that such does not weaken, but rather strengthens the credibility
and authority of the Constitutional Court, which admits its fallibility
and is able to correct its recent mistake. The Constitutional Court
did not limit itself to changing a principled position, but in the
reasoning of the decision (in a somewhat concealed manner) itself
performed a strict proportionality test. Unfortunately, the Constitutional
Court stopped at this point and did not say that the same position had
been defended by the minority already in case No. U-I-145/03; the
arguments were presented in the dissenting opinion written by Judge Dr.
Dragica Wedam-Lukić, joined by Judge Dr. Mirjam Škrk and myself.[3] The
separate opinion pointed out that the petitioners explicitly alleged that
Article 109 of the Civil Procedure Act was inconsistent with the right to
freedom of expression, for which the Constitutional Court had to review,
applying a strict proportionality test, whether it was a case of an
(in)admissible interference with this right. Therefore, it is not
acceptable that the Constitutional Court decided that the prohibition on
insulting statements did not at all interfere with the freedom of
expression, which should have been reviewed according to the strict
proportionality test, but that the matter only concerned the determination
of the manner of the implementation of the right determined in Article 22
of the Constitution in conformity with the second paragraph of Article 15
of the Constitution, although, on the other hand, it established that “the
matter concerns a statutory regulation in which the determination of the
manner of the exercise of a human right is approaching the line where it
could already entail its limitation.” The separate opinion points out that
the freedom of expression determined in Article 39 of the Constitution is
a fundamental constitutional freedom which has a special position in the
established case-law of the Constitutional Court. In the separate
opinion, this is supported by the decisions of the Supreme Court of the
United States of America, the European Court of Human Rights, and the
German Federal Constitutional Court. Furthermore, the separate
opinion draws attention to the fact that evaluating contemptuous
statements within the framework of a violation of Article 22 of the
Constitution is not appropriate as it failed to establish that the right
to be heard within the meaning of Article 22 is the right of a party (the
person whose rights and duties are decided upon), whereas punishing
someone for contempt of court applies also to other participants in
proceedings. When reviewing whether punishing individuals for
contemptuous statements entails a limitation of the freedom of expression,
it must foremost be taken into consideration whether “the threat of
punishment deters them from efficiently defending their positions.” It is
evident at first sight that these concerns from the separate opinion are
particularly interesting when the matter concerns the freedom of
expression of a defence counsel who in criminal proceedings is defending a
client charged with murder. It should also be noted that the
Constitutional Court applied a strict proportionality test in some much
less convincing cases, e.g. in Decision No. U-I-141/97, which did not
concern criminal proceedings but restrictions regarding tobacco
advertising, which did not concern an individual but a producer of tobacco
products, and which did not concern the freedom of expression in defending
the rights of a defendant in criminal proceedings but the freedom of
economic propaganda.
5. Perhaps it would be reasonable to include
in the decision also some other circumstances, e.g. that the
constitutional complaint was accepted for consideration by a minority of
judges (and not at the panel session, as is the case in the majority of
cases) and that I motioned (several times) to be disqualified from
discussing and deciding the case, which, however, the Constitutional Court
did not wish to accept.
6. I can also agree with the following
standpoint of the Constitutional Court from paragraph 12 of the reasoning,
which reads as follows: “It is understandable that in cases of defending a
defendant charged with a grave criminal offence for which a severe penalty
is prescribed, the tolerance threshold which may be allowed by the courts
may be higher than in other cases, however, the defence counsel may
not cross the outer boundaries of this tolerance. If he does cross them,
it is proper that the court protects other values, i.e. confidence in the
judiciary and the good reputation and authority of the judiciary, which
ensures that the public respects the courts and has confidence that the
courts are able to perform the role they have in a state governed by the
rule of law…”. This standpoint undoubtedly has great significance for
deciding the constitutional complaint at issue. Nonetheless, the final
result (dismissal of the constitutional complaint) does not convince
me.
7. I argue that the decision has three weaknesses: (1) The
fundamental starting-point for a decision in the case at issue should be
the significance of the freedom of expression in general and particularly
in cases concerning defence counsels in demanding criminal proceedings;
(2) In my opinion, in the decision the Constitutional Court did not refer
properly to its hitherto case-law; (3) Finally, I feel that the case-law
of the European Court of Human Rights was inadequately referred
to.
8. The Constitutional Court, in my opinion, lays too much
emphasis on the limitations of the freedom of expression which allegedly
follow from the fact that a defence counsel takes part in judicial
proceedings. In the above-cited paragraph 12 of the reasoning of the
decision, the Constitutional Court held as follows: “Due to the fact that
a defence counsel takes part in judicial proceedings and that his right to
freedom of expression is intended for the protection of the rights of
others, it is limited to a greater extent than the right to freedom of
expression of any other individual in a public space may be limited…”.
Such starting point resulted in the review of the complainant's conduct in
the case at issue being too strict. Even more so, as also the introductory
part of the reasoning (paragraph 1) does not begin with the complainant's
emphasis on the significance of the freedom of expression but by citing
(extracted) citations from his reasoning of a motion[4] that the court
call other experts. The Constitutional Court indeed subordinately admitted
that it is understandable that “in cases of defending a defendant charged
with a grave criminal offence for which a severe penalty is prescribed,
the tolerance threshold which may be allowed by the courts may be higher
than in other cases, however, the defence counsel may not cross the
outer boundaries of this tolerance” (paragraph 12). Such starting points
attempt to lead to a dismissal of the constitutional complaint by taking
short-cuts. Such starting points unjustifiably regard the fact that the
defence counsel's right is intended for the protection of the rights of
others (the defendant) as a basis for a restrictive understanding of the
defence counsel's freedom of expression. Moreover, the tolerance that the
court may (!) take into consideration is reduced to some kind of a
mitigating circumstance which cannot influence a decision whether the
violation of the defence counsel's human rights occurred (but could at
best raise doubts regarding the amount of the imposed fine, if such was
too high). Instead, it would be more appropriate to proceed from the
significance of the freedom of speech and the freedom of expression as
well as from the special role which is given to this freedom by the
specific situation in the criminal proceedings at issue in which the
complainant's client was facing thirty years of imprisonment.
9.
The constitutional significance of the freedom of speech and other rights
included in the freedom of expression is extraordinary. It is the most
universally recognised constitutional right.[5] This freedom is contained
in the oldest and virtually all contemporary constitutions and
international instruments which regulate the protection of human rights.
According to Dr. Igor Kaučič, it is a group of rights which are “the
foundation of a democratic political system”.[6] Just as old as the
freedom of speech are also various interferences, limitations, and
violations of this freedom, and thus its protection before constitutional
courts[7] and before international courts is of particular importance. As
early as in 1976, the European Court of Human Rights pointed out (the case
of Handyside v. United Kingdom) that the freedom of expression constitutes
one of the essential foundations of a democratic society, one of the basic
conditions for its progress and for the development of every man.[8] For
the case at issue, what is particularly important is the standpoint
adopted in constitutional theory that it is not merely the right which is
a value in itself, but that it is also the best means which leads to
discovering the truth.[9] This aspect is particularly important in
criminal proceedings.
10. The Constitutional Court extensively
refers to Decision No. U-I-145/03 in paragraphs 8, 12, 14, and 15 of the
reasoning of the decision at issue. The cited decision also has its good
points, as it substantiates using sound arguments the need to protect the
authority and good reputation of judges and courts against destructive
attacks. Moreover, it very convincingly stated that a court that decides
to apply Article 109 of the Civil Procedure Act must carefully weigh
whether critical and perhaps sharp statements concern an allowed exercise
of the right to be heard in proceedings, in accordance with Article 22 of
the Constitution, which is necessary for the effectiveness of the right to
judicial protection: “If in a concrete case the court does not consider
these aspects to a sufficient extent, this could entail a limitation, i.e.
one that is inadmissible, of the right to be heard. As also held by the
European Court of Human Rights, it concerns determining the right measure
and the definition of such limits. At the statutory level, this cannot be
more precisely defined, but the court must consider such in every concrete
case” (paragraph 13 of the reasoning).
11. Regardless of the fact
that the above-cited decision explicitly opposes too casual punishment, it
is not a good basis for deciding in the case at issue. Why not? It must be
taken into consideration that the review of the constitutionality of
Article 109 of the Civil Procedure Act referred to punishments in civil
proceedings and not in criminal proceedings and it referred to
contemptuous criticism of the court, whereas in the case at issue the
matter concerns criticism of the expert opinion, not the court. The
interference with the complainant's freedom of expression by means of
punishing him for contempt of court, which entails a manifest, severe, and
sudden interference (conviction for the insult of experts and an imposed
fine), can have severe consequences for the complainant. Only an
assessment that an established lawyer would not have any difficulty paying
such fine would lead to a different standpoint.[10] Even if this was true,
it must be taken into consideration that the complainant did not file the
constitutional complaint only or primarily because of its financial
consequences. Other possible consequences are namely much more severe for
the complainant. If a defence counsel is punished for some sharp criticism
of an expert opinion expressed at the main hearing in a case in which a
defendant is facing thirty years of imprisonment, this can result in the
situation that defence counsels in other similar criminal proceedings will
be forced to watch every word they say, instead of devoting their
attention to the protection of defendants' interests self-confidently and
freely. Such precedent would be utterly dangerous if the courts understood
the dismissal of the constitutional complaint as a directive that in cases
in which a defence counsel substantiates by sharp criticism of the expert
opinion the need for a new expert opinion, and instead of obtaining such,
he then “achieves” what the complainant did, i.e. a punishment. I
certainly can agree with the possible objection that judges and lawyers
who have certain personal standards will not change the manner of their
work because of the fact that the constitutional complaint at issue has
been dismissed. Nevertheless, messages which follow from punishing the
complainant and dismissing the constitutional complaint are by no means
encouraging from the viewpoint of the protection of the rights of lawyers
and their clients.
12. Even if we proceed from the assumption that
Decision No. U-I-145/03 is entirely undisputable (after the change therein
and the disputable standpoint adopted in Decision No. U-I-150/03), the
wide application of this decision in the case at issue is nevertheless not
convincing. It is not convincing not only because in the case at issue the
matter concerns criminal proceedings and criticism of experts and not the
court, but also because the matter does not concern an abstract
constitutional review of the possibility of punishment for contempt of
court, but a concrete review of the question whether the punishment in the
case at issue was justified. This does not, however, entail that the
above-cited decisions are not a binding framework also for deciding in the
case at issue. They are. However, also other decisions should be taken
into consideration, for example the decision in the case of the writer
Breda Smolnikar, which concerns the freedom of artistic endeavour, which
falls into the broader circle of rights embraced in the freedom of
expression.[11] In this decision the Constitutional Court underlined the
great importance of the freedom of artistic endeavour. Thereby, the
constitutional complaint enjoyed an epilogue which the complainants can
usually expect only at the more distant international level, before the
European Court of Human Rights. It is difficult for me to objectively
evaluate the importance and precedent value of this decision, which I
voted in favour of. I do believe, nevertheless, that it did stress in a
convincing and brave manner the significance of the freedom of artistic
endeavour of the author, whose artistic work was prohibited and doomed to
disappear and be physically destructed without any convincing
(constitutional) legal basis existing for such. The Constitutional Court
“held that the interference of the courts with the complainant's right to
artistic endeavour was excessive and that the reasons stated by the courts
are not sufficient for the courts to justify such interference. The
challenged judgments thus violated the complainant's right determined in
Article 59 of the Constitution, and therefore the Constitutional Court
annulled them” (Decision No. Up-406/05 dated 12 April 2007, paragraph
12).
13. The selection of the case of Nikula v. Finland is not so
much about a bad choice (the range of cases that could have been selected
is indeed very wide), as it is about the question of whether this case was
applied in the appropriate manner. In this case, as in numerous other
cases, the European Court of Human Rights established a violation of
Article 10 of the ECHR. Thus, the very extensive citing of the judgement
of the European Court of Human Rights (in five footnotes) is
questionable,[12] especially because the citations were used to
substantiate the opposite decision (the dismissal of the constitutional
complaint) and because it does not follow from them that the European
Court of Human Rights established a violation of the freedom of expression
determined in Article 10 of the ECHR. The Constitutional Court did not
refer to the part of the reasoning of the judgment which was a basis for
such a decision (paragraphs 50 to 56 of the reasoning of the judgment of
the European Court of Human Rights).[13] The European Court of Human
Rights in its reasoning, inter alia, stresses the importance of the
difference between cases which concern only criticism of the prosecutor
and not the judge or the court as a whole (paragraph 50).[14] From the
viewpoint of the case at issue it is interesting that the European Court
of Human Rights noted that criticism directed against a prosecutor voiced
in the courtroom does not have the same weight as criticism voiced in the
media (paragraph 52)[15] and pointed out that this is a known, often
voiced standpoint of the European Court of Human Rights.[16] In the case
of Nikula the part of the argumentation of the European Court of Human
Rights which was the basis for the decision that Finland violated Article
10 of the ECHR and for awarding just satisfaction to the applicant, is of
key importance. The European Court of Human Rights assessed that the
restriction – even by way of a lenient criminal penalty – of a defence
counsel's freedom of expression can be accepted as necessary in a
democratic society only in exceptional cases.
14. The
Constitutional Court decision in the case at issue and the European Court
of Human Rights judgment in the case of Nikula are in form and content
rather disparate. I see greater similarities between the decision and the
already mentioned dissenting opinion of Judges Caflisch and Pastor
Ridruejo, who voted against the European Court of Human Rights judgment on
the violation of Article 10 of the ECHR and defended the position that
punishing the defence counsel for insulting statements about the
prosecutor was justified. The separate opinion, similarly as the
Constitutional Court decision, opens with a citation of the allegedly
insulting criticism of the applicant[17] and ends with the conclusion that
Article 10 of the ECHR was not violated. Anyone who can agree with the
opinion of the judges who wrote the separate opinion, can also agree with
the decision and the reasoning of the Constitutional Court in the case at
issue. Naturally this, seemingly strong, structure which substantiated the
justification for punishing the defence counsel in the case of Nikula v.
Finland became unconvincing when a majority of five judges voted in favour
of the finding that Finland had violated the freedom of expression
determined in Article 10 of the ECHR.
15. The European Court of
Human Rights draws attention to the impartiality of a criminal court,[18]
the equality of arms, and the chilling effect of possible penalties for
the conduct of defence counsels on other criminal proceedings.[19] These
emphases are so much more relevant for Slovenia in view of the fact that
before Slovene courts only lawyers may be punished, whereas state
prosecutors cannot be punished for insulting the court or participants in
criminal proceedings (Article 78 of the Criminal Procedure Act). This is
nothing other than one more reason arguing against casual punishment of
lawyers and against a broad interpretation according to which the fact
that Article 109 of the Civil Procedure Act passed the review of
constitutionality (case No. U-I-145/03) is an appropriate basis for the
review of the case at issue, which took place in particularly demanding
criminal proceedings.[20] From the above discussion, it can be concluded
that there exists the possibility of several milder sanctions that could
be imposed on a defence counsel instead of a fine: first, to give a
warning to a defence counsel and to prohibit him from appearing before the
court when, in the opinion of the court, he crosses the boundaries of
allowed conduct, second, to notify the Bar Association of his behaviour
(by the analogy that the court may notify the competent state prosecutor
if a state prosecutor crosses such boundaries), and third, the expert can
file a private claim against a person who expresses insulting
criticism.[21] These are milder measures which can reach the same aim such
that neither the court nor the defence counsel would need to deal with a
new matter, i.e. with substantiating or challenging a fine for contempt of
court. The latter namely diverts the defence counsel's and the court's
attention from demanding criminal cases.
16. It follows from the
judgment of the European Court of Human Rights in the case of Nikula v.
Finland that a state brought before the European Court of Human Rights can
be exculpated only if it convincingly demonstrates that a basis for
punishment was a pressing social need (paragraph 55). There are dozens of
judgments of the European Court of Human Rights in which it established a
violation of Article 10 of the ECHR because the state did not manage to
demonstrate such. In each of them there can be found great emphases on how
limitations of the freedom of expression in general entail an inadmissible
and disproportionate interference with the convention right determined in
Article 10 of the ECHR.
17. For illustration, let me cite only
those judgments of the European Court of Human Rights in which a violation
of Article 10 of the ECHR was established and in which the European Court
of Human Rights emphasized that the ECHR protects the freedom of speech
against interferences also in cases in which the manner of expression is
not oppositional, but rather offends, shocks, or disturbs: Sunday Times v.
United Kingdom (1979), Lingens v. Austria (1986), Observer and Guardian v.
United Kingdom (1991), Sunday Times v. United Kingdom II (1991),
Vereinigung Demokratischer Soldaten Österrichs and Gubi v. Austria (1994),
Vogt v. Germany (1995), De Haes and Gijsels v. Belgium (1997), Oberschlick
v. Austria (1997), Grigoriades v. Greece (1998), Incal v. Turkey (1998),
Hertel v. Switzerland (1998), Lehideux and Isorni v. France (1998),
Fressoz and Roire v. France (1999), Bladet Tromsø and Stensaas v. Norway
(1999), Karataş v. Turkey (1999), Sürek and Özdemir v. Turkey (1999),
Ceylan v. Turkey (1999), Arslan v. Turkey (1999), Gerger v. Turkey (1999),
Okçuoğlu v. Turkey (1999), Sürek v. Turkey II (1999), Öztürk v. Turkey
(1999), Wille v. Lichtenstein (1999), Nilsen and Johnsen v. Norway (1999),
Özgür Gündem v. Turkey (2000), Bergens Tidende and Others v. Norway
(2000), Şener v. Turkey (2000), Lopes Gomes da Silva v. Portugal (2000),
Du Roy and Malaurie v. France (2000), Jerusalem v. Austria (2001), Thoma
v. Luxemburg (2001), Marônek v. Slovakia (2001), Feldek v. Slovakia
(2001), Association Ekin v. France (2001), Perna v. Italy (2001), Dichand
and Others v. Austria (2002), Unabhängige initiative informationsvielfalt
v. Austria (2002), Gawęda v. Poland (2002), Skałka v. Poland (2003),
Scharsach and news Verlagsgesellschaft mbH v. Austria (2003), Gündüz v.
Turkey (2003), Busuioc v. Moldova (2003), Giniewski v. France (2006),
Malisiewicz-Gasior v. Poland (2006), Raichinov v. Bulgaria (2006), Klein
v. Slovakia (2006), Kobenter and Standard Verlags GMBH v. Austria (2006),
Mamere v. France (2007), Radio Twist, a.s. v. Slovakia (2007), Kwiecień v.
Poland (2007), Vereinigung bildender Künstler v. Austria (2007), Lepojić
v. Serbia (2007), Filipović v. Serbia (2007), Kuliś v. Poland
(2008).
18. Within the framework of this separate opinion, the
case-law of the European Court of Human Rights regarding violations of
Article 10 of the ECHR cannot be analysed in detail. Nevertheless, it can
be concluded that the European Court of Human Rights shows a particular
sensibility for such interferences and sets high standards, which the
signatories to the ECHR must respect. It clearly follows, inter
alia, from the above-cited cases that it is not enough to prove the
contemptuous nature of expressed statements and criticism (in particular
if such were stated in proceedings while defending a defendant in criminal
proceedings) in order for the court to impose a punishment on the person
who expressed them. Therefore, in order to substantiate the Constitutional
Court decision in the case at issue, it would be more appropriate to
select one of the decisions of the European Court of Human Rights which
did not establish a violation of Article 10 of the ECHR.
19. Why is
the judgement of the European Court of Human Rights in the case of
Kyprianou v. Cyprus particularly important in the case at issue, which is
not mentioned in the Constitutional Court decision at all? The applicant
was an experienced lawyer who resolutely opposed the court when it wanted,
in his opinion, to overly restrict and direct his defence of the
defendant, charged with murder. He was sentenced to five days’
imprisonment for contempt of court. The applicant was not successful
before the Cypriot Supreme Court, whereas the European Court of Human
Rights granted his appeal. The Grand Chamber of the European Court of
Human Rights decided that it would not review the issue of the violation
of freedom of expression determined in Article 10 of the ECHR within the
scope of the violation of Article 6 of the ECHR (the right to a fair
trial), but that it would review such separately. The European Court of
Human Rights adopted the standpoint that the case concerns an interference
with the applicant's right to freedom of expression (paragraph 166 of the
reasoning). The European Court of Human Rights examined whether the
applicant’s conviction and sentence, which indeed has a legal basis in the
Cypriot Constitution and law, was necessary in a democratic society. When
conducting the test of “necessity in a democratic society” it also
considered the margin of appreciation of the contracting states (paragraph
170) and answered the question in the negative. Thereby it proceeded from
the special status of lawyers in criminal proceedings (paragraph 173) and
from the great significance of the freedom of expression for their
functioning (paragraph 174). Lawyers are in an exceptionally difficult
situation when defending the interests of their clients before the court.
The European Court of Human Rights furthermore drew attention to paragraph
20 of the Basic Principles on the Role of Lawyers (adopted in 1990 by the
Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders), which determines that lawyers should enjoy civil
and penal immunity for relevant statements made in good faith in written
or oral pleadings in their professional appearances before a
court.
20. What is particularly interesting is the part of the
judgment of the European Court of Human Rights in which it refers to the
difficult role that lawyers play while defending their clients in court,
particularly in the context of adversarial criminal trials, where they are
split between their own interests and that of their clients (paragraph
175). The European Court of Human Rights emphasized that in such cases in
which the applicant expressed a certain disrespect for the court whilst
defending an accused in a murder trial (paragraph 176) a fair balance must
be struck between, on the one hand, the need to protect the authority of
the judiciary and, on the other hand, the protection of the applicant’s
freedom of expression in his capacity as a lawyer (paragraph 177). It held
that the interference with the applicant's freedom of expression was
disproportionate, despite the fact that the applicant only served part of
the prison sentence (paragraphs 182 and 183). On such basis the Grand
Chamber of the European Court of Human Rights unanimously held that there
had been a violation of Article 10 of the ECHR (freedom of
expression).
21. From the European Court of Human Rights judgment
in the case of Kyprianou v. Cyprus, it follows that the interference with
the freedom of expression is so important that it has to be reviewed
independently and not within the scope of the violation of the right to a
fair trail; that restrictions of the freedom of expression in the form of
punishing a defence counsel for contempt of court are a particularly
sensitive and important question of principle; and that while reviewing
the interferences with the defence counsel's freedom of expression in the
most demanding criminal proceedings it must be taken into consideration
that he must do everything in his power to ensure the successful defence
of a defendant.
22. At this point another interesting similarity
between the Kyprianou case and the case of the discussed constitutional
complaint of Dr. Peter Čeferin can be observed: experienced defence
counsels cannot be dissuaded from defending their clients by any threat of
punishment (in the case of Kyprianou the lawyer went to prison rather than
apologize to the court, which, in his opinion, inadmissibly restricted his
right to expression, and in the case at issue the lawyer, despite the
sentence, repeated the same strong criticism of the expert work before the
appellate court and was consequently imposed a more severe sentence).
23. These are the essential weaknesses for reason of which I could
not vote in favour of the Constitutional Court decision in the case at
issue. Would a different starting point for the review of the interference
with the freedom of expression and a more comprehensive consideration of
the hitherto case-law of the Constitutional Court and the European Court
of Human Rights have led to a different result? In my opinion, the answer
to this more or less hypothetical question could also be affirmative.
Naturally it is easier to draw attention to the weaknesses of the adopted
decision than to offer an alternative. Reasonable doubt is therefore
necessary also regarding my position, so that I cannot be criticized for
that which Dr. France Prešeren was criticized while unsuccessfully
applying to be a lawyer for a whole decade, namely for voicing “rebuke
that pardons its own mistakes, but whips all the rest to its heart's
desire…”.[22]
Dr. Ciril Ribičič
Judge
Notes:
[1]
Under the title Beyond Reasonable Doubt, Helen Joyce in +Plus
Magazine of 21 September 2002 describes the conviction of a mother for the
double murder of her small children who suddenly died during their sleep.
An expert witness for the prosecution claimed that the chance of two
children in the same family both dying a cot death was 1 in 73 million,
which would mean that such a double death would occur less often than once
a century in England. The author in the magazine dedicated to mathematics
argues that a more accurate calculation would be that the second cot death
in the same family can occur once or twice every year. What reaction of a
defence counsel to such an expert opinion which led to his client’s life
imprisonment (the judgment of conviction was quashed in 2003) would be
exaggerated?
[2] Dr. Aleš Galič emphasizes that the constitutional
requirement only entails that the courts provide arguments when they
change their position why they deviated from the established and unified
case-law and state sound legal reasons for the changed position (“Argument
of Precedent” or the Position of the Constitutional Court of the Republic
of Slovenia on the Prohibition of an Arbitrary Deviation from Case-Law,
Revus, No. 1/2003, p. 48). Also Judge Milojka Modrijan supported the
requirement for the convincing argumentation of the changed position of
the Constitutional Court in her dissenting opinion in Case No. U-I-130/01,
dated 5 June 2002.
[3] Such attitude towards separate opinions is
probably a consequence of the lack of tradition in this field and the fact
that within the regular court system separate opinions do not exist. It
must be admitted, however, that it is rather difficult to find cases in
which courts when changing their positions referred to separate opinions
which defended such solution in the past. I did find them at the Supreme
Court of Norway, which, for example, in Case No. 2002/1008 dated 12
October 2002 wrote with reference to this: “The Supreme Court agreed with
the opinion expressed by the minority in case Rt.2001, p. 1434, and joined
its reasoning.”
[4] Among the strong and sharp criticism of the work of
the experts was also the statement regarding the “professional weakness of
the expert witnesses”. This is questionable because by dismissing a
constitutional complaint (and by establishing that judicial decisions did
not inadmissibly and excessively interfere with the complainant's right
determined in the first paragraph of Article 39 of the Constitution) the
Constitutional Court establishes standards on the basis of which in future
similar cases a punishment for contempt of court (for contemptuous
criticism of experts) will be meted out to those participants in criminal
proceedings who provide sound arguments for their allegations that the
experts in their case showed professional weakness, regardless of the fact
whether such allegations are true or not.
[5] M. Janis, R. Kay and A.
Bradley, European Human Rights Law, Oxford University Press, 2000, Second
Edition, p. 138.
[6] Dr. Igor Kaučič, Dr. Franc Grad, Ustavna ureditev
Slovenije, Druga izdaja, GV Založba, Ljubljana, 2000, p. 121.
[7] With
reference to the above-mentioned, Dr. Andraž Teršek wrote:“…Therefore, the
freedom of expression is one of those constitutional guarantees which is
by its nature a constitutional matter, whereas deciding on its factual
content, role, significance, and concrete application is in the last
resort in the domain of the impartial constitutional judiciary and not of
the majority political power.” (Svoboda izražanja, IDC SE, Ljubljana,
2007, p. 13).
[8] More: C. Owey and R.C.A. White, The European
Convention on Human Rights, Oxford University Press, Third Edition, 2002,
p. 276.
[9] Ibidem, p. 139.
[10] From this viewpoint, the
opinion of an emeritus professor, Dr. Ljubo Bavcon, expressed at the
Annual Meeting of Slovenian Lawyers in Rogaška Slatina in 2005, is
interesting: “With reference to defence counsels, there are several,
albeit erroneous, but very tenacious convictions and prejudices in the
public. First of all, attention must be drawn to the rather deeply
rooted prejudice that an “honourable” lawyer cannot represent and defend
“crooks”, and if he does, he does so only for the money. This elementary
lack of understanding of the role and significance of the defence counsel
is, in my opinion, a foundation for mistrust, and for a generalized
negative assessment of every move made by the defence counsel which is
contrary to the belief of the public that a defendant is indisputably the
perpetrator of the offence for which he has been charged and that he is
guilty.”
[11] Cf. Gilles Duterte, Key Case-Law Extracts, COE
Publishing, Strasbourg, 2003, p. 313.
[12] In the decision at issue the
complainant, amongst his allegations, refers to the judgment in the case
of Nikula v. Finland “in which the European Court of Human Rights
allegedly adopted the standpoint that Article 10 protects not only the
substance of the ideas and information expressed, but also the form in
which they are conveyed and that the right to freedom of expression is an
essential element of the right to a defence which is necessary for a fair
trial…” (paragraph 3 of the reasoning).
[13] The Constitutional Court
mentioned paragraph 51 only to demonstrate that in the case of Nikula v.
Finland the defence counsel did not criticize the prosecutor's general
professional or other qualities but only the prosecutor's behaviour in the
proceedings against her client. How relevant the difference is between the
cases is shown in the dissenting opinion of Judges Caflisch and Pastor
Ridruejo, who assessed that these were accusations of professional
misconduct and were, indeed, dishonesty levelled at the prosecutor, which
resulted in a very lenient sanction – to pay the court the costs of
proceedings – as the Finnish Supreme Court waived the main sanction – a
fine. The case is interesting also from the viewpoint of the allegation
that a fine in the case at issue is an argument supporting the standpoint
that the constitutional complaint should not be reviewed on the merits
because it is not important and therefore inadmissible.
[14] In the
case at issue, the Constitutional Court held (paragraph 13) that the
authority of experts must be protected “in the same manner as the
authority of the judiciary” and rejected the complainant's allegations
that a situation in which insulting expressions are directed towards the
court is different than a situation in which such expressions are directed
towards expert witness.
[15] Also Dr. Andraž Teršek points out these
two aspects: “What must be taken into consideration is the difference
between a situation in which a defence counsel, on one hand, publicly and
directly criticizes the court, above all its partiality and alleged
unfairness in conducting proceedings, and, on the other hand, a situation
in which a defence counsel is, for example, critical towards an expert
opinion which is decisive for his client. And it is not the same if the
defence counsel voices criticism on account of adjudication in the court
room, during proceedings, or following the end of the proceedings in
public, through the media, etc.” (Svoboda izražanja, IDC SE, Ljubljana,
2007, p. 72).
[16] In the case at issue, the Constitutional Court
adopted the standpoint that due to the fact that a defence counsel takes
part in judicial proceedings “[…] his right to freedom of expression […]
is limited to a greater extent than the right to freedom of expression of
any other individual in a public space may be limited.”
[17] The
authors of the separate opinion stated the following allegedly insulting
criticism which the defence expressed as regards the prosecutor: “blatant
abuse in respect of the presentation of evidence”, of procedural tactics
designed “to make a witness out of a co-accused so as to support the
indictment”, of “trumped-up charges”, of “deliberate abuse of discretion”,
of “role manipulation” and, to sum up, of “breaching his official duties
and jeopardising legal security”.
[18] From this point of view Dr.
Boštjan M. Zupančič very critically discussed the possibility of punishing
defence counsels for contempt of court in his concurring opining in the
case of Kyprianou v. Cyprus.
[19] In the opinion of Dr. Andraž Teršek
the “independence, sovereignty, and freedom of expression by which a
defence counsel defends the rights and interests of his client, as well as
the genuine independence and impartiality of the court (most of all in the
most important judicial cases, which for example concern imprisonment or
substantial amounts of money) are more important than the possible
personal feelings of judges, jurors, prosecutors, opposing witnesses, or
an expert on “the appropriateness” of a defence counsel's conduct and his
personal (emotional) hurt feelings.” (Svoboda izražanja, IDC SE,
Ljubljana, 2007, p. 72).
[20] The demanding nature of the proceedings
is reflected in the fact that the client of the defence counsel, who was
punished for contempt of court, was sentenced to thirty years of
imprisonment and that the constitutional complaint (in which he, inter
alia, alleged a violation of the right to be present at his trial and
the right to present all evidence to his benefit) which he lodged was
accepted for consideration by the criminal panel of the Constitutional
Court (Ruling No. Up-3367/07, dated 27. March 2008).
[21] Also the
constitutional complaint pointed out that there is such a possibility and
added that private prosecution in such a case could not have been
successful because it would have to be proven that the defence counsel had
the intention to despise when expressing criticism of the expert
witnesses.
[22] In the opinion of Skaberne, this was one of the reasons
that in 1843 Dr. France Prešeren could not become a lawyer. Cf. Dr.
Peter Čeferin, Odvetniška zbornica Slovenije, Odlomki iz zgodovine,
Ljubljana, 2006, pp. 13, 14.
The Concurring Opinion of Judge Jan
Zober
1. I decided to write a separate opinion for three
reasons. First, to strengthen and illustrate more clearly certain
supporting arguments of the decision (with which I certainly agree),
second, because a separate opinion allows me a somewhat more personal (and
freer) manner to express myself, and third, to answer the opposing
arguments expressed during a discussion at the plenary session (which the
reasoning of the decision did not answer entirely or perhaps not
thoroughly enough). I will dedicate my attention to three issues: what is
the role of a lawyer in judicial proceedings, how special is the position
of experts in judicial proceedings, and why judgment in the case of
Kyprianou v. Cyprus[1] is not similar to the case at issue.
2. At
the plenary session the particular position of the constitutional
complainant in his capacity as defence counsel in the criminal proceedings
in question was mentioned several times. His client was charged with the
triple murder of his closest relatives, and the defence counsel (i.e. the
constitutional complainant) was allegedly personally convinced that his
client had not committed the offence and that the court had decided on his
guilt in advance – in short, that the court had formed an opinion in
advance that his client was the perpetrator of this atrocious crime.
Therefore, the court was allegedly not disposed to accepting new evidence
– perhaps because of a subconscious fear that such would weaken or
completely undermine this prejudice. In his excessive zeal to help his
client, of whose innocence he was deeply convinced, in an emotional
fervour he used words which the court assessed as insulting personal
disparagement of the expert witnesses as experts. Due to this particular
position – the serious accusation against his client and the defence
counsel's strong emotional engagement stimulated by his deep conviction
that his client was innocent, the courts should allegedly have had a
higher tolerance threshold in assessing how far the lawyer (i.e. the
defence counsel) may go with the sharpness and uncompromising nature of
his criticism of the expert opinions which were “devastating” for his
client.
3. At first sight it indeed seems that in such situations
the courts could show more understanding and higher tolerance for the
defence counsel's sharp, uncompromising, even rude and impolite words. But
only at first sight. If we namely think of defence counsels' role in
judicial proceedings and of the purpose of the representation they
provide, we cannot avoid a consideration of certain fundamental features
of judicial proceedings. What seem important to me in this respect is the
rational nature of judicial proceedings, or, if you prefer, a message
conveyed by the definition of judicial proceedings which sees in such
proceedings a manner of resolving disputes by force of rational,
reasonable arguments – and which determines that judicial proceedings are
in their essence a conflict of arguments where instead of by arms and
physical force, disputes are won by means of arguments and the force of
reason.[2] The first commandment of the legal profession should therefore
be the elimination of everything that prevents and hinders reason, which
is the only faculty that enables one to develop reasonable arguments. A
defence counsel should therefore strictly avoid emotional outbursts – in
words as well as in actions – not only in order to protect the authority
and good reputation of the judiciary as a whole, but to the same extent in
order to protect the position of his client.[3] He should dedicate all his
mental capacity to reason and to finding reasonable arguments, which are
the only arguments that can benefit his client. His excuse, i.e. that he
used inappropriate words by which he insulted some of the participants in
the proceedings because he was convinced that his client, charged with a
triple murder, was innocent, and he was thus (justifiably) emotionally
engaged, and that in such situations (i.e. defending a client who is
facing thirty years of imprisonment) there should be more understanding,
is not sound for two reasons. Firstly, because it demonstrates the defence
counsel's weakness as a professional (not only because he was unable to
control the heat of his passion, but also because he was unable to find
good legal arguments - emotional outbursts are certainly not legal
arguments), and secondly, because it would, if we generalised it, in its
extreme lead to the conclusion that in judicial proceedings emotions win –
that ultimately the party whose defence counsel uses more emotional charge
and is therefore (entirely legitimately) allowed to be more daring, rude,
and contemptuous of the court and other participants in proceedings,
prevails. And perhaps thirdly: life experience shows that often an
(exaggerated) emotional reaction is the result of frustration. And when
does frustration usually arise in judicial proceedings: when one runs out
of rational arguments – either because there really are none (left), or,
because the defence counsel does not see them or is not capable of seeing
them, perhaps finding them, or articulating them. Precisely because the
proceedings were so fateful for the defendant (the remainder of his life
depended on the outcome of these proceedings – he was facing thirty years
of imprisonment, which he was ultimately sentenced to) his defence counsel
should have been that much more professional, that is, capable of focusing
on finding reasonable arguments for the defence which was the only thing
that could have benefited his client – instead of disparaging the
personality of the expert witnesses by expressing insulting criticism and
thereby directing the proceedings away from a reasonable discourse based
on rational and legal arguments, towards the irrational and, for effective
proceedings the disastrous – emotional sphere. Effective not only from the
viewpoint of the acceleration of proceedings, but also from the viewpoint
of the correct final decision which should be adopted on the basis of such
proceedings.
4. Expressing insulting criticism, which goes beyond
sharp criticism, and by which a defence counsel expresses personal
disparagement of an expert, cannot be, in my opinion, ever excused in
rationally organized judicial proceedings by alleging that the defence
counsel firmly believed in the innocence of his client and that his
professionalism (and within this framework, the ethics of his profession)
required that he do everything to attain his client's acquittal (even if,
for example, he exposes himself to sanctions in the proceedings).
Precisely because of his professionalism and because (as he is bound by
the standards of the legal profession)[4] he is well aware that in
judicial proceedings only reasonable arguments win, he must always and in
every situation, exclusively and solely in order to protect the benefits
of his client, be able to retain his composure and keep his cool and save
all his mental capacities for his argumentation. An old truth states that
when emotions reign, reason fails. And something more. A wise lawyer who
finds himself a party before the court due to some unfortunate
circumstances will authorise a defence counsel to represent him – even if
the dispute is from his field of expertise which he has mastered
brilliantly. Why? (Also) because he knows that an emotionally uninvolved
professional legal representative will find good rational (legal)
arguments sooner than he would – because his legal representative is not
personally involved and therefore his capacity to engage the rational
sphere of his mental potential is not diminished. And to conclude (this
paragraph): the constitutional complainant proved that his disagreement
with the expert opinion as well as his sharp and uncompromising (even
possibly “destructive”) criticism could be expressed in a dignified manner
and thus in a manner appropriate to the position of a lawyer (a manner
which is not clearly contrary to the legal and general cultural level),
with his allegations in the constitutional complaint in which he repeated
what he had said at the main hearing but without contemptuous criticism of
the expert witnesses (for which he was punished by a fine). His
standpoints “… that […] for his expert opinion the expert witness applied
diagnostic and therapeutic methods for which he was not trained, that he
wrote in his expert opinion that he used the Binet test, although he has
never in his life seen the original version of this test…” and that “… to
the questions whether he has ever heard that anyone who was symbiotically
attached to his mother would liquidate her, that a person who has suffered
all his life because of the exaggerated fear of abandonment would kill all
the people that he was close to and was afraid of losing, […] he coolly
answered that such a person, […] the moment when his mother cannot meet
his wishes, is capable of eliminating such object, which means, according
to the expert witness, also to murder his mother” because of which “the
defence […] assessed such expert witness as utterly irresponsible”, are
certainly sharp, severe, perhaps also impolite statements for which it
could even be said that the defence counsel showed a certain disrespect
towards the expert witness. However, it is of essential importance that
they were directed towards and limited to the manner of work of the expert
witness.[5] Characterising the work of the expert witnesses by the
expressions: “meaningless drivel”, “the expert witness's works of art”,
“professional weakness of the expert witnesses”, “the psychiatrist
resorted to psychological methods which he clearly does not understand”,
“a psychologist with archaic psychological methods from the stone age of
psychology and unscientific psychodynamic concepts” was not, however,
directed (or limited) to the manner of work of the expert witnesses but to
his personal disparagement of them as experts.[6]
5. The
constitutional complainant indeed did not direct statements which
contained contemptuous criticism at the court, but they were addressed to
the expert witness. The reasoning of the decision correctly points out the
comparable nature of the position of permanently sworn-in experts to the
position of judges. Experts are more than merely providers of information
on the existence of legally relevant facts. Their activities and their
role are in many aspects close to those of adjudicating. They are namely
providers of the missing expert knowledge of judges and such knowledge
often balances the subjective nature or even prejudicial nature of other
personal means of evidence. The special nature of expert opinions also
lies in the fact that often the courts are provided knowledge which is
needed for a normative concretisation of a certain legal standard, thus
for the comprehension of a major premise of a judicial syllogism. The
application of a legal standard in an individual case can also not be
imagined without the application of typological arguments for a certain
social environment[7] - if such environment is professional, the expert
will inform the judge of the typical conduct and behaviours of such
environment. The normative concretisation of a legal standard itself is in
the exclusive competence of a judge, which is possible, however, only
through the knowledge communicated to a judge by an expert. In view of the
fact that experts communicate knowledge to the court which (if the matter
does not concern expert issues which exceed the level of general
knowledge) the judges should posses anyway – regardless of the concrete
proceedings (and should use such knowledge in adjudicating – either for
adopting a standpoint or an idea on the existence of the elements of a
minor premise,[8] or for searching and formulating a major premise), the
experts importantly participate in adjudicating (although an expert does
not adjudicate, he has a significant influence on adjudication – either
through the court on the assessment of evidence, or through influencing
the normative concretisation of legal standards). This is demonstrated by
active cooperation between experts and courts – experts have the right to
inspect a case file, to inspect medical and other documentation, to carry
out an inspection, to examine a party, to conduct various medical and
psychological tests and examinations, and to require additional
clarifications.[9] All the above-mentioned brings experts closer to
judges, i.e. places them in a position of a particular auxiliary to the
courts – “they are some kind of court bodies, colleagues, and public
officials in civil proceedings.”[10]
6. Experts are thus
substantially more or are something other than “[some]one who takes part
in proceedings”. This refers particularly to permanently sworn-in experts.
There is, therefore, no essential difference between situations in which
contemptuous criticism is directed towards a judge and situations in which
anyone in proceedings addresses such criticism to sworn-in experts. In
such cases, the limitation of the defence counsel's freedom of expression
in judicial proceedings must be proportional – in the same manner and to
the same degree (quantitatively) the “authority of the judiciary” must be
protected either in cases in which the excessive actions of defence
counsels are directed directly towards the judge who is conducting
proceedings, as well as in cases in which they are directed “merely”
towards an expert.
7. In his Letter from Norway,[11] Judge
Dr. Ciril Ribičič evaluated the pragmatic approach taken by the Norwegian
Supreme Court to be real, efficient, as well as principled, and according
to which the Supreme Court in every individual case in which it reviews
whether the European Convention on Human Rights (hereinafter referred to
as the ECHR) has been violated, tries to answer the following question: in
such a case, how would the judges of the European Court of Human Rights
decide here and now if the case was before them in Strasbourg. As I fully
agree with him, I think that the comparison with the case of Kyprianou v.
Cyprus should be drawn. Furthermore, during the plenary discussion the
judgment of the European Court of Human Rights in this case was used as an
argument against the decision which was later adopted, arguing that its
message calls for granting the constitutional complaint.
8. In my
opinion, the Kyprianou case is not comparable with the case at issue – at
least not regarding issues for which the European Court of Human Rights
unanimously held that there has been a violation of Article 10 of the
ECHR. For a better understanding of the case, I will briefly summarize the
essential elements of the state of the facts: the court interrupted the
lawyer (Kyprianou) by stating that the cross-examination he was conducting
was too detailed, to which he replied that he would stop the
cross-examination and then sought permission to withdraw from the case if
the court considered that he was not doing his job properly. The court
replied that the question whether an advocate is to be granted leave to
withdraw or not is a matter within the discretionary power of the court
and, in the light of what they had heard, no such leave was granted
(referring to the case of Kafkaros and Others v. the Republic). The lawyer
thereafter replied that since the court was preventing him from continuing
his cross-examination on significant points of the case, his role did not
serve any purpose. Thereafter followed the part which is (in my opinion)
of essential importance: the lawyer added the following: “And I am sorry
that when I was cross-examining, the members of the court were talking to
each other, passing a ‘ravasakia’[12] among themselves, which is not
compatible with allowing me to continue the cross-examination with the
required vigour, if it is under the secret scrutiny of the court.” The
court replied with the following: “We consider that what has just been
said by Mr Kyprianou, and in particular the manner in which he addresses
the court, constitutes a contempt of court and Mr Kyprianou has two
choices: either to maintain what he said and to give reasons why no
sentence should be imposed on him, or to decide whether he should retract.
We give him this opportunity exceptionally. Section 44 (1) (a) of the
Courts of Justice Law applies to its full extent.” The lawyer said that
they could try him and said the following in his defence: “I saw with my
own eyes the small pieces of paper going from one judge to another when I
was cross-examining, in a way not very flattering to the defence. How can
I find the stamina to defend a man who is accused of murder?” The judges
took a break in order to consider the matter, and then they ruled: “We
considered the matter during the adjournment and continue to believe that
what Mr Kyprianou said, the content, the manner and the tone of his voice,
constitute a contempt of court as provided for in section 44 (1) (a) of
the Courts of Justice Law 14/60 ... that is showing disrespect to the
court by way of words and conduct.” The court gave the lawyer one more
chance to be heard. The lawyer took it and said: “Mr President, certainly
during the break, I wondered what the offence was which I had committed.
The events took place in a very tense atmosphere. I am defending a very
serious case; I felt that I was interrupted in my cross-examination and
said what I said. I have been a lawyer for forty years, my record is
unblemished and it is the first time that I face such an accusation. That
is all I have to say.” After a short break the court sentenced the lawyer
to five days’ imprisonment, which he served immediately. He did not serve
the whole sentence, but this is not of crucial importance. What is crucial
is that he was sentenced to five days’ imprisonment and that the Supreme
Court dismissed his appeal.[13]
9. The case of Kyprianou is in
certain aspects similar to and in certain aspects different than the case
at issue. Both cases concern the conduct of a defence counsel conducting
the defence of a person charged with a murder. In both cases the defence
counsels (in the opinion of the criminal courts) used words that were too
sharp and insulting. The difference that the conduct of the Cypriote
lawyer was directed towards the conduct of the court, whereas in the case
at issue towards an expert, is, taking into consideration all that was
stated in paragraph 13 of the decision (and supported by what I said in
paragraphs 5 and 6 of this separate opinion), not all that important.
However, all other differences are important. The words and actions of the
lawyer Kyprianou for which he was imposed a (prison) sentence are in our
courts (unfortunately) something so to say ordinary. I do not risk
anything if I say that they are completely incomparable with the criticism
by which the complainant in the case at issue contemptuously disparaged
the expert witness. And there is something else. The lawyer Kyprianou
protested against the concrete conduct of the judges (who were, while he
was conducting a cross-examination, passing some kind of a note), whereas
the complainant expressed contemptuous criticism of the expert witnesses
by criticising their work, which he could, as the Higher Court wrote “have
done in countless other acceptable ways”. I wish to add to that that he
should have done so – as his client could only benefit from professional,
reasonable, and thoroughly weighted arguments. Furthermore, the most
important difference between both cases is that the Cypriote lawyer was
imposed a prison sentence (although he could have been punished by a fine
instead),[14] which is, with regard to its significance, severity, and
weight, and regarding the manner of enforcing such (the lawyer had to
serve the sentence immediately) completely incomparable with the
punishment imposed on the constitutional complainant.
10. The legal
importance of these differences can be grasped from the reasoning of the
judgement of the European Court of Human Rights (which a great number of
times refers to the case of Nikula v. Finland), which emphasized that also
the nature and severity of the penalties imposed are factors to be taken
into account when assessing the proportionality of an interference with
the freedom of expression guaranteed by Article 10 of the ECHR. Precisely
in the fact that lawyer Kyprianou was sentenced to imprisonment, the
European Court of Human Rights identified a decisive circumstance when in
paragraph 178 it wrote: “The Limassol Assize Court sentenced the applicant
to five days’ imprisonment. This cannot but be regarded as a harsh
sentence, especially considering that it was enforced immediately. It was
subsequently upheld by the Supreme Court.” What is also important is the
following idea from the Strasbourg tribunal. It namely stated that the
lawyer Kyprianou's conduct could be regarded as showing a certain
disrespect for the judges of the Assize Court (I cannot but repeat that in
Slovene courts such and similar disrespectful conduct is a very damaging
everyday practice); nonetheless, albeit discourteous, his comments were
aimed at and limited to the manner in which the judges were trying the
case, in particular concerning the cross-examination of a witness he was
carrying out in the course of defending his client against a charge of
murder (paragraph 179). It is indeed true that also the case at issue
concerns the charge of murder (actually, triple murder). But this is not
essential. What is essential is the circumstance that the remarks of the
lawyer Kyprianou “had been the direct object as to the manner in which
[the judges] had been conducting the proceedings” and were therefore
limited only to the concrete conduct of the judges (in fact it was
criticism of the conduct of the judges who, in the opinion of the defence
counsel, did not pay enough attention to the important procedural act
which he had been conducting at the time – a cross-examination is
certainly one of the strongest means of the defence of a defendant, as it
is intended to either draw out information on relevant facts which are to
the benefit of the defendant or to undermine incriminating witnesses'
credibility)[15] – the lawyer Kyprianou in the position of defence counsel
had to react immediately and firmly enough. On the other hand, in the case
of the constitutional complaint, the incident concerned insulting remarks
which entailed personal disparagement of the expert witnesses as experts,
whereby I also think that it is highly important that the complainant
(i.e. the defence counsel) could have reached the aim that he was
pursuing, as the Higher Court has (already) said “in countless other
acceptable ways”.
11. And finally we arrive at what is in my
opinion a decisive difference between the two cases. I think that this is
clearly enough expressed in paragraph 180, in which the European Court of
Human Rights said that it ”is not persuaded by the Government’s argument
that the prison sentence imposed on the applicant was commensurate with
the seriousness of the offence, especially in view of the fact that the
applicant was a lawyer and considering the alternatives available…”. “The
fact that the applicant was a lawyer” is naturally not important because
the European Court of Human Rights would consider that in court rooms
lawyers are allowed more, that they may be less respectful to the court
than other participants in proceedings,[16] but because (which the
European Court of Human Rights explains in the following paragraph –
paragraph 181) such a penalty[17] was disproportionately severe towards
the applicant and was capable of having a “chilling effect” on the
performance of the duties of lawyers as defence counsels. The European
Court of Human Rights finally held (paragraph 183) “that Article 10 of the
Convention has been breached by reason of the disproportionate sentence
imposed on the applicant.”
12. The case of Kyprianou is thus with
regard to decisive elements not similar to the case at issue. It appeared
at first sight that it did not deserve special consideration in the
reasoning of the decision. However, as the case was several times
mentioned in the discussion at the plenary session in which I argued my
position that the cases are not similar in the essential elements of the
concrete state of facts, and as a concurring opinion is primarily a public
presentation of the judge's arguments which for whatever reason did not
find their way into the reasoning (they were, however, expressed at the
session – and are in the judge's opinion important for a reasoning of the
decision), I thus wrote this concurring opinion.
Jan
Zobec
Judge
Notes:
[1] Judgment of the European Court of
Human Rights, dated 15 December 2005 (73797/01).
[2] Judicial
proceedings must be designed so as to allow open, free, and rational
discussion by all interested sides. In proceedings, the truth is
thus not (only) established, but is constructed. And the state of facts
“established” in such (rational) proceedings cannot have its legitimate
basis in some kind of ability of the court to come to see the truth, but
in respecting procedural rules and in reasonable arguments by which the
court substantiates its standpoints – not only regarding the selection and
interpretation (and then application) of a major premise, but also
regarding the ascertainment (perhaps more accurately, its establishment)
of a minor premise. The “ascertained” state of the facts thus does not
need to be legitimised outside the proceedings. On the contrary, what does
need justification is the overall integrity of the judicial proceedings
(cf. Uzelac, Istina u sudskom postupku, Pravni fakultet u Zagrebu,
1997, pp. 214 et sub.), i.e., whether the proceedings are such as
to allow an open, free, and fair exchange of competing rational arguments
and consequently the victory of those who are more convincing from the
expert, logical, and rational point of view.
[3] Protecting the
authority of the judiciary does not only include the notion that the
courts are the proper forum for the settlement of legal disputes and for
the determination of a person's guilt or innocence regarding a criminal
charge, but also the notion how this is done, i.e. the notion that these
disputes may only be settled or a person's guilt or innocence only
determined on the basis of rational (legal) arguments.
[4] Among which
there is most certainly the postulate “to be a servant of the law” – and
not an emotional servant of his client (cf. Čeferin, article
Odvetnik in etika, Podjetje in delo, No. 6-7, year 2007, p. 1574).
Article 77a of the Statute of the Bar Association of the Republic of
Slovenia determines as one of the violations of lawyers' duties any
inappropriate or insulting conduct or speech when practicing the legal
profession. The ethical rules of this profession also include
protecting the good reputation of the courts and other state authorities,
as well as strengthening public confidence in their work – due to which
they should refrain from insulting or deprecating statements about the
work of these authorities or about their decisions (cf. Article 18
of the Code of Professional Conduct of the Bar Association).
[5] In the
case of Kyprianou v. Cyprus (which will be discussed in more detail
below), the European Court of Human Rights emphasized precisely this
aspect when in paragraph 179 it stated: “The applicant’s conduct could be
regarded as showing a certain disrespect for the judges of the Assize
Court. Nonetheless, albeit discourteous, his comments were aimed at and
limited to the manner in which the judges were trying the case, in
particular concerning the cross-examination of a witness he was carrying
out in the course of defending his client against a charge of
murder.”
[6] This is also one of the key differences between the case
at issue and the case of Nikula v. Finland (see, footnote 14 of the
decision to which I am writing this separate opinion).
[7] Cf.
Pavčnik, Argumentacija v pravu, druga, spremenjena in dopolnjena izdaja,
Pravna fakulteta in Cankarjeva založba, Ljubljana, 2004, p. 142.
[8]
Every assessment of evidence requires certain abstract rules of life
experience, elementary, generally known rules of the particular profession
or even science (e.g. the rule that the same object cannot be at
two different places at the same time, the rule that ice cream melts in
the sun, that people blush in awkward emotional situations)
which bind evidentiary information on the facts to factual conclusions
whether a certain statement of a party on a legally relevant fact is true
(proved).
[9] Where an expert opinion is decisive for a decision of the
court and where experts' activities in essence replace a procedure for
taking evidence before the court, the parties must be ensured that they
may participate in experts' activities which are necessary for their
findings, e.g. attending the interviews held by the expert, asking persons
“interrogated” by the expert questions, stating their opinion regarding
the documentation which the expert intends to use (cf. the case of
Mantovanelli v. France – JD 1997-II, p. 424, summarized by Galič, Ustavno
civilno procesno pravo, GV Založba, Ljubljana, 2004, p. 172, cf.
the Supreme Court of the Republic of Slovenia, Order II Ips 772/2005,
dated 9 February 2006). In the opinion of some, the expert may even
collect information from third persons – however, he must inform the
parties thereof who may be present (Fasching, Lehrbuch des
österreichischen Zivilproßrecht, Manz, Vienna, 1990, p. 520).
[10]
Cf. Juhart, Civilno procesno pravo, Univerzitetna založba,
Ljubljana, 1961, p. 390; similar op. cit. Fasching, pp. 516, 517.
The function of a special auxiliary to the court was attributed to experts
also by the European Court of Human Rights in the case of Bönisch v.
Austria (Series A 92). The Court held that an expert is formally invested
with the function of a neutral and impartial auxiliary of the
court.
[11] Published in issue 19 of this year's Pravna praksa (p.
29).
[12] Ravasakia in Greek means short and secret letter or
note with love content. It can also mean anything written (document,
letter, etc.) mainly of an unpleasant nature, which is sent to
someone.
[13] Paragraphs 17 to 27.
[14] The president of the Assize
Court, however, considered that the imposition of a fine amounting to 75
Cyprus pounds (CYP) (approximately 130 EUR), that is, the maximum penal
sum provided by section 44 (2) of the Courts of Justice Law 1960 (Law no.
14/60), would have been the appropriate sentence.
[15] The lawyer's
criticism was indeed sharp and (according to the assessment of the
European Court of Human Rights) discourteous, but still a criticism –
without insulting and disparaging criticism of the court.
[16] What the
role of lawyers in judicial proceedings is and what is expected of them,
was clearly stated by the European Court of Human Rights in paragraph 173,
which reads as follows:” Regard being had to the key role of
lawyers in this field [who have the special status of intermediaries
between the public and the courts, which gives them a central position in
the administration of justice], it is legitimate to expect them to
contribute to the proper administration of justice, and thus to maintain
public confidence therein.” Therefore, it is only logical that standards
which apply to the attitude of lawyers towards courts must be stricter
than standards which apply to participants who do not professionally
participate in judicial proceedings.
[17] Which must in my opinion be
understood as “such a severe penalty as can only be a custodial sentence”
and that the application of “the alternatives which were available” (i.e.
a fine) would probably not be disproportionate. |