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ZUGIC v. CROATIA - 3699/08 [2011] ECHR 849 (31 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/849.html
Cite as:
[2011] ECHR 849
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FORMER
FIRST SECTION
CASE OF ZUGIĆ v. CROATIA
(Application
no. 3699/08)
JUDGMENT
STRASBOURG
31
May 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Zugić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 3699/08) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Nikola Zugić (“the
applicant”), on 8 January 2008.
The
Croatian Government (“the Government”) were represented
by their Agent, Mrs Š. StaZnik.
On
28 May 2009 the President of the First Section decided to communicate
the complaints concerning access to court, freedom of expression and
lack of impartiality to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1925 and lives in Zagreb.
A. Civil proceedings
On
11 December 2000 the public utility company V.O., basing its case on
unpaid bills for water supply services, instituted enforcement
proceedings against the applicant in the Zagreb Municipal Court
(Općinski sud u Zagrebu)
seeking payment of the debt.
On
24 January 2001 the Court issued a writ of execution (rješenje
o ovrsi) ordering the applicant to pay the amounts sought.
However, since the applicant challenged the writ by objecting to it
on 19 March 2001, the court set it aside. As a consequence, the
enforcement proceedings were, pursuant to the relevant legislation,
transformed into, and resumed as, regular civil proceedings.
The
applicant, who has a formal education as a lawyer but is not an
advocate, represented himself in the
proceedings.
On
15 November 2005 judge J.G.F. of the Zagreb Municipal Court delivered
a judgment ruling for the plaintiff.
On
27 December 2005 the applicant appealed against the first instance
judgment. Section 357 of the Civil Procedure Act provides that an
appeal to a second-instance court has to be lodged through a
first instance court. Under section 358 of the same Act the
first-instance court conducts a preliminary examination of the appeal
and may declare it inadmissible if it finds that it does not meet
certain procedural requirements, for example if it finds that it was
lodged outside the statutory time-limit. It is, however, not
authorised to decide on the merits of the appeal. Therefore, the
applicant submitted his appeal intended for Zagreb County Court
(Zupanijski sud u Zagrebu) to Zagreb Municipal Court. In his
appeal he wrote, inter alia:
“After twenty months of waiting ... on 15 November
2005 the second hearing was held, at which, in substance and without
hearing [the parties] (apart from stating that the parties were
present and that they maintained their positions) the impugned
judgment was rendered.
It is indicative to mention here that the judge, before
dictating the operative provisions of the judgment, asked the
defendant whether 'he would pay this' to which the defendant replied
'where did you get that idea?' ['što Vam
pada na pamet? ']and asked whether she had examined the
case file.... The judge angrily turned sideways in her chair and
dictated the operative provisions of the judgment in the name of the
Republic of Croatia to the typist, using a funny expression [navodeći
komičan izraz] that the parties were asking for a
reasoned judgment – as if in adversarial proceedings judgments
without reasons or instruction on remedies available against them
existed. Unfortunately, the court did not record these dialogues
between the judge and the defendant in the minutes. What judicial
professionalism this is! [Kakva li je ovo
sudačka profesionalnost!]
It is evident from the above-mentioned that in these
proceedings no hearing was held in accordance with the law, which
amounts to breaches of section 354 paragraph 2 subparagraphs 6
and 11 of the Civil Procedure Act. Apart from this, from the
contested judgment or the transcripts of the hearings it cannot be
discerned whether the court took any evidence ... for which reason
the judgment could not be satisfactorily reasoned ...
Instead of referring to the evidence taken and assessing
its evidentiary value, the court immediately ... states on what basis
it arrived at the contested findings, from which it is clear that it
accepted all arguments of the plaintiff ...”
After
it carried out the preliminary examination of the appeal, Zagreb
Municipal Court forwarded it together with the case file to Zagreb
County Court.
On
3 April 2007 Judge M.P. at Zagreb County Court delivered a judgment
dismissing the applicant's appeal and upholding the first-instance
judgment.
On
24 July 2007 the applicant lodged a constitutional complaint against
the second-instance judgment. On 21 January 2010 the Constitutional
Court (Ustavni sud Republike Hrvatske) declared his
constitutional complaint inadmissible. It found that even though the
applicant relied in his constitutional complaint on the relevant
Articles of the Constitution guaranteeing the right to a fair hearing
and equality before the law, he had not substantiated his complaint
by any constitutional law arguments but had merely repeated the
arguments raised in the proceedings before the ordinary courts.
Therefore, the Constitutional Court had been unable to examine the
merits of his constitutional complaint.
B. Contempt of court proceedings
After
it had completed the preliminary examination of the applicant's
appeal of 27 December 2005 in the above proceedings, on 4 January
2006 Judge J.G.F. at Zagreb Municipal Court issued a decision whereby
it fined the applicant 500 Croatian kunas (HRK) for contempt of
court. The relevant part of the decision read as follows:
“I. The defendant Nikola Zugić
from Zagreb ... is hereby fined 500 [Croatian] kunas because in his
appeal of 27 December 2005 he insulted the court by stating: 'It is
indicative to mention here that the judge, before dictating the
operative provisions of the judgment, asked the defendant whether 'he
would pay this', to which the defendant replied 'where did you get
that idea?' and asked whether she had examined the case file.... The
judge angrily turned sideways in her chair and dictated the operative
provisions of the judgment in the name of the Republic of Croatia to
the typist, using a funny expression that the parties were asking for
a reasoned judgment – as if in adversarial proceedings
judgments without reasons or instruction on remedies available
against them existed. Unfortunately, the court did not record these
dialogues between the judge and the defendant in the minutes. What
judicial professionalism this is!'
...
In the appeal of 27 December 2005 the defendant,
insulted the court by, inter alia, [using] the words
quoted in the operative provisions of this decision.
It would follow from the quoted text that during the
main hearing the court communicated with the parties in an improper
way, that the judge behaved improperly and that she does not know the
law. All this constitutes contempt of court and the statements quoted
exceed the limits of necessary respect for the court, even attempting
to call into question the knowledge and expertise of the judge at
issue, which is an impermissible way for the parties to communicate
with the court because it represents a direct insult to the judge as
a person, implying that she is ignorant and incompetent to exercise
the duty of a judge.
When imposing the fine the court took into account the
fact that the defendant insulted not only the court as an
institution, but also the judge as a person, on account of which he
had to be fined pursuant to section 110 taken in conjunction with
section 10 of the [Civil Procedure Act].”
On
16 January 2006 the applicant lodged an appeal against that decision
arguing, inter alia, that his statements had been arbitrarily
interpreted by the first-instance court, that they had not been
insulting, and that he had not had any intention of insulting anyone.
By
a decision of 3 April 2007 Judge M.P. at Zagreb County Court
dismissed the applicant's appeal and upheld the first-instance
decision. The relevant part of that decision read as follows:
“In this court's view, the finding of the
first-instance court that in his appeal the defendant insulted the
court by making the above statements is correct ... It is to be noted
that by the statements made in the appeal the defendant demonstrated
disrespect for the court, which undoubtedly represents an improper
way for the parties to communicate with the court, and exceeds the
limits of a civilised and fair relationship with the court as an
institution of a society.”
On
24 July 2007 the applicant lodged a constitutional complaint against
the second-instance decision. On 25 October 2007 the Constitutional
Court declared his constitutional complaint inadmissible on the
ground that the contested decision did not concern the merits of the
case and as such was not susceptible to constitutional review.
On
21 May 2008 the Zagreb Municipal Court of its own motion issued a
writ of execution by garnishment of a part of the applicant's pension
with a view to collecting the above fine. The applicant appealed and
the proceedings are currently pending before the Zagreb County Court.
II. RELEVANT DOMESTIC LAW
A. The Constitutional Court Act
The
relevant part of the 1999 Constitutional Act on the Constitutional
Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu
Republike Hrvatske, Official Gazette no. 99/1999 of 29 September
1999 – “the Constitutional Court Act”), as amended
by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama
Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official
Gazette no. 29/2002 of 22 March 2002), which entered into force
on 15 March 2002, reads as follows:
Section 62
“1. Anyone may lodge a constitutional
complaint with the Constitutional Court if he or she deems that the
decision of a state authority, local or regional government, or a
legal person invested with public authority, on his or her rights or
obligations, or as regards suspicion or accusation of a criminal
offence, has violated his or her human rights or fundamental
freedoms, or the right to local or regional government, guaranteed by
the Constitution ('constitutional right')...
2. If another legal remedy is available in
respect of the violation of the constitutional rights [complained
of], the constitutional complaint may be lodged only after this
remedy has been exhausted.
3. In matters in which an administrative
action or, in civil and non-contentious proceedings, an appeal on
points of law [revizija] is available, remedies shall be
considered exhausted only after a decision on these legal remedies
has been given.”
B. The Civil Procedure Act
The
relevant part of the 1977 Civil Procedure Act (Zakon
o parničnom postupku, Official
Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977,
36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989,
20/1990, 27/1990 and 35/1991 and Official Gazette of the Republic of
Croatia nos. 53/1991, 91/1992, 112/1999, 117/2003 and 84/2008 –
“the Civil Procedure Act”), as in force at the relevant
time, read as follows:
Section 10
“1. ...
2. Unless otherwise provided by this Act,
the court shall fine a natural person between 500 and 10,000
[Croatian] kunas, or a legal entity between 2,500 and 50,000
[Croatian] kunas, if they commit a serious abuse of the rights they
have in the proceedings.
3. The fine referred to in paragraph (2) of
this section may be imposed on a party and an intervener, as well as
on their representative if he or she is responsible for the abuse of
rights.
4. The fine shall be imposed by the
first-instance court. Outside the main hearing the fine shall be
imposed by a single judge or the presiding judge.
5. ...
6. ...
7. The imposed fine shall be collected
automatically [ex officio] as a pecuniary debt in accordance
with the rules of enforcement procedure.”
Section 110
“1. The first-instance court shall fine
a natural person between 500 and 5,000 [Croatian] kunas, or a legal
person between 2,000 and 20,000 [Croatian] kunas, if in his, her or
its submission they have insulted the court, a party or other
participant in the proceedings. The fine may also be imposed on a
representative of a party or an intervener if he or she is
responsible for insulting the court.
2. Provisions of section 10 of this Act
shall apply mutatis mutandis to cases referred to in paragraph
(1) of this section.
3. Provisions of preceding paragraphs of
this section shall apply in all cases where the court imposes a fine
pursuant to the provisions of this Act, unless otherwise expressly
provided for particular cases.”
C. The 2008 Amendments to the 1977 Civil Procedure Act
The
2008 Amendments to the 1977 Civil Procedure Act (Zakon
o izmjenama i dopunama Zakona o parničnom postupku,
Official Gazette no. 84/2008 and 123/2008 (corrigendum), which
entered into force on 1 October 2008, amended, inter alia,
paragraph 7 and added five new paragraphs (8 to 12) to section 10 of
the 1977 Civil Procedure Act. The relevant part of the amended
section 10 reads as follows:
“(7) If the person fined ... does not pay the fine
within the fixed time-limit ... the court shall ... inform the [Tax
Administration] of the unpaid fine with a view to collecting the fine
[through tax enforcement proceedings] ...
...
(12)... If within a year of service of ... a decision
referred to in paragraph 2 of this section [the Tax Administration]
does not succeed in collecting the fine, [it] shall inform ... the
court [thereof], whereupon the fine shall be converted into a prison
sentence in accordance with the rules of criminal law on converting
fines into prison sentences, on which the court that imposed the fine
shall issue a decision ....”
Section
52(1) of the 2008 Amendments provided that they were applicable to
all pending proceedings unless otherwise provided in that section.
D. The Criminal Code
Article
52(3) of the Criminal Code (Kazneni zakon, Official Gazette
no. 110/97 with subsequent amendments) reads as follows:
“A fine shall be converted into a prison sentence
so that one [average] daily income is converted into one day of
imprisonment, where the maximum duration of imprisonment into which
the fine was converted shall not exceed twelve months.”
According
to the practice of domestic courts, before taking a decision to
convert the fine into a prison sentence a court has to summon and
hear the person fined. An appeal always lies against such a decision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained that the imposition of a fine for contempt of
court, which he considered unjustified in the circumstances, had
violated his freedom of expression. He relied on Article 10 of the
Convention, which in its relevant part reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. 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, ... for maintaining
the authority and impartiality of the judiciary.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The arguments of the parties
(a) The Government
The
Government admitted that imposing a fine for contempt of court
amounted to an interference with the applicant's freedom of speech.
However, they argued that the interference had been in accordance
with the law, pursued a legitimate aim and had been necessary in a
democratic society. The decision to fine the applicant had been based
on section 110 of the Civil Procedure Act and sought to maintain the
authority of the judiciary.
The
Government also considered that the interference had been
proportionate to its aim for the following reasons.
They
first emphasised that courts were institutions with the purpose of
settling disputes in a civilised manner. This required that all
parties behaved appropriately in proceedings, especially in their
communication with one another, and that they respected the
institution of the court. Also, a general principle of civil
proceedings was that parties needed to use their rights in the
proceedings conscientiously, that is, without abuse.
The
Government further stressed that the applicant in the present case
was a lawyer, of whom it was expected, having regard to his
profession and experience, that he would be familiar with the rules
of conduct in communication with the court.
The
Government then argued that the present case was considerably
different from the Kyprianou case (see Kyprianou v. Cyprus,
no. 73797/01, § 31, 27 January 2004). In that case,
the applicant had committed contempt of court at the hearing,
immediately after the events which provoked his anger and discontent
had taken place, and therefore his reaction had been emotional. In
the instant case, the applicant had expressed his discontent in
writing, that is after the events which had provoked his discontent
had occurred.
The
Government submitted that the applicant could have responded in a
different manner to express his dissatisfaction. For example, he
could have asked for his remarks to be recorded in the minutes of the
hearing, or that the judge appointed to hear the case be replaced.
Moreover, the applicant, as a lawyer, could have presented his
arguments set out in his appeal, as well as his discontent, in an
appropriate and professional manner. It was evident that the
applicant's right to express his disagreement with the court
decisions, the manner in which the proceedings had been conducted,
and the conduct of the judge appointed to hear the case had not been
restricted. The only issue in dispute was the manner in which the
applicant had done so, that is, by inappropriate communication in
contempt of court.
Furthermore,
the Government noted, the applicant had been entitled to appeal
against the decision by which he had been fined. As opposed to the
Kyprianou case, the applicant's appeal postponed the
enforcement.
Lastly,
the Government averred that there was a significant difference
compared to the Kyprianou case where, in spite of less severe
alternatives, the applicant had received a prison sentence, which the
Court assessed as disproportional. However, in the present case the
applicant had received the lowest fine prescribed for the contempt of
court.
In
the light of the foregoing, the Government considered that the
interference in the present case had been “necessary in a
democratic society” and therefore had not contravened Article
10 of the Convention.
(b) The applicant
The
applicant first cited the old Latin proverb which says it is
unbecoming to a judge to be angry (Iudicem irasci dedecet or
Irasci iudicem non decet).
He further
submitted that his remarks had not been insulting, and that he had
not had any intention of insulting either Judge J.G.F. or the court
as an institution. Rather, his statements had been arbitrarily
interpreted by the domestic courts. In particular, he had never said,
as implied by the first instance court, that Judge J.G.F. was
incompetent or did not know the law.
In
his view he had been fined for speaking the truth, which had been his
duty as a party to court proceedings. He also submitted that Judge
J.G.F. was in no way liable for humiliating and disparaging him
throughout the proceedings, whereas he had received a hefty fine for
the slightest criticism of her work.
Furthermore,
in the applicant's view, the judge who had felt personally offended
by his remarks had fined him for contempt of court even though it had
been clear that he had only criticised her performance in a
particular case and not the court as an institution.
2. The Court's assessment
The
Court reiterates that Article 10 is applicable not only to
“information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb (see, for example,
Kubli v. Switzerland (dec.), no. 50364/99, 21 February
2002). Furthermore, freedom of expression protects not only the
substance of the ideas and information expressed but also the form in
which they are conveyed (see, for example, Mariapori v. Finland,
no. 37751/07, § 62, 6 July 2010; Kyprianou, cited above,
§ 174). The Court therefore considers
that fining the applicant for contempt of court in the present case
amounted to an interference with his freedom of expression, as
guaranteed by Article 10 § 1 of the Convention.
The
Court further reiterates in this connection that this Article does
not guarantee wholly unrestricted freedom of expression and that the
exercise of this freedom carries with it “duties and
responsibilities” (see, for example, Europapress
Holding d.o.o. v. Croatia, no.
25333/06, § 58, 22 October 2009). As set forth in
Article 10 § 2, this freedom is subject to exceptions, which
must, however, be construed strictly, and the need for any
restrictions must be established convincingly (see, for example,
Skałka v. Poland, no. 43425/98, §
32, 27 May 2003, and Kubli, cited above). In particular, the
parties' freedom of expression in the courtroom is not unlimited and
certain interests, such as the authority of the judiciary, are
important enough to justify restrictions on this freedom (see
Mariapori, loc. cit.).
The
Court finds in this regard that in the present case the interference
with the applicant's freedom of expression was prescribed by law, in
particular section 110(1) of the Civil Procedure Act, and that it
pursued a legitimate aim of maintaining the authority of the
judiciary within the meaning of Article 10 § 2 of the
Convention. Therefore, the only question for the Court to determine
is whether that interference was “necessary in a democratic
society”. In so doing the Court must ascertain whether on the
facts of the case a fair balance was 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.
The
test of “necessity in a democratic society” requires the
Court to determine whether the interference complained of
corresponded to a “pressing social need”. The Contracting
States have a certain margin of appreciation in assessing whether
such a need exists, but it goes hand in hand with European
supervision, embracing both the legislation and the decisions
applying it, even those delivered by an independent court. The Court
is therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, for example, Kyprianou, cited
above, § 170; and Skałka, cited above, § 33, 27
May 2003).
In exercising its supervisory jurisdiction, the Court
must look at the impugned interference in the light of the case as a
whole, including the content of the remarks held against the
applicant and the context in which they were made. In particular, it
must determine whether the interference in question was
“proportionate to the legitimate aims pursued” and
whether the reasons adduced by the national authorities to justify it
are “relevant and sufficient”. In doing so, the Court has
to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they based themselves on an acceptable assessment
of the relevant facts (see, for example, Nikula v. Finland,
no. 31611/96, § 44, ECHR 2002 II, and Skałka,
cited above, § 35).
The
phrase “authority of the judiciary” includes, in
particular, the notion that the courts are, and are accepted by the
public at large as being, the proper forum for the ascertainment of
legal rights and obligations and the settlement of disputes relative
thereto; further, that the public at large have respect for and
confidence in the courts' capacity to fulfil that function (see
Sunday Times v. the United Kingdom (no. 1), 26 April 1979,
§ 55, Series A no. 30). The work of the courts, which are
the guarantors of justice and which have a fundamental role in a
State governed by the rule of law, needs to enjoy public confidence.
It should therefore be protected against unfounded attacks. However,
the courts, as with all other public institutions, are not immune
from criticism and scrutiny (see Skałka, cited
above, § 34). Therefore, while parties are certainly entitled to
comment on the administration of justice in order to protect their
rights, their criticism must not overstep certain bounds (see Saday
v. Turkey, no. 32458/96, § 43, 30 March 2006). In
particular, a clear distinction must be made between criticism and
insult. If the sole intent of any form of expression is to insult a
court, or members of that court, an appropriate sanction would not,
in principle, constitute a violation of Article 10 of the Convention
(see Skałka, loc.cit).
In
the present case, in its decision of 4 January 2006 the Zagreb
Municipal Court found that the applicant's statements made in his
appeal of 27 December 2005 were insulting both to the Judge
J.G.F. and the court as an institution (see paragraph 13 above). This
finding was endorsed by the Zagreb County Court in its decision of 3
April 2007 (see paragraph 15 above).
The
Court sees no reason to hold otherwise as the present case can be
compared to those in which the Convention organs found that the
applicants' statements had been insulting (see, for example, Saday,
cited above, in which the accused described the Turkish judiciary
as “torturers in robes”; W.R. v. Austria, no.
26602/95, Commission decision of 30 June 1997, in which counsel had
described the opinion of a judge as “ridiculous”; and
Mahler v. Germany, no. 29045/95, Commission decision of 14
January 1998, where counsel had asserted that the prosecutor had
drafted the bill of indictment “in a state of complete
intoxication”). In the instant case the impugned statements,
framed in belittling and impertinent terms, were not only a criticism
of the first-instance judgment of 15 November 2005 and the way Judge
J.G.F. had conducted the proceedings, but also, as found by the
domestic courts, implied that she was ignorant and incompetent. There
is nothing to suggest that the applicant could not have raised the
substance of his criticism without using the impugned language (see
A. v. Finland (dec.), no. 44998/98, 8 January 2004).
Furthermore,
in assessing the proportionality of the interference, the nature and
severity of the sanction imposed are also factors to be taken into
account (see, for example, Keller v. Hungary (dec.), no.
33352/02, 4 April 2006; and Kwiecień v. Poland, no.
51744/99, § 56, ECHR 2007 I). In this respect, the
Court notes that the applicant in the present case was fined HRK 500,
that is, the minimum penalty under section 110(1) of the Civil
Procedure Act (see paragraphs 13 and 19 above).
In
the light of the foregoing, the Court considers that the reasons
given by the domestic courts in support of their decisions were
“relevant and sufficient” and that the fine imposed on
the applicant was not disproportionate to the legitimate aim pursued,
namely, maintaining the authority of the judiciary. Therefore, the
interference with the applicant's freedom of expression was
“necessary in a democratic society”.
There
has accordingly been no violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO COURT
The
applicant further complained that his right of access to court had
been breached in that the Constitutional Court had never decided on
his (first) constitutional complaint (see paragraph 12 above) lodged
in the above civil proceedings on 24 July 2007 against the
Zagreb County Court judgment of 3 April 2007. He relied on
Article 6 § 1 of the Convention, which in its relevant part
reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [an] impartial tribunal
established by law.”
The
Government submitted that the Constitutional Court had given its
decision on the applicant's constitutional complaint on 21 January
2010, and provided a copy thereof.
The
applicant did not contest the Government's submissions.
In
the light of the evidence submitted by the Government confirming that
the Constitutional Court did eventually decide on the applicant's
constitutional complaint, and given that the applicant did not
dispute their submissions nor reformulate his complaint, the Court
considers that this complaint is inadmissible under Article 35 § 3
(a) as manifestly ill-founded and must be rejected pursuant to
Article 35 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LACK OF IMPARTIALITY
The
applicant further complained, also under Article 6 § 1 of the
Convention, that Zagreb Municipal Court lacked impartiality because
the same judge who had felt personally offended by remarks made in
his appeal of 27 December 2005 had fined him for contempt of court.
The
Government contested that argument.
A. Admissibility
The
Government disputed the admissibility of this complaint, arguing that
Article 6 § 1 of the Convention was not applicable to
the contempt of court proceedings against the applicant.
1. The arguments of the parties
The
Government argued that Article 6 was not applicable in this case,
neither under its “civil law” head nor under its
“criminal law” head.
In
their view, fining the applicant for contempt of court did not give
rise to a “dispute” over, nor did it involve
determination of, his civil rights or obligations.
Likewise, the case did not fall under the “criminal
head” of Article 6 either. Relying on the Court's case law, in
particular the judgments in the Ravnsborg and Putz
cases (see Ravnsborg v. Sweden, 23 March 1994, Series A no.
283 B, and Putz v. Austria, 22 February 1996, Reports
of Judgments and Decisions 1996 I), the Government averred
that the measures ordered by courts under the rules sanctioning
disorderly conduct in court proceedings did not fall under Article 6
of the Convention, since they were akin to exercise of disciplinary
powers.
In
particular the Government submitted that the applicant's case did not
meet any of the criteria developed by the Court in cases of contempt
of court, namely, the legal classification of the offence in domestic
law, the nature of the offence, and the nature and severity of the
penalty. Firstly, imposing a fine for contempt of court was
prescribed by the Civil Procedure Act and was possible exclusively
within the context of civil proceedings. This fine was not correlated
with the fines imposed under the Criminal Code. Secondly, the
contempt of court, for which the applicant was fined, did not
constitute a criminal offence under Croatian law, nor was the
perpetrator's guilt being determined according to the criteria of
criminal law. Also, the purpose of imposing a fine for contempt of
court was not the same as the purpose of imposing sanctions under the
Criminal Code, because it was a disciplinary measure against
disorderly conduct in court proceedings. Thirdly, the law stipulated
that the fine imposed on the applicant could range from HRK 500 to
HRK 5,000. The applicant had been fined with the lowest possible fine
of HRK 500. The fine was to be enforced in accordance with the
provisions of the Enforcement Act, and the possibility of converting
the fine into a prison sentence was not provided. This sanction was
not being entered into any records, and the applicant, apart from
paying the fine, had not suffered any other consequences.
Having
regard to the above-mentioned, the Government considered that Article
6 was not applicable in the present case.
The
applicant did not make any specific comments on this issue. However,
it follows from his submissions that he considered Article 6 to be
applicable.
2. The Court's assessment
The Court considers that it first has to examine
whether the fine for contempt of court imposed on the applicant by
the Zagreb Municipal Court amounted to a determination of any of the
applicant's civil rights or obligations. It reiterates in this
connection that such fines aim to ensure the proper administration of
justice and therefore have the characteristics of a sanction not
involving the determination of civil rights or obligations (see
Veriter v. France, no. 25308/94, Commission decision of
2 September 1996, Decisions and Reports (DR) 86-B, pp. 96 and
101-103).
The
next question is whether the fine for contempt of court imposed on
the applicant constituted the determination of a criminal charge
against him. The Court reiterates that the question whether the
criminal head of Article 6 applies to the contempt of court
proceedings has to be assessed in the light of three alternative
criteria laid down by the Court in the Engel case (see Engel
and Others v. the Netherlands, 8 June 1976, § 82, Series A
no. 22): (a) the classification of the offence under the domestic
law, (b) the nature of the offence and (c) the nature and degree of
severity of the penalty that the person concerned risks incurring
(see Ravnsborg, cited above, § 30; Putz, cited
above, § 31; T. v. Austria, no. 27783/95, §
61, ECHR 2000 XI; Kubli, cited above; Jurík v.
Slovakia (dec.), no. 50237/99, 18 March 2003; Kyprianou,
cited above, § 31; Zaicevs v. Latvia, no. 65022/01,
§ 31, ECHR 2007 IX (extracts); and Veriter, cited
above).
As
to the legal classification of the offence under the domestic law,
the Court notes that the behaviour for which a fine was imposed on
the applicant is not formally classified as a criminal offence under
Croatian law. This follows from the fact that the fine imposed on the
applicant was based on section 110(1) of the Civil Procedure Act, and
not on provisions of the Criminal Code, that such a fine is not
entered in the criminal record and that its amount does not depend on
income as in criminal law (see, mutatis mutandis, Ravnsborg,
cited above, § 33; Putz, cited above, § 32;
Kubli, cited above; R.T. v. Austria, no. 27783/95,
Commission's report of 8 September 1999, unreported, § 78;
and Veriter, cited above, pp. 101 102).
As
to the nature of the offence in question, the Court reiterates that
rules enabling a court to sanction disorderly conduct in proceedings
before it are a common feature of legal systems of the Contracting
States. Such rules and sanctions derive from the indispensable power
of a court to ensure the proper and orderly functioning of its own
proceedings. Measures ordered by courts under such rules are more
akin to the exercise of disciplinary powers than to the imposition of
a punishment for commission of a criminal offence. The kind of
proscribed conduct for which the applicant in the present case was
fined in principle falls outside the ambit of Article 6 of the
Convention. The courts may need to respond to such conduct even if it
is neither necessary nor practicable to bring a criminal charge
against the person concerned (see Ravnsborg, cited above,
§ 34; Putz, cited above, § 33; Kubli,
cited above; Jurík, cited above; R.T. v. Austria,
cited above, § 79; and Veriter, cited above, p. 102). The
Court sees no reason for assessing the fine imposed on the applicant
in a different manner.
As to the nature and severity of the penalty, the
Court first reiterates that notwithstanding the non-criminal
character of the proscribed misconduct, the nature and degree of
severity of the penalty that the person concerned risked incurring
may bring the matter into the category of “criminal”
matters (see Ravnsborg, cited above, § 35; Putz,
cited above, § 34; Kubli, cited above; Balyuk v.
Ukraine (dec.), no. 17696/02, 6 September 2005; and Veriter,
cited above, p. 102).
The applicant in the present case was fined HRK 500,
the minimum penalty, whereas the maximum penalty which he risked
incurring under section 110(1) of the Civil Procedure Act amounted to
HRK 5,000 (see paragraph 19 above). In the Court's view, neither the
relatively small fine imposed nor the possible amount of the fine
attain a level that would make it a “criminal” sanction
(see, mutatis mutandis, Ravnsborg, loc. cit., § 35;
Kubli, cited above). As already noted above (see paragraph
65), unlike ordinary fines, the one at issue is not entered in the
criminal record (see, mutatis mutandis, Ravnsborg, loc.
cit., § 35; Putz, cited above, § 37;
Kubli, cited above; and Veriter, cited above, p. 102).
Furthermore, section 10(7) of the Civil Procedure Act, as in force at
the relevant time, did not provide for the possibility of converting
a fine imposed under section 110(1) of the same Act into a prison
term (see paragraph 19 above, and mutatis mutandis, Jurík,
cited above; and Veriter, cited above, p. 102). This
possibility was introduced with the entry into force of the
2008 Amendments to the Civil Procedure Act on 1 October 2008
(see paragraph 20 above). However, even then the fine was not
convertible into imprisonment on default (see, mutatis mutandis,
Balyuk, cited above) since it could be converted into a prison
sentence only in limited circumstances, namely if the fine was not
paid and the Tax Authority could not collect it in tax enforcement
proceedings (see paragraph 20 above, and mutatis mutandis,
Putz, cited above, § 37, and Kubli, cited
above). In this connection the Court notes that in the applicant's
case it is most unlikely that the conditions for converting the fine
into a prison sentence would ever materialise, because the
authorities, with a view to collecting the fine, issued a writ of
execution by garnishment of a part of the applicant's pension (see
paragraph 17 above), that is, a stable source of income certainly
sufficient to cover the amount of the fine. Lastly, according to the
practice of domestic courts, a decision to convert the fine into a
prison sentence could only be taken after hearing the applicant who
would also have the right to appeal against such a decision (see
paragraph 23 above, and Ravnsborg, cited above, § 35;
see also, by converse implication, T. v. Austria, cited above,
§ 66).
Having
regard to these factors in the light of the disciplinary nature of
the offence (see paragraph 66 above), the Court considers that the
penalty the applicant risked incurring was not sufficiently severe to
bring the “criminal head” of Article 6 § 1 of the
Convention into play (see, mutatis mutandis, Brown v. the
United Kingdom (dec.), no. 38644/97, 24 November 1998).
In
view of all the above considerations, the Court finds that the
proceedings leading to the imposition of the above fine on the
applicant concerned neither determination of “civil rights or
obligations” nor “criminal charge” within the
meaning of Article 6 § 1 of the Convention. Accordingly, the
guarantees of that provision do not extend to those proceedings.
It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected pursuant to Article
35 § 4.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Articles 6 § 1 and 14 of the
Convention about the outcome of the above civil proceedings and that
they had been unfair. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
As regards the applicant's complaint under Article 6 §
1 of the Convention, the Court notes that he complained about the
outcome of the proceedings, which, unless it was arbitrary, the Court
is unable to examine under that Article. Moreover, there is no
evidence to suggest that the courts lacked impartiality or that the
proceedings were otherwise unfair. In the light of all the material
in its possession, the Court considers that in the present case the
applicant was able to submit his arguments before courts which
offered the guarantees set forth in Article 6 § 1 of
the Convention and which addressed those arguments in decisions that
were duly reasoned and not arbitrary.
As
regards the applicant's complaint under Article 14 of the Convention,
the Court considers that it is wholly unsubstantiated.
It
follows that these complaints are inadmissible under
Article 35 § 3 (a) as manifestly ill-founded
and must be rejected pursuant to Article 35 § 4
of the Convention.
FOR THESE REASONS, THE COURT
Declares unanimously the complaint concerning
freedom of expression admissible and the remainder of the application
inadmissible;
Holds by four votes to three that there has been
no violation of Article 10 of the Convention.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Spielmann, joined by Judges Hajiyev and Nicolaou is annexed to this
judgment.
A.K.
S.N.
DISSENTING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGES
HAJIYEV AND NICOLAOU
I am
unable to agree with the majority view that there has been no
violation of Article 10 of the Convention.
This
is a rather unusual case in that the alleged contempt of court stems
from the wording of a procedural document.
In my
view, nothing in the wording of the appeal went beyond the acceptable
limits.
Admittedly,
the exercise of the right to freedom of expression may be subject to
limitations necessary for maintaining the authority of the judiciary.
The case-law cited in paragraph 47 concerns instances where
applicants' statements have undoubtedly been grossly insulting.
Judges in those cases had been described as “torturers in
robes” and as “ridiculous”, and a prosecutor as
having acted “in a state of complete intoxication.” It
goes without saying that such statements cannot and should not be
protected by Article 10 of the Convention.
In
the case at hand, the applicant only described, albeit in strong
words, what had happened during the hearing. His misgivings
concerning the judge's attitude during the hearing were part and
parcel of his grounds of appeal and were characterised in legal terms
under section 354, paragraph 2, subparagraphs 6 and 11, of the Civil
Procedure Act.
In
paragraph 42 of the judgment, the Court duly reiterates that it “must
ascertain whether on the facts of the case a fair balance was 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”. The Court rightly adds in paragraph 44:
“In exercising its supervisory jurisdiction, the
Court must look at the impugned interference in the light of the case
as a whole, including the content of the remarks held against the
applicant and the context in which they were made ....[T]he Court has
to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they based themselves on an acceptable
assessment of the relevant facts” (emphasis added).
I
disagree with the assessment of the facts.
The
applicant's statements in his appeal fell short of being insulting
and hence the reasons given by the domestic courts in support of
their decisions were, in my view, not “relevant and
sufficient”.
