ECHR decision of 30 June 2020 in the case "Cimpersek v. Slovenia" (aplication No. 58512/16).
in 2016, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Slovenia.
The case successfully considered an aplication against the refusal to grant the status of a forensic expert to the applicant, who successfully passed the relevant exam and was invited to take the oath. The case violated the requirements of article 10, paragraph 1 of article 6 of the Convention for the protection of human rights and fundamental freedoms.
CIRCUMSTANCES OF THE CASE
The applicant wanted to become a forensic expert. He successfully passed the relevant exam and was invited to take the oath. However, the Ministry of justice refused to grant him this status on the grounds that he was not a suitable candidate. In its decision, the Ministry of justice referred to the content of the applicant's blog, as well as to his complaints concerning shortcomings in the work of this Ministry and in relation to the conduct of the swearing-in ceremony.
Regarding compliance with article 10 of the Convention. The applicant did not complain about the refusal of the state authorities to appoint him as a forensic expert as such, but argued that this decision was a punishment for the exercise of his right to freedom of expression guaranteed by article 10 of the Convention.
According to the case-law of the European Court of justice, if Contracting States have not chosen to undertake to recognize in the Convention or its Protocols the right of access to public service, they are nevertheless obliged not to prevent this access on grounds that fall under the protection of the Convention, in accordance with article 1 of the Convention. In this regard, a parallel can be drawn with the case-law of the European Court of justice in the application of the concept of "personal life" to employment-related cases in the context of article 8 of the Convention, including restrictions on access to public service. In accordance with article 8 of the Convention, complaints concerning the exercise of professional duties were considered to fall within the concept of "personal life" when factors related to personal life were the criteria for obtaining the relevant position, and when the contested measure was based on considerations affecting the freedom of choice of an individual in the sphere of personal life.
The Court noted the following relevant elements: before the Minister refused to appoint the applicant as a forensic expert, the applicant successfully passed the relevant examination and was invited to take the oath, the Minister justified the decision solely by referring to the content of the applicant's blog and his emails, in which the latter expressed criticism that the swearing-in ceremony had been postponed. It follows that the main elements of the decision were related to the right to freedom of expression, even if its implementation was considered by the Ministry of justice as proof that the applicant was not a suitable candidate for the position of forensic expert. The court disagreed with the government's argument that, in refusing the applicant, the Minister had taken into account the applicant's right to freedom of expression only in order to determine whether he had met the requirements for the position of a forensic expert, since the damage caused to the applicant was directly related to the exercise of key elements of this right. The refusal also had a deterrent effect on the exercise of freedom of expression by those who wanted to become forensic experts. The question of whether the measure and its associated deterrent effect were justified had to be answered on the merits. Consequently, the measure complained of concerned mainly the right to freedom of expression, rather than access to public service. The refusal to appoint the applicant as a forensic expert constituted an interference with his exercise of the right to freedom of expression guaranteed by article 10 of the Convention.
The Minister justified the refusal to appoint the applicant as a forensic expert by referring to his blog and letters, which the Minister considered offensive. The Minister did not refer to a specific blog post or paragraph of the letter, nor did he specify in any other way which statements of the applicant in his blog or letters seemed offensive to him. The lack of such justification for the Minister's decision is particularly noteworthy, since only a few days earlier the Minister had considered that there were no obstacles to the applicant's appointment as a forensic expert.
The administrative court also did not comment on the applicant's right to freedom of expression and did not consider the latter's arguments in this regard, based solely on the reasons for the contested decision of the Minister. In particular, the administrative court did not compare the applicant's right to freedom of expression guaranteed by article 10 of the Convention with the public interest allegedly pursued by the contested decision. Having regard to the above and the considerations that led the court to conclude that there was a violation of article 6, paragraph 1, of the Convention, it considers that the interference in question with the applicant's exercise of his right to freedom of expression was not accompanied by an effective and adequate judicial review.
The conduct of the candidate for the position of forensic expert could give rise to reasonable doubts as to whether he would perform the expert's work thoroughly and impartially. However, in the absence of a detailed explanation in the decisions of the Minister and the Administrative court of the reasons why the applicant's exercise of his right to freedom of expression was offensive and as such incompatible with the work of the expert, the court could not accept the Slovenian authorities ' argument that the refusal to appoint the applicant as a forensic expert was necessary to protect the morals and reputation of the forensic experts, as well as to ensure the authority and impartiality of the judiciary.
The above considerations, in particular the fact that the Minister and the Administrative court did not make any assessment of the fair balance between the competing interests involved and that the court was therefore unable to effectively verify whether the authorities of the Respondent state had applied the standards set out in its case-law on the comparison of these interests, were sufficient for the court to conclude, that, in the circumstances of the applicant's case, interference with the exercise of his right to freedom of expression was not "necessary in a democratic society".
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
The European Court also unanimously held that there had been a violation of article 6, paragraph 1, of the Convention in connection with the failure to hold an oral hearing during the proceedings before the Administrative court.
In the application of article 41 of the Convention. The court awarded the applicant EUR 15,600 in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.