The ECHR found a violation of the requirements of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 13 of the Convention for the Protection of Human R Сведения: 2018-09-04 11:31:21

The ECHR judgment of 16 January 2018 in the case "Ceferin (Ceferin) v. Slovenia" (application No. 40975/08).

In 2008, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Slovenia.

The applicant's complaint that the fines applied to the applicant for contempt of court was successfully interfered with his right to freedom of expression. The case involved violation of the requirements of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


The applicant acted as an advocate for the defense in the criminal proceedings. He was fined for contempt of court in two separate trials, which was expressed in the criticism of expert witnesses and the prosecutor as part of the lawyer's oral and written observations. During the conventional proceedings, the applicant complained of a violation of his right to freedom of expression.


ISSUES OF LAW


Compliance with Article 13 of the Convention. The fines applied to the applicant for contempt of court were interference with his right to freedom of expression, which was provided by law (part one of Article 78 of the Code of Criminal Procedure) and pursued the legitimate aim of maintaining the authority of the judiciary and protecting the reputation and rights of trial participants.

As to whether the interference with the applicant's right was necessary in a democratic society, the Court held that the domestic courts did not submit appropriate and sufficient reasons to justify the restriction of the applicant's right to freedom of expression and therefore were not achieved on the basis of the criterion established in case-law Of the European Court of Justice, an equitable balance between, on the one hand, the need to protect the powers of the judiciary and the need to protect the applicant's right to expression eniya, on the other hand.

In formulating this conclusion, the Court takes into account the following factors.

(a) The applicant made contested statements in the context of a trial in which he acted as the lawyer of a person accused of committing three murders. Thus, his remarks were made during the discussion, where the rights of his client, of course, needed to be protected by all means. Moreover, the applicant's statements were made only in the courtroom, in contrast to the criticism of the judge, for example, voiced in the media. In both procedures for charging contempt of court, the domestic courts did not consider the context and form in which the applicant's comments were made.

(b) Apparently, the domestic courts did not provide more protection to the appealed statements aimed at the actions of the prosecutor. Nonetheless, the rule that the limits of acceptable criticism may in some cases be broader in relation to public civil servants than for private persons, a fortiori, has been applied to criticism by the prosecutor to the accused. Similarly, taking into account the fact that they acted in their official capacity, and considering the potential impact of their opinions on the outcome of the criminal trial, the expert witnesses should have been tolerant of criticizing their performance of their duties.

(c) The impugned statements can not be construed as causeless personal attacks or regarded as pursuing the sole purpose of offending an expert, prosecutor or court. They also can not be considered a propri unreasonable. In particular, they were based on the facts put forward by the applicant in order to undermine the credibility of experts and prevent the disclosure of research results on the lie detector. Whether these facts were sufficient to substantiate the statements complained of - this particular issue should have been properly considered by the domestic courts.

(d) Most of the complaints complained of were made verbally, but nothing indicated that the sitting judges reacted to criticism. Moreover, it is striking that the applicant was not given any opportunity to explain his actions or protect himself before he was fined. In this connection, the Court emphasized the duty of the courts and the presiding judge to prosecute in such a way as to ensure the proper conduct of the parties and, above all, the fairness of the trial, and not to consider in subsequent court hearings the appropriateness of the statements of the party to the trial expressed in the courtroom.


DECISION


In the case there was a violation of the requirements of Article 10 of the Convention (adopted by six votes "for" at one - "against").


COMPENSATION


In the application of Article 41 of the Convention, the Court awarded the applicant 2,400 and 800 euros in respect of non-pecuniary damage and pecuniary damage, respectively.

 

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