Case Summary and Outcome

The Constitutional Court of Slovenia rejected a constitutional complaint and upheld a fine imposed on a lawyer for insulting court-appointed experts. The case originated from a criminal trial where the lawyer, acting for the defence, used highly derogatory language to describe the work and professional competence of psychiatric and psychological experts. The Court found that while a defence lawyer’s freedom of expression is broad and serves the crucial function of ensuring a fair trial, it is not unlimited. It held that the lawyer’s statements, which constituted personal attacks rather than reasoned criticism, exceeded the acceptable limits of professional argumentation. The Court concluded that the fine was a necessary and proportionate measure to protect the authority of the judiciary and the dignity of its appointed experts, and that it did not violate the lawyer’s constitutional right to freedom of expression.

Facts

The complainant, Dr Peter Čeferin, is a lawyer who was defending a person accused of murder in proceedings before the District Court in Ljubljana. During the main hearing on 12 March 2004, while cross-examining a court-appointed psychiatric expert, Čeferin challenged the credibility of the expert opinions. He described them as “nonsensical rambling,” “expert’s fabrications,” and evidence of the “professional weakness of the experts.” He stated that the psychiatrist used psychological methods “which he absolutely does not understand” and that the psychologist used “outdated psychological methods from the Stone Age of psychology and an unscientific psychodynamic concept.”

On 19 March 2004, the District Court fined Čeferin 150,000 Slovenian Tolars (SIT) for contempt of court pursuant to Article 78(1) of the Criminal Procedure Act (ZKP). This article allows a court to fine involved parties if they “insult the court or anyone participating in the proceedings in a motion or speech.” The court found that Čeferin’s statements were insulting value judgments that disparaged the experts’ professionalism and human dignity, and were unworthy of the legal profession.

Čeferin appealed to the Higher Court in Ljubljana, arguing that his statements were legitimate criticism made in the course of defending his client and that the fine had a chilling effect on the right to defence. On 3 February 2005, the Higher Court dismissed the appeal. It held that the statements attacked the honour and reputation of the experts, showed contempt for their human dignity, and that the court had a duty to protect its authority and the personal dignity of participants under Article 78(1) ZKP.

Čeferin then filed a constitutional complaint on 31 March 2005, alleging a violation of his right to freedom of expression under Article 39 of the Slovenian Constitution and Article 10 of the European Convention on Human Rights (ECHR). He linked this violation to his client’s right to a defence under Article 29 of the Constitution and Article 6 ECHR.

Decision Overview

President Jože Tratnik delivered the judgment for the Constitutional Court of Slovenia. The main issue before the Court was whether imposing a fine on a lawyer for criticising court experts in criminal proceedings constituted a disproportionate interference with his right to freedom of expression.

The complainant argued that his statements were justified, reasoned opinions on the experts’ professional competence, made to ensure an effective defence for his client facing a severe murder charge. He contended that such expression should be strongly protected and that any interference was unnecessary in a democratic society. He relied on the European Court of Human Rights (ECtHR) judgment in Nikula v. Finland, arguing that freedom of expression is an essential part of the right to a defence. He also suggested that the experts should have pursued a private defamation lawsuit under the Criminal Code instead, which would have been a less severe interference.

The Court assessed the complaint under Article 39 of the Constitution, which guarantees freedom of expression, noting that this right also encompasses the protection of Article 10 ECHR. It acknowledged that a lawyer’s freedom of expression when acting as defence counsel is a function of the defendant’s right to a defence under Article 29 of the Constitution. The Court stated that this right is fundamental and that courts must be careful not to interfere with it by punishing lawyers, as this could undermine a fair trial.

However, the Court emphasized that a lawyer’s freedom of expression in court is not absolute. It is constrained by the formal nature of proceedings, professional ethics, and the need to maintain the authority and reputation of the judiciary. The Court held: “An attorney may put forward strong and sharp criticism, but in safeguarding the interests of his client his argumentation must remain within the bounds of reasonable reasoning; there is no place for insults charged with emotional overtones.” [Para. 12] It further noted that the threshold of tolerance is higher when defending a client in a serious case, but a lawyer “must not exceed the extreme limits of that tolerance. [And] [i]f he does, it is appropriate for the court to protect other values, namely, public confidence in the judiciary and the reputation and authority of the courts, which ensure that the public maintains respect for the judiciary and trust in its ability to fulfil its role in a state governed by the rule of law.” [para. 12]

The Court found that Čeferin’s statements went beyond this limit. It agreed with the lower courts that the comments were not mere harsh criticism but constituted “offensive value judgments” and a “personal disqualification of the experts as professionals” that exceeded reasonable argumentation. [para. 14] The Court also rejected the argument that a private lawsuit was a more appropriate remedy, clarifying that the purpose of Article 78 ZKP is not to protect individual experts but to safeguard the reputation and authority of the judiciary as a whole, of which court experts are an integral part as impartial assistants to the court.

In its reasoning, the Court referenced its own prior decisions (U-I-145/03, Up-150/03) and several ECtHR judgments, including Nikula v. Finland, to balance the competing interests of free expression and maintaining judicial authority.

The Constitutional Court concluded that the lower courts had not disproportionately interfered with the complainant’s right to freedom of expression. The fine was a legitimate and proportionate measure to protect the authority of the judiciary and the proper administration of justice. The constitutional complaint was therefore dismissed as unfounded.