Artistic Expression, Defamation / Reputation, Privacy, Data Protection and Retention
The Case of Mephisto
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Committee of the Fourth Section of the European Court of Human Rights (“ECtHR”/”Court”) found violation of the freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”) of the applicant (a lawyer). The applicant was fined by the domestic courts for insulting an appellate court by narrating an old joke about a professor and his student and comparing the lower-instance court with that professor. The ECtHR opined that this language, albeit sarcastic or caustic, still enjoyed protection under Article 10. Also, the impugned comments were made in the appeal, so they were not publicly disseminated and they aimed at the manner of the court’s conduct not on a judge’s personality. Hence, the domestic courts failed to examine these aspects and they did not provide relevant and sufficient reasons for the interference.
The applicant is a lawyer and he represented a party (the plaintiff) in a domestic civil litigation. Because the applicant’s client succeeded only partially in the litigation, the applicant joked in his written appeal “about a professor who expected his students to provide the names, and not only the number, of the victims of the bombing of Hiroshima” [para. 1]. The applicant then went on to say that the court “had treated him like the professor treated his students in that joke” [para. 1].
The Brčko District Court of Appeal rejected the appeal. In addition, the court also fined the applicant 1000 KM (local currency; about 510 EUR) for contempt of court since the joke’s relation to the lower-instance court was insulting. The applicant appealed to the same court (in another formation) and the Constitutional Court of Bosnia and Herzegovina (“CCBH”) on grounds of a violation of freedom of expression, but to no avail. Aggrieved, the applicant lodged the application before the ECtHR invoking a violation of Art. 10 of the the ECHR.
The ECtHR reversed the decision of the CCBH and allowed the appeal, holding a violation of Art. 10 on the grounds of insufficient justification for the interference.
While it aligned with the applicant in that there was an interference to the applicant’s right, the ECtHR went on to hold that such interference was prescribed by law and pursued a legitimate aim (protection of judiciary). Therefore, the primary conflict boiled down to whether the restriction was “necessary in a democratic society”, the final leg of the tripartite test.
The Court reiterated its well-established standard, i.e. it was crucial to examine the case as a whole. That includes “the content of the remarks held against the applicant and the context in which they were made” [para. 4]. The court emphasised on the dual principles of whether the interference was“proportionate to the legitimate aims pursued” and whether the justification to the restriction “relevant and sufficient” [para. 4].
The first aspect that the ECtHR discussed was the forum in which the applicant used the insult. The allegedly insulting words were uttered as part of judicial proceedings, i.e. “in a forum where [the applicant’s] client’s rights were naturally to be vigorously defended”(Radobuljac v. Croatia no. 51000/11, § 62) [para. 5]. Further the court relied on Morice v. France [GC] (no. 29369/10, §§ 136-38, ECHR 2015) to hold that the statements were part of the appeal and the applicant did not criticize the court or the judge on another platform like the media. This is an important consideration because the general public were not made aware of the impugned remarks. According to the ECtHR, the “domestic courts, “in their examination of the case, failed to give sufficient weight to the context in which the remarks had been made” [para. 5]. The Court proceeded by ruling that the remarks could not “be interpreted as gratuitous personal attacks with the sole intent to insult a court, or members of a court” [para. 5] because the impugned lines aimed at the manner in which the court applied evidentiary rules to the appeal. Although such language could be characterized as caustic or sarcastic, this does not leave it out of the Article 10 protection (Morice v. France [GC] no. 29369/10, § 139, ECHR 2015)
The Government and the CCBH in its judgment argued that lawyers’ “professional conduct must be discreet, honest and dignified” so that “the courts enjoy public confidence” [para. 7]. Nonetheless, this duty must be analyzed together with the ECtHR’s standard that “for members of the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation” [para. 7].
Bearing in mind all of the above said, the Court concluded that the domestic courts failed to provide relevant and sufficient reasons for interfering with the applicant’s right and violated the applicable standards of Art. 10 of ECHR. Thus, the interference was not necessary in a democratic society. The court awarded the applicant EUR 510 in respect of pecuniary damage, EUR 4,500 in respect of non-pecuniary damage and EUR 2,550 for legal costs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling expands expression, which will be welcomed by lawyers/attorneys in Council of Europe member states. The Court reaffirmed its position that the relevant test/standard is whether the speech aims solely to insult judges or courts. That was not the situation in this case since the applicant used a joke to criticize the court’s interpretation of the law to a specific case. Yet, this case conflicts with Žugić v. Croatia case where the applicant also used harsh language against the judge to argue that the judge did not conduct a proper hearing as required by domestic law (see. para. 9 of the judgment). As in the Simić case, the speech was also written as an appeal. Furthermore, Croatian courts fined the applicant in criminal proceedings, implying that the applicant’s punishment in that case was harsher than the applicant’s punishment in the Simić case. Yet, Simić used a joke, and this might be treated as a crucial distinction comparing to Žugić. Thus, if a conclusion regarding the cases comparison is desired, one could argue that it will be safer for lawyers to “attack” judges’ actions with a joke or humor rather than only harsh language.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.