Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The European Court of Human Rights ruled, by a majority, that the imposition of a fine for contempt of Court did not violate the Applicant’s right to freedom of expression on the ground that the restriction was provided for by law; it pursued a legitimate aim, and was necessary in a democratic society. During appellate proceedings relating to an unpaid water supply bill, the Applicant Mr Žugić used words that implied that he disrespected the Court and questioned the competence of the first-instance court judge. On this basis, the Zagreb Municipal Court imposed a fine of 500 Croatian kunas (HRK) (approx. 66 EUR in 2022) on him for contempt of Court. His appeals to the County Court and the Constitutional Court were dismissed. In a 4:3 decision, the ECtHR held that the Applicant’s words implied that the Judge was ignorant and incompetent, which amounted to an insult and disrespect to the Court. The Court held further that the Applicant could have presented his arguments without using improper language. The fine imposed on the Applicant was low, as it was the minimum penalty provided for under domestic law. The dissenting Judge argued that the Applicant’s language formed a part of his grounds of appeal; he used strong words to describe what had happened during the hearing and did not go beyond acceptable limits.
On December 11, 2000, a public utility company instituted an enforcement proceeding for non-payment of the water supply bill against the Applicant, Mr. Nikolas Žugić, before the Zagreb Municipal Court. The Court issued a writ of execution, and the Applicant objected to the writ; the Court converted the enforcement procedure to a civil proceeding due to the Applicant’s objection.
Although not practicing as an advocate, the Applicant, who has a formal education as a lawyer, represented himself before the Court [para 5-7]. On December 27, 2005, the Applicant filed an appeal to Zagreb County Court, dissatisfied with the Court’s decision, as provided under Section 357 of the Civil Procedure Act, 1977. The Applicant’s appeal to the Zagreb County Court was dismissed, and his further complaint to the Constitutional Court was declared inadmissible.
On January 4, 2006, the Municipal Court delivered a contempt of court decision against the Applicant based on a statement in his appeal which questioned the professionalism of the Judge and the competency of the Court:
“It is evident… 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 …” [para 9].
The Court imposed a fine of 500 Croatian kunas (HRK) [approx. 66 EUR in 2022] on the Applicant for contempt of Court on the ground that the Applicant insulted the Court and addressed the Judge in an impermissible way using words that implied that the Judge was ignorant as well as incompetent [para. 13].
On January 16, 2006, the Applicant challenged the contempt of Court’s decision before the Zagreb County Court. The Applicant, in his appeal, argued that the municipal Court subjectively interpreted his words and he had no intention of insulting anyone. The County Court dismissed the Applicant’s appeal on the ground that the Applicant, by the statement, insulted and disrespected the Court and represented an improper way to address the Court [para. 14-15].
The Applicant’s constitutional complaint to the Constitutional Court was declared inadmissible because the contested decision did not form part of the case’s merit and could not be subjected to constitutional review [para. 16].
To collect the 500 Croatian kunas fine, Zagreb Municipal Court, on May 21 2008, issued a writ of execution by garnishment on part of the Applicant’s pension.
The Applicant moved to the European Court of Human Rights alleging violations of Article 10 (right to freedom of expression), Article 6 (1) (lack of access to the Court), Article 6 (1) (impartiality) and Article 6 (1) and 14 (unfairness) of the European Convention on Human Rights (ECHR).
The main issue before the Court was whether the imposition of 500 Croatian kunas fine on the Applicant for contempt of Court violated his rights to freedom of expression under Article 10.
The Government admitted that imposition of 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 was necessary for a democratic society. They reiterated that the Applicant had been a lawyer and that he would be familiar with the rules of conduct in communication with the Court. Thus, the Applicant could have responded differently to express his dissatisfaction. Finally, they emphasized that the Applicant had received the lowest fine prescribed for contempt of Court [paras. 27-34].
The Applicant argued that his statements in his appeal were not insulting, as there was no intention to insult either Judge or the Court as an institution; instead, his statement had been arbitrarily interpreted by the domestic courts. He mentioned categorically that he never said that the Judge was incompetent or ignorant as implied by the first-instance Court [paras. 36- 37].
The ECtHR reiterated its case law stating that “the parties’ freedom of expression in the courtroom is not unlimited and certain interests, such as the judiciary’s authority, are important enough to justify restrictions on this freedom” [para. 41].
The Court found that: “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”. So, it was for the ECtHR to decide if the interference was necessary for a democratic society [para. 42].
While saying that courts should be protected from unfounded attacks, the Court also stated that courts “are not immune from criticism and scrutiny (Skałka v. Poland, App. No. 43425/98 (2003) para. 34). Therefore, while parties are entitled to comment on the administration of justice to protect their rights, their criticism must not overstep certain bounds (see Saday v. Turkey, App. No. 32458/96, (2006) para. 43). 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” [para. 45]. The ECtHR relied on its earlier cases Saday v Turkey, in which the accused described the Turkish judiciary as “torturers in robes”; R. v. Austria, App. No. 26602/95, (1997), in which counsel had described the opinion of a judge as “ridiculous”; and Mahler v. Germany, App. No. 29045/95 (1998), where counsel asserted that the prosecutor had drafted the bill of indictment “in a state of complete intoxication”.
The Court then concluded: “the impugned statements, framed in belittling and impertinent terms, were not only a criticism of the first-instance judgment of November 15, 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 (A. v. Finland, App. No. 44998/98 (2004))” [para. 47].
The Court also considered the proportionality of the interference and noted that the minimum amount fine was applied to the Applicant [para. 48].
In a 4:3 decision, the Court held there had been no violation of the Applicant’s right to freedom of expression as provided for by Article 10 in imposing the fine of 500 Croatian kunas on the Applicant for contempt of Court. The Court further dismissed the claims under Article 6(1) and 14 as unsubstantiated.
Dissenting Opinion of Judge Spielmann, joined by Judges Hajiyev and Nicolaou:
The dissenting opinion was written by judge Spielmann and joined by two other judges. The Judge agreed that Article 10 of ECHR cannot protect the phrases used by the applicants in the three cited cases. Still, the present case is different since the Applicant only described what had happened during the hearing, albeit in strong words. His misgivings concerning the Judge’s attitude during the hearing were part and parcel of his grounds of appeal. The dissenting Judge concluded that the Applicant’s statements in his appeal fell short of being insulting. Hence, the reasons given by the domestic courts in support of their decisions were, in his view, not “relevant and sufficient.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment contracts freedom of expression. The mere fact that the judgment was rendered by the slight majority (4:3) indicates that the case was difficult to adjudicate. It was not difficult on facts, but on a point of law. The applicant’s statements were part of his argument. One of the ECtHR’s standards is that “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”. Nevertheless, this is not the case here because the applicant used “strong words” (as described by judge Spielmann), but those lines served one purpose only – to persuade the second-instance court that the process was not fair. The main purpose of the impugned content was not to insult but to win the case. Thus, it seems that the majority overlooked this aspect of the case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Let us know if you notice errors or if the case analysis needs revision.