Communicated on 21 March 2018
FOURTH SECTION
Application no. 36024/16
Niko MIHOLIČ
against Slovenia
lodged on 20 June 2016
STATEMENT OF FACTS
1. The applicant, Mr Niko Miholič, is a Slovenian national who was born in 1985 and lives in Ljutomer.
A. The circumstances of the case
1. Non-contentious civil proceedings
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 16 December 2008 X instituted proceedings seeking to set up a commonhold association (etažna lastnina) in respect of her flat. The applicant, who owned a flat in the same building, joined the non-contentious civil proceedings as a participant.
4. On 14 August 2012 Judge B.K. of the Ljutomer Local Court, acting as a single judge, issued a decision establishing a commonhold association in respect of the flats in the building at issue and the neighbouring buildings.
5. The applicant appealed, maintaining that the first-instance court had erred in assessing the facts and law, and had committed several substantial procedural errors. In this connection, he expressed doubts about the impartiality of the judge, alleging procedural violations which, in his opinion, “indicated a suspicion” of criminal offences on the part of the judge.
6. On 8 January 2013 the Maribor Higher Court granted the appeal, quashed the first-instance decision and remitted the case to the Local Court for fresh consideration.
7. On 18 March 2014 Judge B.K. notified the applicant that X’s heirs had not paid for the costs of a land-survey and mapping company that had provided an expert witness report and that their application for the establishment of a commonhold association had therefore been considered withdrawn. He added that the decision to terminate the proceedings (sklep o ustavitvi postopka) would be later issued in writing.
8. On 9 April 2014 the applicant applied for continuation of the proceedings, claiming that the notification of 18 March 2014 had been unlawful. He drew the attention of the court to various violations that had allegedly occurred in the proceedings so far. In particular, he asserted that the court had had no grounds for claiming the payment of an advance on the expert’s expenses and that by ordering X’s heirs to pay the excessive amount of 500 euros (EUR), the court had unlawfully pushed them to withdraw their application. Furthermore, the applicant maintained that the court had unlawfully omitted to notify him of his right to apply for the continuation of the proceedings. The relevant part of the application reads as follows:
“Everything points in the direction that when the court notified me of the withdrawal and refrained from informing me of my rights, it tried to lead me to erroneously believe, and by that convince me to be silent against my will and thus indirectly consent to the withdrawal rather than exercise my fundamental right to judicial protection.”
The applicant also maintained that the court had not been acting impartially in the proceedings, since it had previously notified X’s heirs of the negative consequences of not paying an advance for the expenses of the expert witness. He then argued that the court had been prolonging the proceedings, had been making them unnecessarily expensive and had violated fundamental moral principles by requesting the payment of the advance for something that had been a mistake on the part of the court and/or the expert witness. The applicant asserted that for ten years the court had been obstructing his right to record the building in the land register. Lastly, he claimed that the violations perpetrated by the judge in the proceedings “indicated a suspicion” of several offences under the Criminal Code. The applicant termed this part of the application as follows:
“(a) [supposing] an official who, on the grounds of differences in economic situation, education or any other circumstance, deprives or limits someone’s human rights ... as seen from the violations listed above ... has he committed the offence of violation of equality punishable under Article 131 § 3 of the Criminal Code?
(b) supposing the judge, by requesting a new payment ... even if the study already made was inadequate ... solely as a result of the fault, mistake or errors of the court or the land-survey and mapping firm ... and the person initiating the proceedings is forced, because of economic distress and lack of information about their rights, to consequently withdraw from the proceedings, did [the judge] not commit the offence of fraud punishable under Article 211 § 1 of the Criminal Code?
(c) supposing the judge, by requesting an additional disproportionate payment in the amount of EUR 500 for correcting the study ... and the study is inadequate solely because of the mistakes or errors of the court or the land-survey and mapping firm ... and thereby exploits the distress of ... the party initiating the proceedings, did [the judge] not commit the offence of usury, which is punishable under Article 214 of the Criminal Code?
(d) supposing an official who, in order to obtain an unlawful pecuniary benefit for a third person, has not performed his official duties and ... has not asked ... for the costs of entry to the building and the flats within the building to be covered by the reserve fund assets ... and consequently the person initiating the proceedings withdraws to his or her detriment the application for establishing a commonhold, did [that official] not commit the offence of abuse of office or official duties, which is punishable under Article 257 § 3 of the Criminal Code?
(e) supposing the court, which, because of unreasonable violations of procedural and substantive law rules, has unlawfully postponed the non-contentious civil proceedings for ten years, even though it is a matter of priority ... proceedings which it is possible to conclude in four months, as established by the president of the court ..., did [the court] not unlawfully and for no good reason use public resources, although it should and could have anticipated that this could result in a serious pecuniary loss of public resources, and thereby commit the offence of causing damage to public resources, which is punishable under Article 257 of the Criminal Code?
(f) did not perhaps an official act carelessly at work and consciously violate laws and other regulations, even if he or she should and could have anticipated that this could result in serious violations of my rights or in pecuniary loss, when he or she notified me of the withdrawal and failed to inform me of my rights and thus tried to lead me to erroneously believe, and thereby persuade me to be silent against my will and thus indirectly consent to the withdrawal, and not exercise my fundamental rights to judicial protection? Did not the official thereby commit the offence of unconscientious work performance, which is punishable under Article 258 of the Criminal Code?
(g) if a judge, in conducting judicial proceedings, unreasonably violates the rules of procedural and substantive law, which do not indicate judge’s professional mistakes, and he does not adjudicate in a reasonable time without unnecessary delays and consequently causes me damage, did he not commit the offence of unlawful, biased and unfair trial, which is punishable under Article 288 of the Criminal Code?”
9. On 10 April 2014 Judge B.K. asked the applicant to pay EUR 500 for the expenses of an expert witness. The judge said that if he did not make that payment, the court would consider the application to institute proceedings as withdrawn.
10. At the date of the latest information available to the Court (20 June 2016), the non-contentious civil proceedings were apparently still pending before the domestic courts.
2. Contempt-of-court proceedings
11. On 15 April 2014 Judge B.K. of the Ljutomer Local Court issued a decision under section 109(1) of the Civil Procedure Act, read in conjunction with section 11 of the same Act and section 37 of the Non‑Contentious Civil Procedure Act (see paragraphs 18 and 19 below), fining the applicant EUR 600 for contempt of court. He held that the applicant in his application (see paragraph 8 above) had insulted the court and the judge by reproaching the judge for the commission of several criminal offences and “unprofessionalism”. The judge noted that in his appeal (see paragraph 5 above) the applicant had already insulted the court, but the latter had ignored it and had considered that he would not continue with the insults. The relevant part of the decision read as follows:
“Expressing negative value judgments by ... [the applicant], such as accusations of unprofessionalism, bias and maybe also corruptibility, go beyond the bounds of permissible and acceptable criticism of the work of the court. It is not just a personal attack on a particular judge, but also objectively insulting words, which threaten the reputation and authority of the whole judiciary, of which the particular judge is a member. The purpose of sections 109 and 11 of the Civil Procedure Act is exactly to protect trust in the judiciary and to protect the authority of the judicial branch. The prohibition of insulting applications under section 109 ... does not limit the right of a party to be heard before the court ... [The applicant] could have written only one paragraph in his application ... and not ... entered into polemics about the work of the judge and the court. He could have done that with legal and factual argumentation within the bounds of proper expression of opinions[.] ... he expressed his disagreement with insulting value judgments on the work of the court and the particular judge[.][W]ith [this] ... he undermined the trust in the judiciary and the authority of the court. ...
Having regard to the above explanations and the various insults, the imposed fine is appropriate, and so is the deadline for paying the fine.”
12. The applicant appealed, arguing that the court had erred in assessing the facts and law. In particular, he maintained that the court had not provided solid evidence of his allegedly insulting attitude towards the court and the judge, but had only used unfounded generalisations. Contrary to the first-instance court’s conclusions, he had not used the terms “unprofessionalism” (nestrokovnost) and “corruptibility” (koruptivnost) in the application at issue. He had only asserted that the judge had been biased, and had committed violations of substantive and procedural legal provisions. Furthermore, he had not asserted that the judge had committed any criminal offence, but had, with reasonable legal arguments, expressed his opposition to the way the particular proceedings had been conducted and his disagreement with the judge’s decisions in the proceedings. He emphasised the difference between “committing a criminal offence” (storitev kaznivega dejanja) and “suspicion that a criminal offence has been committed” (sum storitve kaznivega dejanja), which was the terminology he had used. Moreover, his previous appeal (see paragraph 5 above) had not been found insulting by the Higher Court that had quashed the first-instance decision on the basis of that appeal (see paragraph 6 above). The impugned decision had also violated his right to be heard before the court, because his submission could have helped him to effectively protect his rights before the court. Lastly, he maintained that the fine imposed on him had been excessive and that he had been given insufficient time in which to pay it (fifteen days). As a result, he had been forced to restrain himself and carefully weigh every word when defending his fundamental constitutional rights. Maintaining that this could violate his freedom of expression of thoughts, the applicant believed that punishing him had been unjustified.
13. On 10 June 2014 the Maribor Higher Court dismissed the appeal and upheld the first-instance decision. It held that in considering whether the statements had gone beyond the limits of acceptable criticism and amounted to an insult of the court, the Higher Court had to weigh the critical comments against the right to be heard. Although the applicant’s statements in the application could generally be considered acceptable and written in a friendly tone, this could not have been said for his assertions that the judge had breached the law in the non-contentious civil proceedings, raising the suspicion that he had committed several criminal offences. In particular, the applicant argued in substance that the judge and the court had acted unprofessionally, incompetently and criminally (insinuating that they were corruptible). The court concluded that the applicant had given a negative value judgment about the work of the court, intended to harm the reputation of the judge and the judiciary. His comments had exceeded considerably what had been necessary for his application and the right to be heard. The imposition of a fine had therefore been justified.
14. On 16 July 2014 the applicant paid the fine.
15. On 6 August 2014 the applicant applied to the Supreme Public Prosecutor to lodge a request for the protection of legality (extraordinary appeal) before the Supreme Court. On 12 August 2014 the Supreme Public Prosecutor replied to the applicant, informing him that she would not lodge a request for the protection of legality in his case.
16. The applicant lodged a constitutional complaint. Citing several Constitution Articles, he complained that he had been convicted of contempt of court in proceedings which had been unfair and biased. In his submission, it was unacceptable that a judge who had felt personally affected and offended by the applicant’s statements could convict him and impose a penalty. He argued, inter alia, that the Higher Court’s decision had not addressed his arguments and that it had been unreasoned and arbitrary. The first and second-instance courts had punished him for thoughts he had neither said nor written down. Those he had written down had drawn attention to the judge’s actions, indicating some substantial similarities with the Criminal Code provisions cited by the applicant. He further submitted that his freedom of expression and his right to be heard had been violated.
17. On 22 December 2015 the Constitutional Court rejected the constitutional complaint as inadmissible referring to, inter alia, section 55a (2) of the Constitutional Court Act (see paragraph 20 below). The decision was served on the applicant on 24 December 2015.
B. Relevant domestic law
18. The relevant provisions of the Civil Procedure Act (Official Gazette no. 73/07 with further relevant amendments), as they stood at the relevant time, read as follows:
Section 11
“...
(3) The court may impose a monetary fine for abuse of rights in a maximum amount of EUR 1,300.
(4) The monetary fine shall be imposed by a decision. The decision shall set the date by which the fine should be paid. The time-limit for the payment of the fine shall not be shorter than fifteen days or longer than three months.
...”
Section 109
“(1) The civil court may sanction anyone who in written submissions insults the court, the party or any other person who is taking part in the proceedings, in accordance with the provisions of subsections (3) and (4) of section 11 of this Act.
(2) The penalty imposed in accordance with subsection (1) above does not prevent a criminal penalty from being imposed for a criminal offence.”
19. Section 37 of the Non-Contentious Civil Procedure Act (Official Gazette of the SRS no. 30/86, with further relevant amendments) reads as follows:
“In non-contentious civil proceedings the provisions of the Civil Procedure Act should apply as appropriate, unless otherwise provided for by this or another Act.”
20. The applicable provisions of the Constitutional Court Act are set out in Knežević and Others v. Slovenia (dec.), no. 51388/13, § 16, 19 September 2017.
COMPLAINT
21. The applicant complains under Article 10 of the Convention that the imposition of a fine for contempt of court, which he considers unjustified in the circumstances of his case, violated his freedom of expression. He also complains that section 109 of the Civil Procedure Act (see paragraph 18 above) was arbitrarily applied and that the fine he was ordered to pay was excessive.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention?
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