SECOND SECTION
CASE OF CIMPERŠEK v. SLOVENIA
(Application no. 58512/16)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Refusal to award title of court expert to applicant, who had succeeded in examination, on basis of his blog and complaints criticising State authorities • In determining whether measure amounted to interference with freedom of expression, parallels drawn with case-law on applying concept of “private life” to employment-related scenarios under Art 8 • Essential elements of the decision directly related to the exercise of freedom of expression • Refusal having potentially chilling effects on those wishing to perform function of court expert • Lack of detailed reasons specifying comments considered to be offensive • Lack of effective and adequate judicial review addressing applicant’s arguments and balancing competing rights and interests at stake
Art 6 § 1 (civil) • Unjustified refusal to hold an oral hearing

 
STRASBOURG
30 June 2020
 
FINAL
 
30/09/2020
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Cimperšek v. Slovenia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Valeriu Griţco,
 Marko Bošnjak,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Darian Pavli,
 Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Jernej Cimperšek (“the applicant”), on 5 October 2016;
the decision to give notice to the Slovenian Government (“the Government”) of the complaints concerning Article 6 § 1 (absence of an oral hearing) and Article 10 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 2 June 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the dismissal of an application by the applicant for the title of court expert owing to his lack of personal qualities, essentially because of the content of his blog and his complaints about the work of the Ministry of Justice. The applicant relied on Article 6 § 1 (as regards the absence of an oral hearing before the first-instance court) and Article 10 of the Convention. THE FACTS
1. The applicant was born in 1960 and lives in Ptuj. He was represented by Ms T. Cimperšek, a lawyer practising in Celje. 2. The Government were represented by their Agent, Ms J. Morela, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant has been writing an online blog entitled “Politics, the kitchen and chicks” (“Polit’ka, kuh’na & babe”) since 2013. Proceedings before the Ministry of Justice
5. On 25 April 2013 the applicant, who has a master’s degree in construction, applied for the title of “court expert on the assessment of the effects of natural and other disasters”. 6. On 27 August 2013 the Minister of Justice (“the Minister”) issued a decision, inviting the applicant to take a test in which his professional knowledge would be examined. As regards other criteria, the decision noted that the applicant had submitted all the documents which had been requested. 7. The applicant was subsequently examined by a six-member commission composed of experts in the field. On 19 May 2014 the Minister issued a certificate confirming that the applicant had successfully passed the examination. 8. On 10 and 23 June 2014 the applicant sent letters to the Ministry of Justice (“the Ministry”) in which he complained of delays in the proceedings and asked to take the relevant oath (taken by court experts) before the summer holidays. 9. The applicant’s taking of the oath was first scheduled for 4 July 2014, but on 30 June 2014 it was rescheduled for 16 July 2014. 10. Subsequently, the applicant sent an email to the Ministry in which he wrote “This is making a fool out of people! This is not how it works in a serious country!” The applicant also sent an email to other candidates who were hoping to become court experts, appraisers and interpreters and were waiting to take the oath, saying “I phoned the State Secretary’s Office at the Ministry of Justice on 11 June, but nothing can happen because that B.A. [the name of an employee] is on leave, [so] they said in the Cabinet, but we are not important. I suggest that the rest of you call [that office] and seriously complain; they have completely lost it ...”
11. On 1 July 2014 the applicant’s representative sent a complaint to the Ministry expressing dissatisfaction with the delays, this time due to the rescheduling of the oath-taking ceremony, and alleging that the Ministry had acted unlawfully and in breach of the Constitution, and that its conduct was unprofessional and unacceptable. 12. On 4 July 2014 the Minister informed the applicant that on the basis of the content of his blog, the complaint of 1 July 2014 (see paragraph 11 above) and the fact that the applicant had forwarded to other candidates emails in which he had made insulting remarks about the work of the Ministry, he had justifiable doubts as to whether the applicant, as a candidate for the title of court expert, had the required personal qualities as determined by section 87 of the Courts Act (see paragraph 23 below). 13. The applicant, represented by a lawyer, replied to the Minister’s letter, arguing that the Ministry had taken his criticism as an insult, and that the decision on his appointment had already been made, so dismissing his application at that stage would be characteristic of the Ministry’s unprofessional work and an authoritarian State. His representative also alleged that the applicant’s blog was insignificant, had no intention to offend and was unrelated to his profession. 14. On 21 August 2014 the Minister dismissed the applicant’s application for the title of court expert. He referred to the applicant’s complaints about the Ministry’s work and noted that after the complaint of 1 July 2014 (see paragraph 11 above) had been received, officials had learned of the applicant’s blog “Politics, the kitchen and chicks” (see paragraph 4 above) from the Internet. The Minister noted, inter alia, “[the applicant] not only writes critical social commentary columns, but also writes offensively about State bodies, visible representatives of political and social life, and certain other persons”. Furthermore, he considered that the applicant, in numerous emails, had inappropriately and in an insulting manner requested that the Ministry and its employees organise the relevant oath ceremony before the summer holidays. On the basis of the applicant’s blog – of which the Ministry had learned only after it had invited the applicant to take the oath – and his complaints, some of which he had circulated by email, the Minister concluded that the applicant did not have the personal qualities required of a court expert under section 87 of the Courts Act (see paragraph 23 below). 15. The Minister noted that court experts were not only highly professional individuals, but also persons worthy of public trust and the trust of parties to court proceedings, meaning that they had to be personally and morally suitable for the work of a court expert. In this connection, he referred to the importance of the work of court experts in judicial proceedings, where the applicant’s conduct and offensive way of addressing State institutions and individuals could have serious consequences for the safeguarding of the reputation of the courts and the State, and were things which, according to the Minister, should not be tolerated. The Minister also rejected as unconvincing the applicant’s argument that the blog was only read by his friends and was thus insignificant, since it was publicly available and the Ministry could access it without any difficulties. Moreover, it rejected the argument that the fact that the applicant had a knighthood proved that he was a person with high ethical and moral standards, noting that a truly moral and ethical attitude was primarily shown through one’s conduct. In the Minister’s opinion, writing an offensive blog and denigrating State institutions and individuals who were in the public eye was not showing such an attitude. A different decision by the Minister on the applicant’s application would be contrary to the interpretation of the legal standard on personal qualities. 16. The Minister also emphasised that he could consider whether the applicant fulfilled the conditions for a court expert by taking into account the appointment procedure as a whole, which came to an end only once candidates took the oath. As regards the applicant’s right to freedom of expression, the Minister noted that the dismissal of his application did not limit his freedom of expression, but had resulted from the applicant’s failure to satisfy the conditions required to grant him the title of court expert. The applicant did not fulfil the conditions to be a court expert, but he could continue to freely express himself on his publicly accessible online blog. JUDICIAL proceedings
17. On 22 September 2014 the applicant lodged a claim with the Administrative Court, disputing the Minister’s decision and alleging that the Minister should have accepted his criticism instead of violating his statutory and constitutional rights, including his right to freedom of expression. He also proposed that several witnesses be heard who could testify to the fact that the blog was read only by his friends, and that he was professionally qualified for the position of court expert and had the requisite personal qualities. 18. On 5 March 2015 the applicant filed his pleadings and requested that a hearing be held in his case. He disputed the way in which the Minister had interpreted section 87 of the Courts Act, and argued that the Minister could not assess his personal qualities in their entirety only on the basis of his emails, complaints and blog. Moreover, he disputed that his writing on the blog was in any way relevant to the work of a court expert. 19. On 7 April 2015 the Administrative Court delivered a judgment dismissing the applicant’s action. After it had summarised the Minister’s decision (see paragraphs 14-16 above) and the applicant’s submissions (see paragraphs 17 and 18 above), the court noted that the question in dispute was whether the applicant fulfilled the requirement regarding personal qualities as defined in section 87 of the Courts Act (see paragraph 23 below). In this connection, it held that personal qualities were determined on the basis of facts related to the candidate’s personality and work. The court considered that the Minister had correctly established the facts of the case and applied substantive legal provisions. It emphasised that the title of court expert was conferred at the moment a candidate took an oath before the Minister. Therefore, the Minister’s decision that the applicant did not have the required personal qualities was not belated. Relying on the reasoning of the contested decision by the Minister, the court concluded that the applicant did not in fact have the requisite personal qualities, and that it was thus unnecessary to examine his remaining arguments, which were irrelevant for a lawful and correct decision. Lastly, it refused to hold a hearing, finding that new facts and evidence were not relevant for the decision as set out in the second indent of section 59(2) of the Administrative Disputes Act (see paragraph 26 below). 20. Subsequently, the applicant lodged an appeal on points of law. On 16 September 2015 the Supreme Court rejected it, finding that he had failed to demonstrate an important legal issue or very significant consequences resulting from the impugned judgment. 21. On 23 November 2015 the applicant lodged a petition for constitutional review of section 73 of the Administrative Disputes Act (see paragraph 26 below) and a constitutional complaint, reiterating his previous complaints. 22. On 19 April 2016 the Constitutional Court rejected the applicant’s petition for constitutional review on the grounds that he lacked a relevant legal interest, and decided not to accept his constitutional complaint for consideration. RELEVANT LEGAL FRAMEWORK AND PRACTICE
23. In accordance with section 87 of the Courts Act as in force at the relevant time (Official Gazette no. 76/07 with relevant amendments), a court expert must fulfil the following conditions. He or she:
(i)        must have citizenship of Slovenia or a Member State of the European Union or the European Economic Area, and a good command of the Slovenian language;
(ii)      must have legal capacity to act;
(iii)     must have the required personal qualities;
(iv)    should not have a criminal conviction for certain specified criminal offences;
(v)      must have a university degree, appropriate knowledge and practical experience in the particular field of expertise;
(vi)    must have at least six years of experience working in the particular field of expertise; and
(vii)  should not carry out activities which are incompatible with the position of court expert. Anyone who has behaved or behaves in such a manner where it is possible to justifiably conclude, on the basis of his or her behaviour, that he or she will not perform the work of an expert honestly and with due diligence, shall not be considered to have the required personal qualities to carry out the work of an expert. 24. On 5 July 2018 the Act on Court Experts, Certified Appraisers and Court Interpreters (Official Gazette no. 22/18) entered into force. Section 16(2) of the Act defines personal aptitude in the following terms:
“Anyone whose work or behaviour does not justifiably indicate that he or she will perform the work of a court expert ... honestly and diligently, or does not justifiably indicate that he or she will protect the reputation and trustworthiness of court experts ... does not have the personal qualities ... of a court expert ...”
25. Court experts shall be appointed from the day when they take the oath before the Minister of Justice (section 88(1) of the Courts Act). 26. The relevant provisions of the Administrative Disputes Act (Official Gazette no. 105/06 with relevant amendments) are set out in the case of Mirovni Inštitut v. Slovenia, no. 32303/13, §§ 18-23, 13 March 2018. 27. On 18 May 2017 the Constitutional Court delivered decision no. U‑I-84/15, in which it held that court experts were considered to be assistants to the courts when giving their findings and opinions at a court’s request. It held that court expert status under the Courts Act was conferred on individuals for the purpose of establishing lists of persons, so that judges could swiftly and effectively designate an expert to give findings and opinions in a particular case. However, while the Courts Act regulated the acquisition of court expert status, it did not determine the right to be a court expert or the right to use court expert status as a special title. It was in the legislature’s discretion to regulate (or not regulate) the status of court experts. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
28. The applicant complained that the absence of a hearing in the proceedings before the first-instance court had been in breach of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
AdmissibilityNo significant disadvantage

(a)    Submissions by the parties
29. Relying on the Constitutional Court’s decision not to accept the constitutional complaint lodged by the applicant for consideration, the Government argued that the applicant had suffered no significant disadvantage. 30. The applicant submitted that he had suffered disadvantages at the domestic level, such as loss of income and damage to his reputation, and that respect for human rights required that his case be examined on the merits. (b)   The Court’s assessment
31. The Court notes that the question of whether the applicant has suffered any significant disadvantage represents the main element of the criterion set forth in Article 35 § 3 (b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, § 39, 1 June 2010, and Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). The Court has held that the absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Konstantin Stefanov v. Bulgaria, no. 35399/05, § 44, 27 October 2015). 32. Turning to the present case, the Court notes that the applicant claimed to have suffered significant loss of income and damage to his reputation due to the dismissal of his application (see paragraph 30 above). The Court cannot assume that the effect of the impugned decision on his income and reputation was insignificant. The Government provided nothing to show that the impact of the matter had been such as to indicate an absence of any significant disadvantage. They merely referred to the Constitutional Court’s decision not to accept the applicant’s constitutional complaint for consideration (see paragraphs 22 and 29 above). However, that decision contains no explanation as to the financial or other impact that the contested decision had on the applicant. The Government’s preliminary objection must accordingly be dismissed. Applicability of Article 6
(a)   Submissions by the parties
33. The Government submitted that although being appointed a court expert was a privilege rather than a right (see paragraph 27 above), Article 6 guarantees had applied to the proceedings at issue. In the context of Slovenia’s legal order, the Government considered that, in principle, this involved a civil matter – payment for performance of a certain public function. 34. The applicant maintained that Article 6 was applicable in the present case, as he had had the right to have his application for the title of court expert examined in fair proceedings. (b)   The Court’s assessment
35. The Court refers to the principles pertaining to the application of Article 6 § 1 of the Convention set out in Regner v. the Czech Republic ([GC], no. 35289/11, §§ 99-112, ECHR 2017 (extracts)) and reiterated in Prebil v. Slovenia (no. 29278/16, §§ 32-33, 19 March 2019). The Court further notes that it has previously found Article 6 § 1 of the Convention applicable to disputes concerning the recruitment or appointment of civil servants and judges, where the domestic law allowed access to a court to challenge relevant decisions (see Juričić v. Croatia, no. 58222/09, §§ 56‑58, 26 July 2011). 36. As regards the present case, the Court notes that in the Slovenian legal system there is no right to acquire the title of court expert (see paragraph 27 above). It is, however, undisputed by the parties that the applicant, as a candidate for the title of court expert, had the right to a lawful procedure for the examination of his application. Furthermore, the Court notes that Slovenian law allows decisions of the Minister on the acquisition of the title of court expert to be challenged before the judicial authorities, and that the applicant contested the impugned decision before the Administrative Court (see paragraph 17 above; see also Juričić, cited above, § 56). Lastly, the Court takes note of the Government’s submission that the case involved a civil matter. In particular, the applicant would have been able to exercise a paid public function had he acquired the title court expert (see paragraph 33 above). 37. Having regard to the above considerations, the Court finds that Article 6 applies to the present case under its civil limb. Conclusion as to the admissibility of the complaint
38. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsSubmissions by the parties

39. The applicant maintained that the facts relied on by the Minister had not led to the conclusion that he would not be able to carry out the work of an expert professionally. The first-instance court had arbitrarily concluded that the facts he had put forward in his submissions and the proposed evidence had not been relevant for the decision. In particular, the applicant maintained that assessing the letters of recommendation written by reputable individuals and hearing a number of witnesses who had been professionally and personally connected to him could have challenged the Minister’s conclusion regarding his personal qualities. 40. Assuming that Article 6 of the Convention was applicable, the Government relied on the Administrative Court’s arguments for rejecting the applicant’s request for a hearing (see paragraph 19 above), and maintained that holding a hearing had not been necessary in the present case. They also argued that the applicant’s request for a hearing (see paragraph 18 above) had been unsubstantiated.

Outcome for Article 6: violation