Freedom of Expression and Association; role of national higher courts; Role of Lawyers; Use of the Preliminary Reference Procedure.

Ustavno sodišče Republike Slovenije

Constitutional court of the Republic of Slovenia

Up-1306/19-16

23 February 2023

ECLI: SI:USRS:2023:Up.1306.19

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Criminal conviction of a party to court proceedings, insulting higher court judges, 3 crimes of insult, criminal penalty of 1.400 EUR imposed, limits to freedom of expression, remarks ad personam, abuse of freedom of expression, adequate general principles for reviewing such cases, review under Article 10(2) or Article 17 ECHR.

-    In a situation, in which a party to the proceedings makes insulting remarks ad personam to judges hearing his case, what type of review should the court hearing the case adopt: review under Article 10(2) or review under Article 17 ECHR?


-    Does the jurisprudence of the ECtHR allow to include in the notion of abuse of rights from Article 17 ECHR speech which is not considered to be hate speech falling under Article 17 (=statements that seek to divert the right to freedom of expression from its fundamental purpose to purposes contrary to the values of the Convention, such as the justification or glorification of terrorism and war crimes, the promotion of violence and hatred, threats to territorial integrity and the constitutional order, the promotion of totalitarian ideologies and crimes against humanity)


-    The limits of insults/criticism of judges from the perspective of freedom of expression.

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A party to the proceedings sent private letters to judges from the Higher Court of Ljubljana, that heard his case. He made the following insulting remarks:

“There is a reasonable suspicion that you do not have a state legal exam, or you obtained it contrary to the provisions of the State Legal Exam Act.”

“You are abusing the criminal law as a criminal tool for the oppression of the Slovenian people, which can be equated with the fascist theory of the oppression of the people.”

Following a proposal to prosecute from the three judges under Article 168 (2) of the Criminal Code, the applicant was found guilty of three crimes of insult. He was imposed a criminal fine of 1.200 EUR. He claimed that such a conviction is contrary to Article 39 of the Constitution (freedom of expression). In its judgment of 4 April 2019, the Supreme Court ruled:

"There are no circumstances in the facts of the case that would indicate that the convicted person’s conduct entailed a form of criticism of the injured parties. Only in such a case would the convicted person’s conduct or words, even if offensive, require an assessment from the point of view of the protection of his right to freedom of expression. Not only do the convicted person’s allegations in his letter of 15 April 2011 go beyond the bounds of respectful and decent communication that would involve (at the very least) insulting criticism of the injured parties, but his words cannot be said to be criticism of any kind at all. The convicted person’s expression was not aimed at disparaging (criticising) the work of the injured parties, but was aimed exclusively at insulting and discrediting them personally (ad personam). However, such expression cannot enjoy unlimited protection of the right to freedom of expression. This right is intended to protect the free exchange of views, and the convicted person’s conduct cannot be seen as an attempt to promote any exchange of views, but merely as an attempt to shame the injured parties. The alleged infringement of criminal law has therefore not been established."

The applicant filled a constitutional complaint to challenge the decisions of the regular courts before the Constitutional court.

The reasoning of the Constitutional Court can be divided in two steps. The Constitutional Court first constructed the upper premise. It relied extensively on the jurisprudence of the ECtHR and its own previous caselaw. It ruled that the case concerns a collision between freedom of expression and the protection of reputation. It found that in such cases, the ECtHR’s assessment takes into consideration all the relevant circumstances of the case “such as the content, form, and consequences of the statements; their contribution to a debate in the public interest; the prior conduct and status of the injured party; as well as the distinction between statements of facts, which can be proven to be true, and value judgements, which are not susceptible of proof. The ECtHR also assesses the proportionality of the imposed penalty within the scope of the criterion of "necessary in a democratic society.” It noted that “[t]he above criteria are also derived from the established case law of the Constitutional Court” (para. 10). It then highlighted the special position of judge: they are public figures and thus must bear a higher degree of criticism compared to ordinary citizens. However, they have to enjoy public confidence to be able to fulfil their role in the democratic society. As a result, they “must be protected against “unjustified destructive attacks, particularly in view of the fact that judges who are criticised exclusively for exercising their judicial function are subject to a duty of discretion in the cases they hear that prevents them from responding to such criticism.” The Constitutional Court added that [t]he fact that they cannot explain their actions other than in the context of judicial decisions is an important element that distinguishes them from other public officials, which must be taken into account in the context of a comprehensive assessment of an interference with the freedom of expression. The Constitutional Court noted that such a comprehensive assessment is not performed in the case of an abuse of right to freedom of expression under Article 17 of the Convention. It ruled that this provision is used rarely and only in exceptional cases “such as the justification or glorification of terrorism and war crimes, the promotion of violence and hatred, threats to territorial integrity and the constitutional order, the promotion of totalitarian ideologies and crimes against humanity,” and noted the similarity of this provision to Article 63 of the Constitution.

Turning to the reasoning of the Supreme Court, the Constitutional Court noted that the Supreme Court did not adopt the approach required under Article 10 (2) of the Convention and that it seems that the Supreme Court relied on the approach under article 17 ECHR. The Constitutional Court found such an exceptional approach was not in place in the case at hand. As a result, it decided to quash the decision of the Supreme Court and remand the case back thereto for fresh adjudication.

The decision was not unanimous. The President of the Constitutional Court, Matej Accetto gave a dissenting opinion. He argued that the ECtHR allows for the exclusion of guarantees of Article 10 (and reliance on Article 17) in cases, where the expression is not aimed to disseminate ideas or opinions, but its sole purpose is to insult and degrade. He relied on Rujak v Croatia (app no. 57942/10, 2 October 2012), a case, in which the ECtHR already adopted such an approach. He argued that some other cases (Uj v Hungary, para. 20; Tuşalp v Turkey, para. 48)  can also be read in such way – see fn. 11 of his dissenting opinion. Concurring judge Čeferin disagreed and argued that the Rujak case was simply insufficiently reasoned and unconvincing. Šugman Stubbs, another concurring judge added that Rujak v Croatia was never cited in subsequent ECtHR jurisprudence and was often criticised.

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Consistent interpretation.

The Constitutional Court extensively relies on its previous case law.

The Constitutional Court extensively relies on the jurisprudence of the ECtHR with the aim to construct the upper premise (the applicable general principles). The case is also an example of an interaction between the Constitutional Court and the Supreme Court. The first quashed the decision of the later and indicates on which general principles the fresh decision of the Supreme Court should be based. The Supreme Court complies with the instruction in the follow-up to the decision of the Constitutional Court.

The aim of reference to the ECtHR case law is arguably to enhance the legitimacy of the argumentation, with which the Constitutional Court required a completely different methodology from the Supreme Court. It thus seems that the Constitutional Court also relied on the Strasbourg Court’s case law to soften the institutional conflict between the two highest Slovenian courts.

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Constitutional Court, Decision Up-455/15 of 24 January 2019 – analysis available at: https://cjc.eui.eu/data/data/data?idPermanent=249&triial=1

Čeferin v Slovenia app. no. 40975/08, 16 January 2018 - analysis available at: https://cjc.eui.eu/data/data/data?idPermanent=250&triial=1

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Full text in English available at: https://www.us-rs.si/decision/?lang=en&q=+Up-1306%2F19-16&order=desc&id=121081

Mohor Fajdiga, University of Ljubljana