Slovenia, Administrative Court of the Republic of Slovenia, Order I U 901/2014, ordinary, 17 December 2014, ECLI:SI:UPRS:2014:I.U.901.2014
Member State
Slovenia
Topic
Accountability, freedom of expression
Sector
Judicial Interaction Techniques; Judicial Self-Government (Judicial Council, Court Presidents); Freedom of Expression and Association; Disciplinary proceedings; Judicial Ethics; Role of Lawyers.
Deciding Court Original Language
Upravno sodišče Republike Slovenije
Deciding Court English translation
Administrative Court of the Republic of Slovenia
Date Decision
17 December 2014
ECLI (if available)
ECLI:SI:UPRS:2014:I.U.901.2014
National Follow Up Of (when relevant)
N/A
EU legal sources and CJEU jurisprudence
N/A
ECtHR Jurisprudence
Casado Coca v Spain (no. 15450/89)
Nikula v Finland (no. 31611/96)
Frankowicz v Poland (no. 53025/99)
Veraart v the Netherlands (no. 10807/04)
Steur v the Netherlands (no. 39657/98)
Subject Matter
Freedom of expression of lawyers, decision of the Ethical Commission of the Slovenian Bar Association finding a violation of ethical principles, critical and allegedly offensive remarks concerning the work of a public authority, no sanction imposed, the right to access to court, public/private nature of the decision of the Ethical Commission.
Legal issue(s)
The Administrative Court (the AC) had to determine whether the decision of the Ethical Commission of the Slovenian Bar Association constitutes an act of public power (de iure imperii) or not, and whether the lawyer affected by the decision of the Ethical Commission is entitled to challenge its decision in an administrative dispute.
Request for expedited/PPU procedures
N/A
National Law Sources
Administrative Dispute Act, Articles 1, 4
Constitution, Articles, 121, 157(1)
Supreme Court, Order I Up 462/2012 of 8 May 2013
Facts of the case
A practising lawyer attended a press conference, organised by her client, a private company. At the press conference, she complained about the lack of professionalism and arbitrary decision-making of the National Review Commission for Reviewing Public Procurement Award Procedures (the NRC). Referring the concrete case, in which her client was involved, she stated that members of the NRC lacked the basics of economy and that they have resorted to primary school language. Her statement was published by the media. As a result, a procedure before the Ethical Commission of the Slovenian Bar Association was initiated. She was found to have violated provision no. 18 of the Code of Ethics, which provides that in the course of their work, lawyers should protect the reputation of the court and other public authorities, and that they have a duty to promote public confidence in the work of public authorities. The Court of Honour of the Slovenian Bar Association, hearing an appeal against the decision of the Ethical Commission, upheld its decision. The applicant therefore initiated an administrative dispute, challenging the decisions of both bodies of the Bar Association.
Reasoning (role of the Charter or other EU, ECHR related legal basis)
Before the AC, the applicant relied on Article 4 of the Administrative Dispute Act (the ADA) and Article 157 (2) of the Constitution, both providing that an administrative dispute can be initiated against measures and acts that interfere with constitutional rights. She argued that her right to freedom of expression was violated by the Ethical Commission. She relied on the above provided five cases of the ECtHR. In all cases, the ECtHR found that measures taken by professional organisations (Bar associations in Casado Coca, Veraart and Steur, and Medical court in Frankowicz) interfered with Article 10 ECHR.
The AC acknowledged the existence of these cases, but ruled that for the case at hand, the crucial question was not whether there was an interference, but the nature of the decision, taken by the Ethical Commission. In other words, it first had to be determined whether the Ethical Commission acts as a “state body, body of the local community or a holder of public powers”. If it does not, then the decision cannot be challenged in an administrative dispute. Clearly, the Ethical Commission of the Bar Association was neither a state body nor a body of the local community. As to its potential status of “holder of public powers”, the AC relied on Article 121 of the Constitution, which provides that private law persons may be granted public powers to carry out certain tasks of state administration. It ruled that tasks of state administration are tasks of the state that can be entrusted to private persons by granting them public powers. Given that the Code of Ethics of the Legal Profession is a professional agreement of lawyers based on the principle of self-government within the Bar Association, the task of reviewing the compliance with the Code of Ethics cannot be entrusted to the state. As a result, it is not a “task of state administration” and the Bar Association cannot be considered to have been entrusted with public powers. As a result, the decision of the Ethical Commission was adopted in the context of private law functioning of the Bar Association, meaning that it cannot be challenged in an administrative dispute. However, this does not mean there is no possibility to challenge the said decision before a regular court as the act of the Ethical Commission may interfere with civil rights. Therefore, the AC concludes that its decision does not depart from the ECtHR caselaw, since one has to take into account the special features of each national legal system and the role of Bar associations in it.
Relation of the case to the EU Charter
N/A
Relation between the EU Charter and ECHR
N/A
Use of Judicial Interaction technique(s)
consistent interpretation, comparative reasoning with foreign legislation or foreign caselaw
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
N/A
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
The AC relied on a case of the Supreme Court (I Up 462/2012), where the Supreme Court came to the conclusion, that disciplinary procedures against lawyers are not a matter of public powers and cannot be challenged in an administrative dispute. The AC ruled that given the opinion of the SC concerned disciplinary procedures, such opinion applies a fortiory to the decision of the AC in this case, which concerns ethical procedures.
The AC recognised the caselaw of the ECtHR and explicitly engaged with the ECtHR’s conclusions. It found that the decision at hand did not depart from them. This shows the Court took them seriously, but found a way around them, relying on the peculiarities of the Slovenian legal system. It hinted that other legal remedies could be possible to challenge the decision of the Ethical Commission and that thus the Slovenian system is compliant with the requirements of the ECHR. The author of this analysis is not aware of any decision that would challenge the decision of the Ethical Commission outside the context of administrative dispute. It is questionable, whether other procedures would constitute effective remedies for protection of freedom of expression of lawyers in the sense of Article 13 of the ECHR.
Strategic use of judicial interaction technique (purpose aimed by the national court)
See Vertical Judicial Interaction patterns.
Impact on Legislation / Policy
The decision of the AC in this case is still valid as it was upheld by the Supreme Court. In its decision, the SC relied on the Constitutional Court, Order U-I-140/13 of 29 December 2014, where the Constitutional court found that the Code of Ethics of the Legal Profession is not a public regulation or a general act, but “a statement of moral principles of a legal nature.” The decision of the AC in this case thus represents the established approach to challenges of opinions of the Ethical Commission for lawyers in Slovenia.
Notes on the national implementation of the preliminary ruling by the referring court
N/A
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
N/A
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
N/A
Did the national court take into account national case law on fundamental rights?
N/A
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
N/A
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
N/A
Impact on national case law from the same Member State or other Member States
N/A
Connected national caselaw / templates
N/A
Author
Mohor Fajdiga, University of Ljubljana
History of the case: (please note the chronological order of the summarised/referred national judgments.)
1. Ethical Commission of the Slovenian Bar Association, decision no.? (not available)
2. Court of Honour of the Slovenian Bar Association, decision no.? (not available)
3. Administrative Court of the Republic of Slovenia, Order I U 901/2014 of 17 December 2014
4. Supreme Court of the Republic of Slovenia, Order I Up 32/2015 of 11 November 2015