Last Updated on February 7, 2023 by LawEuro
Legal summary
February 2023
Paun Jovanović v. Serbia – 41394/15
Judgment 7.2.2023 [Section IV]
Article 1 of Protocol No. 12
General prohibition of discrimination
Unjustified conduct by judge preventing lawyer from using the Ijekavian variant of the Serbian language and allowing the use of the Ekavian, despite equal official status of both variants: violation
Article 6
Constitutional proceedings
Article 6-1
Fair hearing
Lack of adequate reasoning provided by Constitutional Court in refusing to deal with applicant’s appeal against discriminatory treatment: violation
Facts – The application concerns the use in judicial proceedings of two standard and equal variants of the Serbian language, Ekavian and Ijekavian, having the same official status.
The applicant acted as defence counsel in a criminal hearing before the investigating judge. When posing questions directly to a witness, the applicant used the Ijekavian variant of the Serbian language, however, he had been warned to use the Ekavian variant by the judge. The applicant lodged an appeal with the Constitutional Court alleging he had been discriminated against since the other lawyer, an Ekavian speaker, had not been given any warnings during the impugned hearing. The Constitutional Court rejected the appeal.
Law – Article 1 of Protocol No.12:
(a) Applicability
Article 1 of Protocol No.12 was applicable as the applicant’s complaint fell under one of the categories envisaged by the Explanatory Report of that Article, namely potential discrimination in the enjoyment of a right which might be inferred from a clear obligation of a public authority to behave in a particular manner under national law.
(b) Merits
(i) Whether there was a difference in treatment
As the applicant and the Government fundamentally disagreed as to what had actually happened, the Court gave precedence to the transcript of the hearing. The transcript contained no reasons as to why the applicant would have had to be warned of anything at all in this context. Nevertheless, there had been a warning addressed to the applicant to use the official language in the proceedings, the clear implication being that Ijekavian was not accepted as such, while, at the same time, the other, Ekavian speaking, lawyer, who had acted on behalf of the victim, had been given no such warning. Moreover, there had been nothing in the transcript to indicate that the investigating judge had asked the applicant to reformulate any of his questions in order for the witness to be able to understand them. The applicant had therefore been treated differently from the Ekavian speaking lawyer, with this difference being based on his use of Ijekavian as one of the two variants of the Serbian language in equal official use domestically.
(ii) Whether there was a comparable situation
The applicant as defence counsel and an Ijekavian speaker of the Serbian language and the lawyer acting on behalf of the victim as a speaker of the Ekavian variant had been persons engaged in essentially the same activity, namely acting on behalf of their clients in the course of criminal proceedings and therefore were considered as persons in analogous or relevantly similar situations.
(iii) Whether there was an objective and reasonable justification
The Government had offered no explanation as to why such treatment would have been legitimate, reasonable or proportionate. Although it was legitimate for a State Party to the Convention to regulate matters involving the official use of a language in court proceedings and, mutatis mutandis, to different variants of the same language, there could not have been an objective and reasonable justification for the applicant being treated differently from another lawyer in an analogous situation, based on his use of Ijekavian. The margin of appreciation could only have been relevant in terms of possible linguistic policy choices but not in a situation where, such as in the present case, there had been a failure on the part of a judge to implement the undisputed interpretation of the already existing legislation on this matter.
Conclusion: violation (unanimously).
Article 6 § 1:
The Constitutional Court had refused to deal with the applicant’s appeal but had not clarified why the legal preconditions for dealing with this appeal had not been fulfilled. In particular, it had not explained why the impugned conduct of the investigating judge had not been a matter that could be challenged before it. Moreover, the Constitutional Court had not made it clear what the appropriate course of action for the applicant would have been in his attempts to obtain redress for the discrimination of which he complained. Lastly, although it might be sufficient for a higher court to dismiss an appeal by referring only to the legal provisions providing for that procedure, in the instant case, there had been no prior judgment or a hearing on the complaint before the case was brought to the Constitutional Court, nor was there any prior relevant jurisprudence of the Constitutional Court, notably in the specific context of a complaint such as the present one. Moreover, the issues raised by the applicant in his constitutional appeal had been significant, concerning as they did discrimination in the proceedings before a court of law. The Constitutional Court had therefore not complied with the requirement that the national courts are obliged to examine main claims with particular care and rigour.
Conclusion: violation (unanimously).
Art 41: EUR 2,000 in respect of non-pecuniary damage.
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