Last Updated on November 2, 2019 by LawEuro
Communicated on 13 March 2018
FOURTH SECTION
Application no. 58512/16
Jernej CIMPERŠEK
against Slovenia
lodged on 5 October 2016
STATEMENT OF FACTS
1. The applicant, Mr Jernej Cimperšek, is a Slovenian national, who was born in 1960 and lives in Ptuj. He is represented before the Court by Ms T. Cimperšek, a lawyer practising in Celje.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant holds a masters degree in construction science relating to natural disasters.
4. On 25 April 2013 he applied for the title of court expert for the assessment of the effects of the natural and other disasters (hereinafter “the licence”).
5. On 27 August 2013 the Ministry of Justice (“the Ministry”) issued a decision inviting the applicant to undergo a test in which his professional knowledge would be examined. As regards other criteria, the decision noted that the applicant submitted all the requested documents.
6. The applicant was subsequently examined by a six-member commission composed of experts in the field.
7. On 19 May 2014 the Ministry 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 in which he complained about the delays in the proceedings and asked that he be able to take the oath before the summer holidays.
9. The taking of the oath was first scheduled for 4 July 2014 but subsequently rescheduled for 16 July 2014.
10. 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.
11. On 4 July 2014 the Ministry informed the applicant of its intention to dismiss his application for licence referring to the reasons which were later also cited in its decision, including the fact that the applicant had expressed certain opinions on his blog (see paragraph 12 below). The applicant, represented by a lawyer, replied to this letter, arguing that the Ministry’s dismissal of his application at this stage would be characteristic of an authoritarian state and that the Ministry had taken criticism as an offence. The applicant also alleged that his blog was insignificant, had no intention to offend and was unrelated to his profession.
12. On 21 August 2014 the Ministry dismissed the applicant’s application for licence. It referred to the applicant’s complaints about the Ministry’s work and noted that after the receipt of the complaint of 1 July 2014 (see paragraph 10 above), its officials had learned from the Internet of the applicant’s blog entitled “politics, kitchen and women”. The Ministry noted, inter alia, that the applicant “not only writes socially critical columns but also writes offensively of the state bodies, visible representatives of political and social life and certain other persons”. On the basis of this blog, of which the Ministry had learned only after it had invited the applicant to take the oath, and of his complaints, some of which he had circulated by email, the Ministry concluded that the applicant did not have the personal qualifications required to be a court expert. As regards the applicant’s right to freedom of expression, the Ministry noted that the dismissal of his application did not limit his freedom of expression but resulted from the applicant’s failure to satisfy the conditions required to grant his licence.
13. On 22 September 2014 the applicant lodged a claim before the Administrative Court disputing the Ministry’s decision and alleging that the Ministry should have accepted the criticism instead of violating his statutory and constitutional rights, including his right to freedom of expression. He also proposed that a number of witnesses be hard with a view to prove that he was personally qualified for the positon of court expert.
14. On 5 March 2015 the applicant filed his pleadings and requested that a hearing be held in his case. He argued that his right to express his opinion should have been respected and disputed that his writing on the blog was in any way relevant to a court expert’s work.
15. On 7 April 2015 the Administrative Court delivered a judgment finding that the title of court expert was given at the moment a candidate took an oath before the Minister of Justice. Therefore the Ministry’s decision that the applicant had not had the required personal qualifications was not belated. Finding that the Ministry conducted the proceedings properly, the Administrative Court considered it unnecessary to examine the applicant’s remaining arguments and evidence and to hold a hearing. The court, referring to section 73 of the Administrative Court Act (see paragraph 21 below), noted that no appeal was available against its judgment.
16. On 20 May 2015 the applicant lodged an appeal on points of law before the Supreme Court. He argued that his freedom of expression had been violated, that a causal link between the impugned conduct and the profession in question had not been established, that an appeal should have been allowed against the Administrative Court’s judgment and that the latter should have held a hearing and used its full jurisdiction to review the case.
17. On 16 September 2015 the Supreme Court rejected the applicant’s appeal on points of law finding that he had failed to demonstrate an important legal issue or very significant consequences resulting from the impugned judgment.
18. On 23 November 2015 the applicant lodged a petition for constitutional review of section 73 of the Administrative Disputes Act (see paragraph 21 below) and a constitutional complaint. He essentially repeated the complaints he had made before the Supreme Court and argued that the Supreme Court had failed to examine his arguments. He further alleged that considering that freedom of expression had been at stake, the lower courts should have conducted proper proceedings and examined the evidence.
19. On 19 April 2016 the Constitutional Court rejected the applicant’s petition for constitutional review on the grounds that the applicant lacked legal interest and decided not to accept the applicant’s constitutional complaint for consideration, pursuant to section 55b(2) of the Constitutional Court Act (see paragraph 22 ).
B. Relevant domestic
20. According to section 87 of the Courts Act (Official Gazette no. 76/07 with relevant amendments), the court expert must fulfil the following conditions. He or she (i) must have a citizenship of Slovenia or certain other European states and an active command of the Slovenian language, (ii) must have the legal capacity to act, (iii) must have the required personal qualifications, (iv) should not be criminally convicted of 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 working experience in the particular field of expertise, and (vii) should not carry out activities which are incompatible with the position of court expert.
21. Section 73 of the Administrative Court Act (Official Gazette, no. 105/06) provides, in so far as relevant, as follows:
“(1) An appeal can be lodged against a judgment in which the Administrative Court established the facts differently from the defendant and changed the impugned decision accordingly …”
22. The relevant provisions of the Constitutional Court Act are set out it Krajnc v. Slovenia (no. 38775/14, § 27, 31 October 2017).
COMPLAINTS
23. The applicant complains under Article 6 of the Convention that no hearing was held before the first-instance court. He also complains under Article 10 that his application for licence was dismissed because of the opinions he had expressed in his blog.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (see, mutatis mutandis, Juričić v. Croatia, no. 58222/09, § 56, 26 July 2011)?
2. Assuming Article 6 to be applicable, did the applicant have a fair hearing in the determination of his civil rights and obligations? In particular, did Article 6 § 1 of the Convention require the holding of a public hearing in the present case?
3. Has the dismissal of the applicant’s application for the title of court expert amounted to an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention (see, mutatis mutandis, Kudeshkina v. Russia, no. 29492/05, §§ 79-80, 26 February 2009)?
4. If so, was that interference necessary in terms of Article 10 § 2 of the Convention? In particular, were the reasons adduced by the authorities to justify the interference complained of relevant and sufficient and were adequate safeguards afforded to the applicant (see Kudeshkina v. Russia, no. 29492/05, §§ 82-84, 26 February 2009, and Baka v. Hungary [GC], no. 20261/12, §§ 160-161, ECHR 2016)?
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