A scientist was denied the title of forensic expert due to a ministerial decision decause of his posts on his personal blog. Violation of freedom of expression and fair trial due to lack of hearing.

JUDGMENT

Cimperšek v. Slovenia 30.6.2020 (no.  58512/16)

see here  

SUMMARY

The case concerned the rejection by the Minister of Justice of Mr Cimperšek’s application to become
a court expert owing to a lack of the required personal qualities. The Minister referred to the
contents of Mr Cimperšek’s blog and emails he had sent to complain about the work of the Ministry.

The Court found a violation of the right to a fair trial because the first-instance court had rejected
Mr Cimperšek’s request for an oral hearing. That had been despite the fact that the applicant had
aimed to challenge the Minister’s decision by adducing witness evidence to show his suitability as a
court expert and challenging the causal link between his fitness for that role and his blog and emails.
Furthermore, the first-instance court, the only one which had had jurisdiction to consider the facts
and law of the case, had not provided clear reasons to justify its reliance on a legal provision which
allowed it to reject a request for a court hearing.

The fact that the blog and email comments had been cited as the direct reason for rejecting
Mr Cimperšek’s application to be a court expert had also resulted in an unjustified interference with
his right to freedom of expression and a violation of Article 10.

PROVISIONS

Article 6 § 1

Article 10

PRINCIPAL FACTS

The applicant, Jernej Cimperšek, is a Slovenian national who was born in 1960 and lives in Ptuj
(Slovenia).

In 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.

He passed the test and was waiting to take his oath in 2014, when the Minister of Justice refused his
application as he did not have the personal qualities required to be an expert under the Court Act.
The Minister found that comments in the applicant’s blog, which was about social and political
issues, and in emails to other candidates, which were about delays in the oath ceremony, had been
offensive and incompatible with the work of a court expert.

Mr Cimperšek contested this decision in the courts, alleging that it had breached his freedom of
expression. He also argued that the assessment of his personal qualities should not be limited to his
emails and blog and requested that the court hear witnesses on his moral character and about the
fact that the blog was read only by his friends.

The Administrative Court dismissed his claim in 2015, upholding the Minister’s conclusion about his
fitness to be a court expert. It also refused the applicant’s request for a hearing, essentially referring
to the Administrative Disputes Act setting out the rule that new facts and evidence were not
relevant for the decision. The Supreme Court rejected an appeal on points of law while the
Constitutional Court decided in 2016 not to accept a constitutional complaint for consideration.

THE DECISION OF THE COURT…

Article 6 § 1

The Court found that Article 6 applied under its civil limb to Mr Cimperšek’s complaint, which was
therefore admissible. While there was no right in Slovenia’s legal system to acquire the title of court
expert, Mr Cimperšek had been entitled to a lawful procedure for the examination of his application
for that role and had had the right to challenge the Minister’s decision before the judicial
authorities. Moreover, if he had acquired the title, he would have been able to exercise a paid public
function.

On the merits, the Court found that the first-instance court, the Administrative Court, had been the
only one with full jurisdiction to consider the facts and law involved. However, the only evidence it
had referred to was the Minister’s decision and it had refused the applicant’s request for a hearing.
That request had been made because the applicant had wanted to present factual information about
his character pertinent to his candidacy as a court expert, through the testimony of witnesses. He
had also challenged the causal link between his writing on the blog and the quality of his work as a
court expert. The issues before the Administrative Court had thus related to facts that could be said
to have been relevant for the outcome of the proceedings and which the parties had disputed.

The Administrative Court’s rejection of the applicant’s request had been based on the Administrative
Disputes Act. However, the court had not stated which evidence or facts it had considered and why
they were irrelevant. It was thus difficult for the Court to ascertain how the court’s reasons for
dismissing the request had been interpreted against the factual background of the case.

The Court concluded that there had been a violation of Article 6 § 1 on account of the lack of an oral
hearing in the proceedings before the Administrative Court.

Article 10

The Court found that the applicant had suffered an interference with his rights protected by this
provision of the Convention. On the basis of the fact that before the Minister had refused his
application, the applicant had succeeded in the examination to become a court expert and had been
invited to take the oath, and the fact that the Minister had based his decision exclusively on the
content of the applicant’s blog and emails, the Court considered that the decision in question had
essentially related to the exercise of freedom of expression, and not access to public service.

Examining if there was any Convention-compliant justification for the interference, the Court noted
that the Minister had not referred to any particular blog post or email passage, or specified the
language used by the applicant in those writings which he had considered to be offensive.
The absence of such reasoning was particularly noteworthy given that the Minister had previously
found no obstacle to the applicant’s becoming a court expert. The Minister had also considered that
the dismissal of the applicant’s application had not limited his right to freedom of expression.

The Administrative Court had also remained silent on the applicant’s right to freedom of expression
and had not addressed his arguments on that issue. It had in no way balanced that right against the
public interest allegedly pursued by the Minister’s decision and there had thus not been an effective
and adequate judicial review of the interference in question.

Nor could the Court accept an argument by the Government that the Minister’s decision had been
necessary to secure morals and the reputation of court experts: there had been no detailed reasons
in the Minister’s decision or the Administrative Court’s judgment as to why the applicant’s exercise
of his right to free expression had been offensive and incompatible with the work of a court expert.
Neither the Minister nor the Administrative Court had carried out any assessment of whether a fair
balance had been struck between the competing interests at stake and the Court had thereby been
prevented from effectively exercising its scrutiny as to whether the domestic authorities had
implemented the standards established in its case-law on the balancing of such interests.

That was sufficient for it to conclude that the interference with the applicant’s freedom of
expression had not been “necessary in a democratic society” and that there had been a violation of
Article 10.

Just satisfaction (Article 41)

The Court held that Slovenia was to pay the applicant 15,600 euros (EUR) in respect of
non-pecuniary damage and EUR 2,812 in respect of costs and expenses.


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