Backović v. Serbia (no. 2): Blurring the line between legitimate criticism and unacceptable insults by lawyers in court proceedings

By Dimitrios Kagiaros

In Backović v. Serbia (no. 2), the European Court of Human Rights’ third section (henceforth ECtHR or the Court) revisited the thorny issue of lawyers making inappropriate or caustic remarks towards judges in court proceedings. In a 5-2 judgment, the Court found that a fine for contempt of court against a lawyer criticising in acerbic terms a decision of a first-instance judge during the appeals process, did not amount to an Article 10 ECHR violation. The judgment is worth discussing mainly for two reasons. Firstly, the rationale on which the Court relied to distinguish between strongly worded but legitimate criticism of judges and unacceptable insults appears confusing, especially when considering its previous case law on similar issues. Secondly, the Court, in passing, considered whether from the perspective of judicial impartiality it is acceptable for a judge who is the target of criticism to also set the penalty in contempt of court proceedings. Its finding on this issue seems to depart from previously established standards relating to judicial impartiality.

Facts of the case

The applicant was a lawyer serving as a city councillor. Following a dispute on whether his term and that of 15 other councillors had ended, they were removed from their positions. The Constitutional Court found in the applicants’ favour, noting that their removal from the council amounted to a violation of their electoral rights. The Constitutional Court instructed the relevant Administrative Court to reinstate the councillors. The Administrative Court made such an order. However, the local court of first instance in a single-judge procedure refused to reinstate the councillors finding that the judgment of the Administrative Court was not an ‘enforceable document’. In his appeal against this finding, the applicant accused the first-instance court judge of ‘pen-pushing’ and noted that her judgment was ‘supreme nonsense’. The applicant also noted that the judge’s reasoning was ‘incompatible with the actions of a professional judiciary in a state characterised by the rule of law’. Finally, and adopting a sarcastic tone, the applicant referred to the judges of the first instance court as ‘legal geniuses and legal giants’ and concluded that challenging the status and expertise of the Administrative Court ‘would be funny if it were not sad’. These statements led to the same court (and the same judge) fining the applicant 910 euros for contempt of court. Following an appeal, this fine was upheld by the higher courts, including the Constitutional Court. The applicant complained to the ECtHR that the fine was in violation of Article 10. Notably, a few months after the statements were made and the fine was imposed the applicant started serving as an Assistant Minister of Justice for Serbia.

The judgment

The Court accepted that the interference with the applicant’s freedom of expression was prescribed by law and pursued the legitimate aim of maintaining the authority and impartiality of the judiciary. In assessing whether the restriction was necessary in a democratic society, the Court made note of the distinction between legitimate criticism that is protected under Article 10 and insults. If the statements were made with the sole intent of insulting the court or its members ‘an appropriate sanction would not, in principle, constitute a violation of Article 10’ (para 37). While the Court acknowledged that the applicant’s remarks ‘were made in the context of internal communication between him as a lawyer and the court, of which the general public was not aware’, it concluded that the applicant’s statements were made in ‘belittling and impertinent terms’ going beyond the acceptable limits of criticism suggesting that the judge’s actions constituted an abuse of office. Therefore, the domestic courts’ finding that the statements were insults rather than legitimate criticism was not ‘unreasonable’ and, as a result, the reasons on which the domestic courts relied to justify the interference with freedom of expression were relevant and sufficient. Finally, the fine imposed was not disproportionate. For these reasons the majority found no violation of Article 10, while judges Hüseynov and Pavli dissented.

Commentary

Legitimate Criticism vs Unacceptable Insults

To evaluate the judgment in Backović (no. 2), it may be worth revisiting the Court’s key case law relating to lawyers using inappropriate language or critiquing judges during court proceedings. The relevant leading case is the Grand Chamber judgment in Morice v. France (2015). In assessing the proportionality of penalising lawyers for remarks made against judges, the Court emphasised that judges when acting in their official capacity may ‘be subject to wider limits of acceptable criticism than ordinary citizens’ (para 131). However, while speech that communicates concerns on the functioning of the judiciary falls within the public interest, the Court held that the judiciary ‘must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that  judges who have been criticised are subject to a duty of discretion that precludes them from replying’ (para 128 emphasis added). In the Court’s understanding, the ‘authority of the judiciary’ encompasses ‘the notion that the courts are, and are accepted by the public at large as being, the proper forum for the resolution of legal disputes […]; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function’ (para 129, emphasis added). Finally, the Court concluded that while lawyers cannot ‘proffer insults […], the use of a tone that was not insulting but caustic, or even sarcastic, in remarks about judges was regarded as compatible with Article 10’ (para 139). In subsequent cases, the Court has placed emphasis on whether the impugned lawyers’ statements were made publicly. Thus, in Radobuljac v. Croatia (2016) the Court paid particular attention to the fact that the lawyer made the remarks in question ‘in a forum where his client’s rights were naturally to be vigorously defended [and…] were confined to the courtroom, as opposed to criticism of a judge voiced in, for instance, the media’. The Court noted the remarks did not constitute ‘an open and overall attack on the authority of the judiciary, but rather internal communication between the applicant as an advocate and the appellate court, of which the general public were not aware’ (para 62). This contributed to the Court’s finding of an Article 10 violation. The Court reached similar conclusions more recently in Lutgen v. Luxembourg (2024), where it found that the criminal conviction of a lawyer for making disparaging comments against a judge in a letter to ministers violated Article 10, partly on the basis that the letter had not been publicised (para 70).

Based on this analysis, it is difficult not to view the judgment in Backović (no.2) as somewhat of a retreat from these standards. The key distinction with the previous cases is that the Court classified the applicant’s remarks as insults rather than legitimate criticism or acceptable value judgments. The reasons on which the Court relied for this finding, however, are not helpful in establishing clear principles as to when sarcastic comments will ‘cross the line’ and become insulting. The Court justified its classification of the comments as insults on the fact that the applicant did not limit his comments to how the judge had conducted the proceedings but had belittled her and challenged her experience, expertise and professionalism (para 42). Additionally, the Court emphasised that the applicant could have communicated the same points ‘without using such language’ and concluded ultimately that courts in the respondent state were better placed to determine whether the language used was insulting (para. 42). However, this conclusion seems incongruent with the Court’s aforementioned case law, which recognised that sarcastic comments may be permissible particularly where they were not made publicly. Additionally, it is important here that the legitimate aim on which the respondent state relied to justify its interference with freedom of expression was upholding the authority of the judiciary (rather than upholding the Article 8 rights of the judge, for instance). As explained in Morice, the notion of the authority of the judiciary is premised on how the ‘public at large’ view the judiciary. Therefore, interfering with freedom of expression to penalise the speaker for speech to which the public did not have access, might fall short of the principle that restrictions to free speech must be proportionate and suitable to achieve the pursued aim. That is not to say that all speech made in court proceedings to which the public does not have access should enjoy automatic Article 10 protection. However, in this case, while the applicant’s comments were admittedly unprofessional, they did not include, for instance, vulgar name calling, attacks on the judge based on a personal characteristic or threats of violence which would without a doubt have undermined the judicial process and fallen short of the standards of expression protected under Article 10.

For these reasons, it is difficult to see how the applicants’ comments could amount to ‘gravely damaging attacks that are essentially unfounded’ as established in Morice and previous case law. In relation to the statements being ‘essentially unfounded’ in particular, the Court could have been more sensitive to the context of the case, namely the seriousness of a judge refusing to enforce a judgment and the frustration this would cause to a lawyer representing himself and others in these proceedings who has already secured a favourable decision by the Constitutional Court and was faced with a denial in its enforcement. These points were emphasised in the well-measured joint dissenting opinion of judges Hüseynov and Pavli.

As a result, the present case muddies the waters on when sarcastic comments will be acceptable in judicial proceedings. The line the Court draws suggests that in future even sarcastic comments that were previously permissible (on this also see Simić v. Bosnia and Herzegovina (2022) discussed on this blog) may perhaps not be in the future, even when the public is not made aware of them. This seems to move further away from the Court’s oft repeated mantra that Article 10 protects not only speech that is favourably received, but also speech that shocks, offends or disturbs (Handyside v. UK, para. 49).

Therefore, the Court’s overall approach in this case blurs the boundaries between acceptable criticism and unacceptable insults in the context of court proceedings. The lawyer’s comments, while undeniably improper in tone, did at least have some factual basis and were not made publicly so as to damage the public’s perception on the authority of the judiciary, something which ought to have weighed heavily in the Court’s proportionality analysis if the Court had followed its approach from previous cases.

Judicial Impartiality in contempt of court proceedings

At the domestic level, the applicant challenged the fine by questioning the fairness of proceedings under Article 6, while the application to the ECtHR was reframed as a free speech issue under Article 10 (para 44). This relieved the Court from examining the Article 6 dimension of the case. Nonetheless, in passing, the Court addressed the fact that the judge who was the target of the applicant’s criticism also made the decision to fine the applicant for his conduct. In this respect, the Court found that the fairness of proceedings had not been undermined (ibid.). Previously, in Deli v. the Republic of Moldova(2019), the court had found a violation of Article 6 due to a lack of both subjective and objective impartiality where a judge who had been criticised by the applicant in court proceedings had also convicted him of contempt. In that case, and referring to objective impartiality in particular, the Court concluded that ‘in such a situation the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench’ (para 43). Since the present case was not brought under Article 6, the Court did not expound on these principles but ultimately was satisfied that the applicant had been able to seek judicial review of the fine and the first instance judge’s finding was upheld by both the second-instance court and the Constitutional Court.  Thus, the fact that the judge’s finding of contempt was subjected to review cured any potential issues of fairness and impartiality. It is notable that this finding differs from the Court’s approach in Kyprianou v. Cyprus (2005), where in similar circumstances it had held that the failure of the Supreme Court in Cyprus to quash the decision of the lower court for lack of impartiality contributed to the finding of an Article 6 violation (para 134). It might be valuable in a future appropriate case for this point to be clarified.

Conclusion

Backović v. Serbia (no. 2) is illustrative of the difficulties courts face in delimitating and classifying different categories of speech. The line between insulting and highly critical but acceptable speech is arguably subjective, and this, one could argue, would justify the Court deferring to the domestic courts who handled this claim. However, a more principled stance may have been necessary here, in line with the dissenting opinion, that gave more weight to the context in which the statements were made, rather than viewing them in isolation, along with the distinction the Court has drawn previously between comments made inside and outside the courtroom.