During a hearing, the complainant, as the general representative of a father in a proceeding on custody of minor children, objected that the magistrate was biased. He was subsequently called on by a resolution to justify the statement. The written justification of the objection of bias was found by both the district and regional court to be grossly insulting under § 53 par. 1 of the Civil Procedure Code, and the complainant was given a disciplinary fine. The complainant contested both decisions before the Constitutional Court.
With reference to its case law and that of the European Court of Human Rights the Constitutional Court pointed out the general principles for possible restriction of the freedom of speech in particular in the case of “hybrid statements” (statements that combine a factual basis and an element of evaluation). In connection with the criticism of courts and judges, when evaluating whether the statements in question are exaggerated in view of the demonstrated factual basis, the Court emphasized the following factors: (1) against whom the criticism is directed, (2) who is criticizing, (3) what, (4) where, and (5) in what form. The Court then applied these to the adjudicated matter.
In the Constitutional Court’s opinion, it was to the complainant’s advantage that he acted in the position of a general representative (the criterion of “who”), and was thus in a similar position to an attorney, whose statements before a court are accorded special protection. On the other hand, however, these representatives are also subject to a requirement of professional conduct and control of their emotions before the court, especially because they are not a party to the proceeding, who is personally affected by the matter.
The present matter did not involve public criticism (the criterion of “where”), as it concerned correspondence with the court. However, it speaks against the complainant that he criticized a specific person, the judge (the criterion of “against whom”), not the judicial branch as such, or a court decision as the result of decision-making activity. Most of the complainant’s statements had nothing to do with the judge’s professional actions, but were directed purely at her private and family life (the criterion of “what”). Moreover, the complainant’s statements were in writing (the criterion of “in what form”), so this was not spontaneous speech, which, because of its immediacy and possible impulsiveness, enjoys greater protection.
As regards the statements concerning the judge’s alleged bad mental health, the Constitutional Court pointed out that such criticism must be based on objective grounds. However, the complainant did not present any objective justification. Therefore, the Constitutional Court concluded that the complainant’s statements concerning the judge’s mental health and deviant behavior did not have sufficient support in a factual basis, and at the same time the statements were so insulting that they amounted to excessive speech, which does not enjoy constitutional law protection under Art. 17 of the Charter of Fundamental Rights and Freedoms and Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
In conclusion, the Constitutional Court also added that the complainant’s statements obviously exceeded the bounds of generally recognized rule of good manners, and were in and of themselves sufficient to discredit the person of the deciding judge. Under the case law of the ECHR, such pejorative, even vulgar expressions are protected only exceptionally, for example, if they are provoked by similarly or equally sharp statements on the part of the judge directed at the party to the proceedings or his legal representatives [the “retaliatory” function (counterattack, Gegenschlag) of freedom of speech].