Fine for making a joke in court violated a lawyer’s freedom of expression

In the case of Simić v. Bosnia and Herzegovina (application no. 39764/20, 17.05.2022) the European Court of Human Rights held, unanimously, that there had been a violation of of the European Convention on Human Rights.

The case concerned a joke that the applicant, a lawyer, told in court to illustrate his criticism of the proceedings in which he was representing a client. The joke was about a professor who expected his students to provide not only the number but also the names of
the victims of the bombing of Hiroshima, and the applicant likened the way the second-instance court treated him to the way in which those students had been treated by their professor. As a result, he was fined for contempt of court.

The Court noted that the critical remarks, which had been regarded as insulting by the domestic courts, had been made by Mr Simić in the context of judicial proceedings where he was defending his client’s rights. The remarks had been made in a courtroom and not in the media, meaning that the general public had not been aware of them. Moreover, the Court did not find that Mr Simić’s remarks had amounted to a gratuitous personal attack with the sole intent to insult the members of the court. They had been aimed at the manner in which the second-instance court had applied the rules of evidence in his client’s case. While it was true that the tone of the remarks had been caustic, or even sarcastic, the use of such a tone in remarks about judges has already been regarded as in keeping with freedom of speech. 

Although the Court agreed that it was important that lawyers behaved in a discreet, honest and dignified way in order for members of the public to have confidence in the administration of justice, it also took into account that they had to be able to represent their clients effectively. 

It considered that the domestic courts had failed to give sufficient weight to the context in which the remarks had been made and had not provided relevant and sufficient reasons to justify the punishment. Finding that the domestic courts had not based their decisions on an acceptable assessment of the relevant facts, the Court concluded that the interference with the applicant’s right to freedom of expression had not been “necessary in a democratic society”. There had therefore been a violation of Article 10 of the Convention.

Reference from the official website oft he European Court of Human Rights