Marko TESIC against Serbia

On September 30, 2025, the European Court of Human Rights (hereinafter: the Court) issued a judgment in the case, and on November 4 of the same yearMarco Tesic against Serbia, number 61891/19.

It's a verdictbroughtseven-member Council by majority vote (six votes for, one against).

THE CIRCUMSTANCES CASES

The applicant (hereinafter: the applicant) was the defense attorney for Lj.V, accused of the criminal offense of attempted murder, in criminal proceedings K. 655/13, which was conducted before the High Court in Belgrade. At the main hearing held on December 23, 2016, the applicant raised objections to a number of alleged irregularities in the work of the court. During that presentation, the president of the panel warned him not to disturb the peace in the courtroom and drew his attention to the fact that he is obliged to act according to her orders. After that, the applicant pointed out to the panel an objection to the conduct of the main trial by the president of the panel, referring to Article 368, paragraph 1, item 2) of the Code of Criminal Procedure.

On February 22, 2017, the applicant submitted written objections regarding the events at the aforementioned hearing. Due to several statements in that submission, on March 20, 2017, the High Court in Belgrade issued decision K. 655/13, which fined the applicant 80,000 dinars. The applicant filed an appeal against that decision, which was rejected by the decision of the High Court in Belgrade Kv. 1300/17 of May 9, 2017.

Unsatisfied with the outcome of the proceedings before the regular courts, the applicant filed a constitutional appeal against these decisions, complaining of violations of rights from Art. 32, 36, 46, 60 and 67 of the Constitution of the Republic of Serbia and rights from ratified international conventions.

By decision Už-6161/2017 of May 21, 2019, the Constitutional Court rejected his constitutional appeal, judging that the applicant's allegations cannot be accepted as well-founded constitutional reasons for the violation of the indicated rights, but that the Constitutional Court, as a court of instance, should once again assess the legality of the contested acts.

COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT

The applicant submitted an application to the Court on November 21, 2019.

In the petition, he complained about the violation of freedom of expression from Article 10 of the Conventionfor the protection of human rights and fundamental freedoms (hereinafter: the Convention), as a result of the imposition of a fine in respect of his allegations in written remarks on the conduct of the president of the panel during the presentation of evidence at the main hearing.

THE DECISION THE COURT

The court assessed that the imposition of a fine on the applicant constituted an interference with his right to freedom of expression.

Furthermore, the Court concluded that the interference in question had a legal basis in Article 231.  of the Code of Criminal Procedure, which prescribes fining the defense attorney if he insults the court or the participants in the proceedings, and that it aimed at the legitimate goal of preserving the authority of the judiciary.

Examining whether the subject interference with the applicant's right is necessary in a democratic society, the Court pointed out that the objections expressed during the criminal proceedings by the applicant were directly related to the conduct of the trial and were related to the zealous defense of the client. Those remarks were contained in the written submission of the applicant, in which he complained that despite repeated requests, the objections were not entered into the minutes. The remarks were not made public or forwarded to the public.

Although the applicant's submission was strongly worded and sarcastic in tone, the Court found that the remarks related to the alleged irregularities in filing objections and not to the personal integrity of the judge and that there was no evidence that their sole purpose was to insult or undermine the authority of the court. The court also noted that the previous warnings given to the applicant during the search were related to maintaining order in the courtroom and entering objections into the minutes.

According to the Court's assessment, the applicant's remarks represented real procedural complaints for the purpose of adversarial discussion and were not exclusively offensive or sarcastic, and even if unconventional in tone, the use of "biting tone" in procedural submissions has been repeatedly found to be compatible with Article 10 of the Convention (seeCeferinagainst Slovenia, number 40975/08, paragraph 61.).

The court noted that the fine imposed on the applicant was at the upper limit of the applicable range prescribed by the Code of Criminal Procedure, and that, although the imposition of such a fine had no consequences for the applicant's right to practice his profession, it is unacceptable that in the case of a lawyer hired to ensure the effective defense of his clients, the amount of that fine exceeds his two-month reported income.

The Court found that the domestic courts did not provide "relevant and sufficient" reasons, nor did they strike a fair balance between the need to preserve the authority of the judiciary and the applicant's right to freedom of expression. The interference was therefore not "necessary in a democratic society" within the meaning of Article 10 § 2 of the Convention.

Consequently, the Court found that there had been a violation of Article 10 of the Convention.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the applicant the amount of 680 euros in compensation for material damage, and in the name of costs and expenses the amount of1150euros.

SEPARATE OPINION JUDGESSANCIN

JudgeSancin stated that she agreed with the opinion of the majority that the written submission of the applicant - a lawyer who zealously defends his client in criminal proceedings - was not purely offensive or sarcastic, but she did not agree with the opinion of the majority that the imposed fine represented unnecessary interference in a democratic society in the sense of Article 10, paragraph 2 of the Convention. In her opinion, the imposition of such a sentence was within the scope of the government's discretion to preserve the authority of the judiciary.

According to the judgeSancin, the courts must enjoy public confidence in order to fulfill their role and must be protected from insults that destroy their credibility. In this context, it is important to note that offensive language was used in the applicant's written submission made two months after the hearing. Although the Court in some cases interpreted the fact that the contested statements were given in written form in favor of the applicant due to the limited scope of such statements, it did not establish a violation of the right to freedom of expression in all cases. JudgeSancin pointed out that, in the case of giving similar statements in a live broadcast, the Court considered that the applicants did not have the opportunity to reformulate, clarify or retract their statements, as is the case in written submissions. JudgeSancin expressed the view that lawyers should be more careful when preparing written submissions and not to present personal insults to judges that do not benefit the clients. In the judge's opinion, the mere submission of the petition to the Court makes the contested statements public, as anyone can find them on the Internet.

JudgeSancin reminds that the contracting states have a wide "field of free assessment" regarding the existence of an "urgent social need" for interference. Criticism of the judge, and not only her acts, accusing her of procedural malice, was presented by a male lawyer against a female judge, and it was aimed directly at the president of the panel because he asked for a five-minute break during the trial so that "the heated passions of the panel president would cool down" and he repeated those same arguments in the written submission, and he could mention that construction without referring to the president of the panel.

JudgeSancin points out that by using the phrase "boiling passion" the applicant used highly gender-tinged language, and that the applicant's claim that he wanted to "call for unity" as political and religious leaders is unacceptable, because judges are obliged to judge, not to make compromises. The Court's conclusions overturn the assessment of domestic judges, who confirmed that his way of expressing himself is in contradiction with professional standards, ethical guidelines and the Code of Criminal Procedure.

Finally, the judgeSancin considers that the fine imposed on the applicant is not excessive, bearing in mind that there are cases in which a prison sentence or damages in the amount of several tens of thousands of euros have been imposed.

Consequently, the judgeSancin considers that the domestic authorities achieved a balance between freedom of expression and preserving the authority of the judiciary and that there was no violation of the applicant's right to freedom of expression provided for in Article 10 of the Convention.