Pisanski v. Croatia and its Aftermath

Lawyers
play a significant role in facilitating access to justice, protection of rights,
and ensuring state accountability. However, across Europe, and beyond, lawyers
are increasingly targeted for doing their jobs—defending clients, criticising
judicial decisions, and speaking out. This worrying trend not only threatens
the independence of the legal profession but also undermines the broader
justice system.

Against
this backdrop, there has been growing debate about the role of lawyers within
the European Convention on Human Rights (ECHR) system, as well as the
protection of the rights of lawyers to effectively fulfil their advocacy
functions. On 12 March 2025, the Council of Europe (CoE) adopted the first-ever
international treaty aiming at protecting the profession of lawyers: the Convention for the
Protection of the Profession of Lawyer. The Convention will
be opened for signature on 13 May 2025 during the annual session of the
Committee of Ministers of the CoE.

According
to the Explanatory Report of the Convention, it
was prompted by a growing number of attacks on the legal profession, including
harassment, threats, physical assaults, and interference with the exercise of
professional duties. The protection of lawyers’ freedom of expression is
specifically addressed under Article 7 of this Convention.

In parallel
with this significant development, the ECtHR has already received many
applications from different member states about the protection of lawyers’ freedom
of expression in their professional capacity. The ECtHR delivered many
important judgments by emphasising the central position of lawyers in the administration
of justice, including Čeferin v. Slovenia, Radobuljac v.
Croatia, Rodriguez Ravelo v. Spain, and Morice v. France.

A notable
example from last year of interference with lawyers’ freedom of expression can
be found in the ECtHR’s judgment in Pisanski v Croatia. While
the case may appear modest in comparison to more prominent rulings, it
addresses a profoundly important issue: the right of lawyers to speak freely in
the courtroom without fear of sanction.

Pisanski v Croatia: A Case Overview

In Pisanski v Croatia, the Chamber found a violation of the freedom
of expression of lawyers under Article 10 of the ECHR. Viktor Pisanski is a
lawyer in Croatia who was fined HRK 2,000 (approximately €265) for contempt of
court after making critical remarks in an appeal he filed during enforcement
proceedings on behalf of a client. His statements were not directed at any
specific judge but concerned the interpretation of the relevant domestic law by
the Zagreb County Court. In his appeal, Pisanski stated:

“It is incredibly difficult to draw up a meaningful and
concise appeal when you are faced with someone in a position of power who,
solely because of that position, persuades ‘the subordinates’ that the sea is
red, the sky is yellow, and the sun is green…”

The ECtHR stated that the fine constituted
an interference with Pisanski’s freedom of expression. Having found that the
interference was prescribed by law and pursued a legitimate aim, the Court
proceeded to the third step of the Article 10 analysis—assessing whether the
interference was ‘necessary in a democratic society’. To conduct this
assessment, the Court relied on four guiding principles it had previously
established in Radobuljac
v. Croatia, a
case that also involved the freedom of expression of a lawyer (para. 56-61). Pisanski was not the first adverse judgment
against Croatia on this issue, and the Court drew on its existing
jurisprudence. Therefore, in Pisanski, the
ECtHR identified a repetition of the very same violation it had already
addressed in Radobuljac v. Croatia.

The four principles reaffirmed by the
ECtHR are as follows: firstly, due to the special role of lawyers, there should
be enough space for lawyers to defend their clients’ interests zealously. The
ECtHR also stated in its Morice
v. France judgment
that lawyers are protagonists in the justice system, involved both in its
functioning and in the defense of parties. Secondly, the courts are not
entitled to be free from criticism and, like other public authorities, must
tolerate a higher level of criticism than individuals. Thirdly, it is important
to differentiate between criticism and insult. Lastly, remarks of lawyers must
be assessed in context, for example, whether they are made in public or before
national courts. For statements made in court and during trials, the scope of
the freedom of expression is interpreted broadly by the ECtHR.

When the ECtHR applied these principles to
the Pisanski v Croatia case, it found that Pisanksi’s remarks
fell within the scope of protection under Article 10 of the ECHR. This was
because the sanction imposed on him stemmed from statements made in his
capacity as a lawyer, in a petition aimed at defending his client’s rights
(para. 70). Although the language used by Pisanski may have been discourteous,
the Court reiterated that Article 10 tolerates a certain degree of sharpness in
tone, especially in the context of legal representation (para. 71). It also
stressed that such expressions should be distinguished from insults or
defamatory remarks.

Accordingly, the ECtHR decided that
interference was not “necessary in a democratic society” as the domestic
authorities failed to provide “relevant and sufficient” justifications for the
fine (para. 73). According to paragraph 73 of the judgment, a fair balance was
not struck between the need to protect the authority of the judiciary,
specifically that of the courts, and the protection of lawyers’ freedom of
expression. Therefore, the sanction imposed on Pisanski was not necessary in a
democratic society.

In the judgment, the Court did not indicate
any specific remedies for the Croatian national authorities to remedy the violation.
Like the majority judgments of the ECtHR, it only described the scope of the
violation and its causes. This leaves Croatia with broad discretion to
determine the appropriate measures necessary to remedy the breach under the
supervision of the Committee of Ministers.

Execution of the Judgment: Structural
Problem or Isolated Case?

The judgment became final on 4 September
2024, and was subsequently transferred to the Committee of Ministers. The CoE’s
Execution Department classified it as a leading judgment,
which means it identifies a new or structural problem.

The recognition of lawyers’ freedom of
expression individually as a leading case in the supervision process by the
Execution Department is very valuable because lawyers represent their clients’
rights and interests, and this may extend their own freedom of expression. The
Execution Department often categorises leading cases based on the applicants’ professional
roles, such as journalists and judges. Recognising lawyers in this framework
acknowledges their critical function and the need for targeted protective
measures. In this context, it would be appropriate to consider what specific
reforms are needed to enhance protections for lawyers’ freedom of expression.

As part of the routine procedure for executing
the judgment, Croatia submitted an action
plan, which
explains its intended response to the violation, including both individual and
general measures. Regarding individual measures, Croatia explained that the
applicant has the option to seek the reopening of the impugned proceedings. Since
the ECtHR did not award any just satisfaction, the Croatian national
authorities indicated that no financial compensation would be provided.

Regarding general measures, Croatia has provided
case law of Croatian courts, including decisions from the Constitutional Court
and Supreme Court, in alignment with Pisanski v. Croatia.
However, all six judgments submitted as examples predate Pisanski
v. Croatia. This
indicates that, until now, no specific changes have been implemented in
response to the Pisanski judgment
itself.

Notably, the same underlying
problem—interference with lawyers’ freedom of expression in courtrooms—had
already been highlighted in Radobuljac
v. Croatia, which
was decided eight years prior to Pisanski. In its action
report for Radobuljac,
Croatia characterised the violation as an “isolated case” and provided sample
judgments to support that position. Based on these representations, the
Committee of Ministers closed its
supervision of
Radobuljac in 2018.  

However, Pisanski’s complaint arose after
the closure of supervision of Radobuljac
v. Croatia,
raising the question of whether the measures taken following Radobuljac were adequate to prevent similar
violations. The recurrence of the same type of violation shows that changes in
case-law alone are insufficient and that stronger, more systematic protections
for lawyers are needed. This kind of interference with the rights of lawyers is
not an isolated issue but a widespread problem affecting legal professionals in
many Member States, even in consolidated democracies.

This raises an important question: What
general measures are necessary to safeguard lawyers’ freedom of expression? This
is not only a matter of concern for lawyers in Croatia but also for those practising
in the forty-five other Member States of the CoE. Can simply providing examples
of national case-law and disseminating the Pisanski judgment be sufficient?

Civil Society’s Missing Voice: Where Are
the Bar Associations?

So far, the judgment has not received
significant attention from national actors. Under Rule 9(2) of the Rules
of the Committee of Ministers for the supervision of the execution of judgments
and of the terms of friendly settlement, NGOs and national human rights
institutions (NHRI) can submit relevant communication to the Execution
Department.

Likewise, Rule 9 allows bar associations
to submit communications regarding the execution of specific cases. However, in
the Pisanski case, no submissions have been made by
any NGOs, NHRIs, or bar associations.

Given the relevance of this case, it may
be time for the Croatian Bar Association and perhaps for other bar associations
to engage actively in the supervision process by sending Rule 9 communications
to the Committee of Ministers. For example, submitting data on how many lawyers
have faced similar penalties could shed light on the systemic nature of the
problem and influence the Committee of Ministers’ evaluation of the adequacy of
the proposed measures.

Conclusion: Turning Principles into
Practice

Pisanski
v. Croatia is just
one example among others, and it concerns the freedom of expression of a lawyer
to represent his client. Lawyers must be able to critique judicial decisions
and advocate assertively without fear of punishment. Otherwise, the entire
justice system risks being undermined.

The adoption of the Convention
on the Protection of the Profession of Lawyer represents a welcome step towards
addressing these issues at a structural level. Article 7(2) of the Convention explicitly
recognises that lawyers, individually or collectively, have the right to take
part in public discussion on judicial decisions.

But the real test lies in practice: will
states take meaningful steps to implement ECtHR judgments like Pisanski? Will professional organisations engage
proactively in the execution process to hold governments accountable?

Restrictions on the freedom of expression
of lawyers, even when affecting lawyers individually, are not isolated
incidents. Rather, they reflect a broader, systemic issue—one that requires
structural solutions and sustained institutional attention.