Information Note on the Court’s case-law 262
Judgment 5.5.2022 [Section I]
Freedom of expression
Justified civil defamation award, after former President’s statement that an advocate needed psychiatric treatment for implicating him in a criminal complaint: no violation
Facts – The applicant is a former President of Croatia. In the context of a criminal complaint filed in France, an advocate of Croatian origin, Mr Jurašinović, made comments to the effect that the applicant was an accomplice in the attempted murder and extortion of his client. The complaint and the alleged links to the applicant were subsequently published in two newspaper articles. When questioned by journalists about those articles, the applicant denied the links, and suggested that Mr Jurašinović visit a psychiatric hospital when he came to Croatia, where people such as him could receive effective treatment. That statement was reported by a number of Croatian media outlets.
Subsequently, Mr Jurašinović brought a civil action for defamation against the applicant before the Croatian domestic courts, and was awarded compensation for non-pecuniary damage as well as costs of proceedings. The applicant appealed unsuccessfully against that judgment up to the Constitutional Court.
Law – Article 10: The judgment had constituted an interference with the applicant’s right to freedom of expression. It had been prescribed by law and had pursued the legitimate aim of protecting the reputation or rights of others. The Court therefore had to determine whether it had been “necessary in a democratic society”.
The applicant’s statement – that Mr Jurašinović needed psychiatric treatment – had reached the level of seriousness capable of bringing Mr Jurašinović’s rights under Article 8 into play. The applicant had made that statement when he had been the State President, and it had been widely distributed by various media outlets. Regardless of whether it had to be understood literally or metaphorically, it had not only been capable of tarnishing Mr Jurašinović’s reputation, but also of fomenting prejudice against him in his professional and social environments. By way of observation, the Court also considered that referring to a need of psychiatric treatment and using it as an insult was disrespectful of persons with mental health issues.
In cases concerning a conflict between the right to reputation and the right to freedom of expression, domestic courts hearing defamation claims were expected to perform a balancing exercise between those two rights, in line with the criteria established in the Court’s case-law. Domestic courts might also be required to take into account certain additional criteria: in this case, for example, the applicant’s status as a politician and as a high-ranking State official, and on the other hand, Mr Jurašinović’s status as an advocate, might be of importance. Although the civil courts had recognised that the present case had concerned two conflicting rights, they had made no reference to the relevant criteria developed in the Court’s case-law, instead examining the case only in terms of civil law. They had accordingly failed to carry out the required balancing exercise between the competing rights. Similarly, the Constitutional Court had not examined the case from a constitutional-law perspective but instead simply declared the applicant’s constitutional complaint inadmissible. The Court therefore had to carry out the required balancing act itself:
(a) The notoriety and prior conduct of the person concerned
Mr Jurašinović had not been a public figure before information regarding part of the content of the criminal complaint had been reported by the Croatian media, nor had he made any public statement regarding the applicant. The allegation which had provoked the applicant’s statement had not been made publicly; nor had it been intended for a public readership. Likewise, it could not be said that Mr Jurašinović had knowingly entered the public sphere.
(b) The content and form of the statement and its contribution to a debate of public interest
Contrary to the findings of the domestic civil courts, the Court found that the impugned statement had been a metaphor and constituted a pure value judgment, and had not therefore been susceptible of proof.
The alleged involvement of a State President in an attempted murder and/or his possible links with organised crime was undoubtedly a matter of public interest. The applicant had had a right to reply to such an accusation and to defend himself, which he had done. However, he had then gone a step further and attempted to discredit Mr Jurašinović as a person to be trusted, by an offensive statement using belittling and impertinent terms. There was nothing to suggest that the applicant could not have denied the accusations against him without using the impugned language. By personally insulting Mr Jurašinović, the applicant had made no contribution to a debate on a matter of public interest and had gone beyond the limits of acceptable criticism.
Regarding the form of the statement, the applicant had made it when he had been the State President and it had been widely distributed by various media outlets. It had thus been capable of causing greater harm to the reputation of Mr Jurašinović.
(c) The applicant’s status as a high-ranking State official and Mr Jurašinović’s status as an advocate
Regarding high-ranking State officials, on the one hand, the Court had emphasised freedom of expression. In order to protect their free speech in the exercise of their functions and to maintain the separation of powers of the State, it was acceptable in a democratic society for States to afford functional immunity to their heads of State (Urechean and Pavlicenco v. the Republic of Moldova). On the other hand, the Court had also acknowledged that, generally speaking, albeit in different circumstances, words spoken by high-ranking State officials carried more weight (see for example Peša v. Croatia; Ivanovski v. the former Yugoslav Republic of Macedonia).
Meanwhile, the Court had emphasised that lawyers play a vital role in the administration of justice and that the free exercise of the profession of a lawyer is indispensable to the full implementation of the fundamental right to a fair trial guaranteed by Article 6 (see, for example, Morice v. France [GC]).
It was also mindful of the occurrence of harassment, threats and attacks against lawyers in many Council of Europe member States. In the present case, the statement had not constituted a threat of involuntary psychiatric confinement. Nonetheless, high-ranking State officials attacking the reputation of lawyers and making them objects of derision with a view to isolating them and damaging their credibility – as the applicant had done in the present case – was often as effective as a threat in preventing lawyers from exercising their professional duties. Such statements could have serious consequences for the rights of the accused and the right of access to a court, which are essential components of the right to a fair trial guaranteed by Article 6 § 1.
Further, at the time that the impugned statement was made, Mr Jurašinović had been bound by the secrecy of the criminal investigation in France. That had precluded him from replying and placed him in an even more disadvantageous position vis-à-vis the applicant, a powerful public figure who, because of his role, had enjoyed great media attention.
(d) Consequences of the statement and the severity of the sanction
The applicant had been ordered to pay approximately EUR 6,660 in non-pecuniary damages. While the size of the award might appear substantial, the Court reiterated its findings that:
– words spoken by high-ranking State officials carried more weight and, consequently, statements made by them that were injurious to the reputation of others caused greater harm;
– the applicant’s statement, to which Mr Jurašinović had not been in a position to reply, had been widely distributed by various media outlets; moreover,
– the applicant’s statement had also been capable of having a “chilling” dissuasive effect on Mr Jurašinović’s exercise of his professional duties as an advocate.
Therefore, the award of damages had been an appropriate sanction to neutralise the chilling effect and proportionate to the legitimate aim of protecting the reputation of Mr Jurašinović.
Having regard to all the foregoing considerations, the interference had been “necessary in a democratic society”.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 6 § 1, in that the length of the applicant’s appeal proceedings before the domestic courts had been excessive and failed to meet the “reasonable time” requirement.
Article 41: EUR 2,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Peša v. Croatia, 40523/08, 8 April 2010; Urechean and Pavlicenco v. the Republic of Moldova, 27756/05 and 41219/07, 2 December 2014, Legal Summary; Ivanovski v. the former Yugoslav Republic of Macedonia, 29908/11, 21 January 2016, Legal Summary; Morice v. France [GC], 29369/10, 23 April 2015, Legal Summary)