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You are here: BAILII >> Databases >> European Court of Human Rights >> STOJANOVIC v. CROATIA - 23160/09 - Chamber Judgment [2013] ECHR 833 (19 September 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/833.html Cite as: [2013] ECHR 833 |
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FIRST SECTION
CASE OF STOJANOVIĆ v. CROATIA
(Application no. 23160/09)
JUDGMENT
STRASBOURG
19 September 2013
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stojanović v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 27 August 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
“... You behave like a communist: ‘Who is not with us is against us’... Why is it kept secret from the public that, apart from receiving a Minister’s salary, A.H. sits on another ten supervisory boards and receives a lot of money for that? ... Besides, you very well remember his statement when he said that as long as he was the Minister Stojanović would not become a professor ...”
“... I pay my own bills, while many sit on a number of supervisory boards, receive remuneration for doing so and have other privileges.”
The applicant claimed that in so doing he had not mentioned A.H. He further testified:
“I also [reminded] Dr I.V. on that occasion ... that A.H. had threatened me at a HDZ round table [on health care, on 9 October 1996] ... that I would never become a professor because I did not have the required professional or scientific qualities and [because] I was inexpert.”
“A.H.: As regards my former friend Joža Stojanović being inexpert ... [and] his slur concerning the choice of [allegedly] bad technology, that technology was chosen, in his field of expertise, radiology, by members of the Croatian Medical Association, [in particular] its radiology section, who are, by the way, regular university professors, which you Joža would never become because you do not have the professional and scientific qualities.”
“The plaintiff’s claim is well-founded in part as regards the first defendant [the publishing company] and entirely unfounded as regards the second defendant [the applicant].
It is beyond dispute that [the applicant] gave an interview to V.B., a journalist of the weekly Imperijal, which was published in issue no. 6 of that weekly on 4 April 1997 under the title: ‘By exposing H.’s machinations I did not set up HDZ’. It is also undisputed that in that interview [the applicant] presented his view of the situation in the Croatian health care sector, where he stressed that that was not an attack on the party (HDZ) and that he had nothing against his colleague A.H. personally, but that they disagreed in terms of the concept and strategy of health care. [The applicant] in his testimony stated that he had not authorised that interview although he stood by every word in it, but that he had not chosen the title and did not know who had. He added that the word ‘machinations’ from the title of that interview had not been put in the title with any malicious intent, and that it did not refer to the plaintiff personally, as that had not been the purpose of the interview.
In the statement of claim the plaintiff asserted that in relation to this interview he had been affronted by the title, and not by its text.
From the testimony of the author of that article, V.B., it follows that he came up with the title on the basis of the words and arguments used by [the applicant] on that occasion and otherwise in their discussions concerning the situation in the health care sector, and that [the applicant] had not objected to that title when he was informed about it by telephone before the interview was published.
Section 2 paragraph 8 of the Public Information Act provides that an authorisation is permission to publish given in written form or in oral form, if there is an audio recording of the oral authorisation.
This case however does not concern an authorised interview, still less authorisation of its title, because [the applicant] claims that he did not authorise it, whereas the first defendant did not submit any evidence that he had. Even though journalist V.B. claims that the authorisation exists, he [himself] is not certain of it when stating [in his testimony] that ‘that interview, as far as I remember, was authorised.’
The fact remains that the title associates the word ‘machinations’ with the plaintiff, which, according to the plaintiff, particularly struck him because it suggests that he is a bad person...
Since the majority of people indeed understand the word ‘machination’ as something negative, because it is associated with scheming, trickery and cunning, it is quite reasonable to expect that on that account the plaintiff suffered mental distress as a result of a breach of his reputation and honour. Therefore, the court found the first defendant liable for damages. It is to be noted that the use of such a hard word which was obviously used only for sensational effect and to attract readers, and, for the same reasons featured on the front page, cannot be justified by arguing that it constituted a value judgment on the part of the author as to the plaintiff’s work and person. It is all the more so because in the text of the interview no arguments are presented for that [view]. On the contrary, [the applicant] claims that he has nothing against his colleague A.H. personally, but that they disagree in terms of the concept and strategy of health care. In his testimony [the applicant] also stated that such a title did not represent the purpose of that interview.
As regards the second ... article, which is an interpretation of a telephone conversation between Dr I.V. and [the applicant], the court also found that it contains statements damaging to the reputation, honour and dignity of the plaintiff. [That is so] because the author, by putting those words into the mouth of the [the applicant], suggests that it had been kept secret from the public that, apart from receiving his ministerial salary, the plaintiff had been receiving a lot of money for sitting on another ten supervisory boards. However, [the applicant] in his testimony claims that in that telephone conversation, when talking about the involvement of many in [sitting on] supervisory boards, he never mentioned the plaintiff’s name...
[The applicant] also said in his statement that in the telephone conversation with Dr I.V. he had mentioned ... that the plaintiff had actually said to him at the HDZ round table that he would never become a professor because he did not have the professional or scientific qualities. Although [the applicant] could have understood these words of the plaintiff as a threat, since the plaintiff uttered them while he [was] the Minister of Health, it clearly stems from the minutes of the first session of the HDZ round table on health care of 15 October 1996, which [the applicant] furnished for the file, that these statements were taken out of the context of a party discussion on the situation in the health care sector, where the plaintiff, speaking about technology in health care, of which [the applicant] said was bad, stated that it had been chosen by members of the Croatian Medical Association, who were also regular university professors, which the defendant would never become because he did not have the [relevant] professional and scientific qualities.
Since this value judgement on the part of the plaintiff concerning [the applicant’s] professional and scientific qualities was made at a closed party discussion and was taken out of context in the newspaper article in question by using the words ‘as long as I am the Minister’, it is evident that in that way the plaintiff was portrayed as a person who used his political position to harm others.
Given that [the applicant] did not choose the title of the interview in question, nor was the word ‘machinations’ mentioned in [its] text, and given that he did not authorise that interview, and especially not its title, and given that not only did he not allow the author of the journalistic interpretation of the telephone conversation between him and Dr I.V. to publish it, but he actually prohibited it [publication], and given that the telephone conversation in question was not conducted the way it had been published [presented in the article] ... the plaintiff’s claim against [the applicant] was dismissed as unfounded, because [the applicant’s] conduct did not lead to the publication of the statements which harmed the honour and dignity of the plaintiff.
In particular, from the statements by all the witnesses who were, according to [the applicant] present in the room while he was talking on the telephone with Dr I.V., that is, from the statements by witnesses I.B., N.L. and M.K., which the court accepted as accurate because they were convincingly presented, it follows that V.B. was sitting in an adjacent room at the time and could hear only what [the applicant] was saying since the speaker on the telephone was not turned on, which speakers do not exist in the hospital. Apart from that they testified that [the applicant] had not mentioned the plaintiff’s name on that occasion: this was confirmed by Dr I.V., whom the court also heard as a witness. Furthermore, [the applicant] stated in his testimony that after the publication of the telephone conversation he had not denied it in Imperijal but that he had done so several times in other ways and also in the media. [He testified that] immediately after the publication he had spoken with the editor-in-chief of Imperijal, Ms I.D., warning her that he had not said what had been published [what had been attributed to him] at which she had said that this was not a big deal. It is to be noted that I.D., who was heard by the court as a witness, did not exclude the possibility that [the applicant] had had some remarks after the publication of that text.
For these reasons the court could not accept as accurate the witness testimony of V.B., according to whom that interview had been authorised, because [had it been so] the first defendant would certainly furnished evidence [in support] of it. Nor could [the court accept V.B.’s testimony in the part which stated that] he had overheard the entire telephone conversation because the speakerphone was turned on, and that [the applicant] did not prohibit him from publishing that conversation. [That is] so because witness I.B. testified that after the conversation he had seen [the applicant] arguing with V.B. and telling him not to publish anything until he had approved it in writing, which written approval the first defendant did not produce during the proceedings.”
“In response to the arguments raised in the appeal concerning the [lack of] authorisation, [the court notes that] its meaning is permission to publish a conversation or statement. Therefore, its purpose is to protect the interviewee in relation to the content of his or her statements.
However, the issue of authorisation may also arise in the [context of] civil proceedings for damages instituted against the publisher by a third person harmed by the published text.
It is undisputed that that the interview [in question] was not authorised within the meaning of section 2(8) of the Public Information Act, whereas the interpretation of the telephone conversation ... is information, which by [its] nature does not require authorisation.
...
... [The first-instance] court based its decision (in its part dismissing the action against [the applicant]) on the finding that not only had [the applicant] not allowed publication, but had actually prohibited the journalist from publishing the content of the telephone conversation he had had with Dr I.V.
That finding is not clear. It is not clear because [the applicant] ... testified that the telephone conversation did not happen as it was published. He also testified that journalist V.B. could only hear part of the content of the conversation, in particular his side of it. So, if he [the journalist] could not hear everything and [even] if [the applicant] did not mention the facts appearing in the published text, the [first-instance] court needed to clarify why [the applicant] had prohibited the journalist from writing about that telephone conversation.
If it is true that he never said [what was published] (or did not say all [of it]), it was necessary to examine why he did not deny it.
Lastly, the question arises why he interrupted his work with the patient and had a telephone conversation with Dr I.V. in the immediate proximity of the journalist, instead of postponing that conversation for later.
The statements by witnesses who were allegedly present during the telephone conversation were not assessed by the first-instance court in accordance with section 8 of the Civil Procedure Act. Instead, the court largely reproduced those statements and assessed them as ‘accurate and convincing’.
Had it assessed them in accordance with the law, it would have noticed that the testimony of N.L. indicated that I.B. was not present, and that she [N.L.] had not paid attention to the content of the telephone conversation.
It would also have noticed that witness I.B. testified that neither supervisory boards nor A.H. were mentioned in the telephone conversation. M.H’s testimony was identical...
In contrast to these witnesses, [the applicant] testified that in the telephone conversation supervisory boards, and the remuneration received by their members, had [indeed] been discussed, and that he had mentioned A.H. in connection with ‘threats’ to his [career] advancement.
To that it should be added that [the applicant] also testified that the word ‘machinations’ referred to how A.H. acted toward him personally.
The first-instance court failed to assess all the aforementioned.”
“... I do not receive my salary from the [political] party nor do I sit on about ten supervisory boards and receive remuneration for doing so ...”
When asked by the judge whether on that occasion he had mentioned the plaintiff’s name, the applicant replied:
“No, but replying to Dr I.V.’s questions I mentioned the Minister of Health, and at that time the plaintiff was the Minister of Health.”
To the question whether on that occasion he had said anything to Dr I.V. about the alleged threats by the Minister of Health that he would never become a professor, the applicant replied:
“Dr I.V. asked me why the plaintiff had threatened me, to which I replied that he should read the minutes of the ... HDZ round table on health care reform of 15 October 1996. I do not remember exactly whether I said anything else in reply to that question.”
“It is beyond dispute that the defendant [the applicant] gave an interview to V.B., a journalist of the weekly Imperijal, which was published in issue no. 6 of that weekly on 4 April 1997 under the title: ‘By exposing H.’s machinations I did not set up HDZ’. It is also undisputed that in that interview the defendant presented his view of the situation in the Croatian health care sector, where he disagreed with the plaintiff, who was the Minister of Health at that time, as regards the concept and strategy of health care. In the statement of claim the plaintiff asserted that in relation to this interview he had been affronted by the title, and not by its text. It is unclear who came up with the title of the interview, whether the defendant authorised that interview, including the title, and whether the defendant had had a telephone conversation with Dr I.V. in the presence of journalist V.B., the content of which was published as the journalist’s interpretation of that conversation, and whether the defendant gave permission to that journalist to publish [the content of] that telephone conversation, and finally whether the statements made by the defendant during that telephone conversation, if [indeed they were] made, were true as published.
From the testimony of the author of that article, V.B., it follows that he came up with the title on the basis of the words and arguments used by [the applicant] on that occasion and otherwise in their discussions concerning the situation in the health care sector, and that [the applicant] had not objected to that title when he had informed [the applicant] about it by telephone before the interview was published.
The court accepted this testimony as accurate, since the defendant in his testimony himself stated that, although he had not authorised that interview, he stood by every word in it and was prepared to sign his name to it, and that, although he had not chosen the title for the interview, he accepted [it] as it was because he believed that the word ‘machinations’ had not been included in the title with any malicious intent, and that it had referred to the plaintiff’s behaviour towards him personally, and that he interpreted the meaning of that word as trickery, cunning, deception and scheming.
Since the word ‘machinations’ undoubtedly has negative connotations and indicates dishonourable conduct, it is absolutely reasonable to expect that the plaintiff suffered mental distress as a result of this violation of his dignity, honour and reputation. It was therefore necessary to find the defendant liable for damages, regardless of whether [he] had used this hard word in his interview by referring to the plaintiff or whether it was used in the title of that interview by ... the author. That is so not only because the defendant did not deny using this expression and this depiction of the plaintiff, but, on the contrary, [also because] during the proceedings he stated that he agreed with the title ...”
“As regards the second ... article, which is an interpretation of a telephone conversation between Dr I.V. and the defendant, the court also found that it contained statements damaging to the reputation, honour and dignity of the plaintiff. [That is so] because the author, by putting those words into the mouth of the defendant, suggests that it had been kept secret from the public that, in addition to his ministerial salary, the plaintiff had been receiving a lot of money for sitting on another ten supervisory boards. However, the defendant in his testimony claims that in his telephone conversation, when talking about the involvement of many [people] in supervisory boards, he never mentioned the plaintiff’s name...
The defendant in his testimony also said that in the telephone conversation with Dr I.V. he had mentioned ... that the plaintiff had actually said to him at the HDZ round table that he would never become a professor because he did not have the professional or scientific qualities. Although the defendant could have understood these words of the plaintiff as a threat, since the plaintiff uttered them while he [was] the Minister of Health, it clearly stems from the minutes of the first session of the HDZ round table on health care of 15 October 1996, which the defendant furnished for the file, that these statements were taken out of the context of a party discussion on the situation in the health care sector, where the plaintiff, speaking about technology in health care, of which the defendant said was bad, stated that it had been chosen by members of the Croatian Medical Association, who were also regular university professors, which the defendant would never become because he did not have the [relevant] professional and scientific qualities.
Since, this value judgement on the part of the plaintiff concerning the defendant’s professional and scientific qualities was made at a closed party discussion and was taken out of context in the newspaper article in question by using the words, ‘as long as I am the Minister’, it is evident that in that way the plaintiff was portrayed as a person who uses his political position to harm others.
Since the information published in this journalistic interpretation of the telephone conversation between Dr I.V. and the defendant undoubtedly harmed the dignity, honour and reputation of the plaintiff, the defendant was ordered to pay the plaintiff damages for its publication, regardless of the defendant’s contention that he had not given the journalist V.B. permission to publish that conversation and that the conversation had not happened in the way it was published.
The court could not establish the precise contents of that telephone conversation by hearing the witnesses who were, according to the defendant, present in the room where he was speaking on the telephone to Dr I.V., or by hearing Dr I.V. as a witness.
In particular, Dr I.V. testified that he did not remember whether during that telephone conversation the defendant had told him that the plaintiff sat on another ten supervisory boards and was receiving a lot of money for doing so. He also thought that the defendant had never told him anything about the plaintiff preventing the defendant from becoming a professor. He also stated that he knew about the newspaper article and that he had not denied it, which he now regretted. He had known that the defendant often criticised the situation in the health care sector during the plaintiff’s time as Minister of Health, and had pointed out that the defendant had done this without [good] arguments.
On the other hand, witness I.B. testified that, although he had been present during that telephone conversation, he had not heard, nor could he have heard, what Dr I.V. was saying, as there was no speakerphone. Nor had he heard [the plaintiff’s name] or supervisory boards mentioned in that conversation. However, witness N.L., who was present during that conversation and who had not paid attention to its content, claims that there was no one in that room apart from the defendant, M.K. and herself.
Witness M.K. also disputed that there was any mention of the plaintiff or of supervisory boards in that telephone conversation.
In view of the fact that all these witnesses had claimed that the speakerphone had not been switched on, as the defendant had also claimed, the court did not accept the testimony of witness V.B., who had claimed the opposite. However, the testimony of that witness was accepted in the part in which he stated that immediately after the conversation the defendant had explained to him what he had talked about with Dr I.V., and that he had not asked the defendant for special authorisation to publish that conversation, since it was logical that the defendant knew that the conversation would be published in view of the explanation given, and that after the publication of the article the defendant had not been angry with him and had continued to work together with him subsequently.
The fact is that the defendant himself admitted in his testimony that he had had the telephone conversation with Dr I.V., knowing that journalist V.B. had at that time been sitting in a room opposite, where he had been aware that the journalist could hear the conversation. [The defendant] confirmed this by stating that after the conversation he had prohibited journalist V.B. from publishing it.
On the other hand, the defendant categorically claimed that the speakerphone had not been turned on during the telephone conversation, since there were no such phones in their institution. Therefore, journalist V.B. could only have heard a part of that conversation, that is, what he [the defendant] had been saying, and not what Dr I.V. had been saying, whereas, in contrast to this, in the newspaper article the entire telephone conversation had been published, that is, also including the words of Dr I.V. That means that the defendant must have subsequently told journalist V.B. what had been said in the conversation, so that he could publish it. But even if journalist V.B. had made up that telephone conversation himself, that is, without any subsequent explanation by the defendant, this could not exonerate the defendant from liability, since it could have been expected that the defendant would deny those allegations, even more so because in his testimony he had himself said that it was a ‘stinky article’. However, he did not do so, as such a denial was certainly not published, nor does the defendant have any written record of any conversation with the editor-in-chief of Imperijal [in which it was said] that the article was not accurate. The editor-in-chief of Imperijal, I.D., heard as a witness, testified that she did not remember the defendant speaking to her after the publication of the text, although she had spoken with him several times by telephone, and therefore she did not exclude the possibility that the defendant had made some remarks after the publication of the text.”
“From the plaintiff’s testimony, which this court accepted as ... very convincing, it follows that the publication of these statements affected him very badly, given the public office he held at the time, since his Ministry had very modest financial means at its disposal and his project could only survive with strict financial discipline. [T]he effect of the publication of this article was that he began to lose the confidence of people in health care, who worked for meagre salaries. [T]his was reflected in the hospital where he was working as a doctor, because patients, losing confidence, had started going to see other doctors, whilst students at the Faculty of Medicine where he taught as a professor, heckled him with: ‘Do you read Imperijal? And you teach us ethics!’ All this also negatively affected his family, because some friends started turning their backs on them, and they also received unpleasant anonymous telephone calls. The plaintiff stated that he had not sought medical assistance for the distress he was suffering because, as a doctor, he had been prescribing medication for himself, as he felt very bad at that time and could not sleep.
Since, therefore, the plaintiff did not seek medical assistance for the distress he was suffering, and thus does not possess the relevant medical documentation, the court did not consider it necessary to obtain an opinion from a medical expert as regards the duration and the intensity of this suffering, given that in view of the content of the article and the public office the plaintiff held at the time, it is completely understandable that he suffered intense mental distress as a result.
Given that the defendant by acting in this way seriously tarnished the dignity, honour and reputation of the plaintiff, causing him distress, it was necessary, pursuant to section 200 of the [1978] Obligations Act ... to award the plaintiff damages in the amount of 30,000 [Croatian] kunas, while taking into account the fact that these statements were published in the weekly Imperijal, and ... 2,638 copies of that issue of Imperijal were sold.”
“The arguments raised in the appeal are not well-founded, because the first-instance court established the facts of the case fully and correctly, and also correctly applied the substantive law.
Thus, the first-instance court correctly assessed the evidence taken ... and established that the defendant had uttered a series of insults against the plaintiff (all of which were published in the press), whereby he had harmed the honour, reputation and dignity of the plaintiff, as a result of which the plaintiff had suffered severe mental distress ... The first-instance court established this not only from the testimony of witness V.B. but also from the testimony of the defendant himself, who testified that, although the interview published in the newspaper Imperijal entitled: ‘By exposing H.’s machinations I did not set up HDZ’ had not been authorised, he stood by every word published in that article ...
As the first-instance court had established that the defendant had uttered insults against the plaintiff, harming [his] honour, reputation and dignity, it correctly awarded the plaintiff damages for mental distress suffered in the amount of HRK 30,000, according to the criteria set out in section 200 of the Obligations Act.
In particular, in this case the first-instance court, when assessing whether the award was justified, and its level, had in mind [all] the circumstances of the case, which in this case meant that the insults were made against the plaintiff, who was at that time the Minister of Health, that is, a person well known to the Croatian public, ... a person with high integrity in his professional life, who was prominent in his profession and in his social involvement. The insults uttered therefore particularly violated the honour and reputation of the plaintiff as such a person, as a result of which he had suffered severe mental distress.
The level of the award was therefore ... appropriate to the severity of the mental distress he suffered as a result of this breach of his honour and reputation.”
“The complainant alleges a violation of Articles ... and 38 of the Constitution ...
The [ordinary] courts established without doubt that the publication of the articles in question had harmed the honour and reputation of the plaintiff, as a result of which he had suffered mental distress. Therefore, in the civil proceedings conducted in accordance with the relevant statutory provisions, the complainant’s [constitutional] guarantees provided in the [Articles relied on], were not violated.”
II. RELEVANT DOMESTIC LAW
A. The Constitution
Article 16
“(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health.
(2) Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.
...
Article 38
“(1) Freedom of thought and expression shall be guaranteed.
(2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and public expression, and free establishment of all media institutions.
(3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information.
(4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or a statute have been breached by public information.”
B. The 1978 Obligations Act
Relevant provisions
Grounds for liability
Section 154
“Anyone who causes damage to another shall be bound to compensate it unless he or she proves that the damage occurred through no fault of his or her own.”
Damage
Section 155
“Damage is diminution of one’s property (actual damage) or prevention of its increase (lost profits), as well as the infliction of physical or mental pain or fear (non-pecuniary damage).”
...
V. REDRESS FOR NON-PECUNIARY DAMAGE
Publication of a judgment or correction
Section 199
“In the event of a breach of the rights of personality the court may order, at the expense of the tortfeasor, publication of the judgment, or a correction, or order the tortfeasor to retract the statement that caused the breach, or [order] any other form of redress capable of attaining the purpose [otherwise] achieved by an award of damages.”
Non-pecuniary damages
Section 200
“The court shall award non-pecuniary damages for physical pain, for mental anguish caused by loss of amenities of life, disfigurement, breaches of reputation, honour, liberty or the rights of personality or the death of a close relative, and for fear, if it finds that the circumstances of the case, in particular the intensity of the pain, anguish or fear and their duration, justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage.
When deciding on a claim for non-pecuniary damages and its amount, the court shall take into account ... the purpose of those damages, as well as that it should not favour aspirations that are incompatible with its nature and social purpose.”
...
LIABILITY OF SEVERAL PERSONS FOR THE SAME DAMAGE
Joint and several liability
Section 206(1) and (4)
“(1) Where the damage has been caused by several persons together, they shall be jointly and severally liable.
(4) When it is certain that the damage was caused by any two or more [specific] persons who are in some way connected with each other, and it is impossible to determine which of them caused the damage, those persons shall be jointly and severally liable.”
Reimbursement of the payer
Section 208
(1) A joint debtor who has made payment in excess of his share in damage caused may seek reimbursement from each of the remaining debtors [in proportion to their share] of what he has paid on their behalf.
(2) The share to be paid by each individual debtor shall be determined by the court, having regard to the seriousness [the degree] of their fault and the severity of the consequences arising from their actions.
(3) If the shares are impossible to determine, each debtor shall be liable for an equal share, unless fairness in a specific case requires otherwise.”
C. The Public Information Act
Definitions of terms
Section 2(7) and (8)
“(7) An interview is a conversation or statement in written or oral form intended for publication in the media.
(8) Authorisation is permission to publish given in written form or in oral form, if there is an audio recording of the oral authorisation.”
...
Editor-in-chief
Section 14(2) and (3)
“(2) The editor-in-chief [of a information medium] is liable, in accordance with the law, for all information published [by it].
(3) Liability of the editor-in-chief referred to in paragraph 2 of this section also refers to editing of published information (selection of a title, subtitle, text under a photograph, and so on).”
...
Liability for damage
Section 22
“(1) A publisher who causes damage to another person by publishing certain information in the media shall be obliged to compensate it.
(4) Non-pecuniary damage shall be compensated for by correcting false information, by publishing a correction of the information and an apology, and by payment of just satisfaction for the pain and anguish sustained, if their duration and intensity so justify, in accordance with the general provisions of civil law.
(5) Non-pecuniary damage shall be compensated for by a publisher who, through information about personal or family life, or by any other information published in the media, violates another person’s privacy, dignity, reputation, honour or any other constitutionally or statutorily protected right.”
Exemption from liability for damage
Section 23(1)
“The publisher shall not be liable in damages:
1. ...
2. if the information causing the damage is an authorised interview,
3. if the information causing the damage is based on:
- true facts, or
- facts for which the author had reasonable grounds to believe they were true and undertook all necessary measures to verify their veracity, provided there existed a legitimate public interest in publishing such information and the author acted in good faith,
4. ...
5. if the information causing the damage is true and [if] from the circumstances of the case it follows that the journalist could have understood with certainty that the injured party agreed with its publication.
6. if the disputed information concern value judgments by the author the publication of which was in the public interest, and if the information was given in good faith.”
Publication of a correction
Section 31(1) and (2)
“(1) Newspapers and other periodicals as well as radio and television stations are bound to publish a correction of published information.
(2) The right to ask for a correction of published information belongs to an individual or legal entity whose dignity, reputation and honour, or any other right or interest has been breached by the publication of inaccurate or incomplete information. If those rights or interests are breached by [the publication of] insulting information the individual or legal entity has the right to reply to insulting published information.”
D. The Code of Ethics of Croatian Journalists
“A journalist is bound to publish true, balanced and verified information. He or she shall indicate persons or institutions from which he or she obtained data, information or statement. He or she has a right not to disclose the source of information, but for published information bears moral, material [civil] and criminal responsibility.”
E. The Civil Procedure Act
Section 221a
“If, on the basis of the evidence taken (section 8), the court cannot establish a particular fact with [the requisite degree of] certainty, it shall rule on the existence [or non-existence] of that fact by applying the rules on the burden of proof.”
...
5.a. Reopening of proceedings following a final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom
Section 428a
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto , ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated at first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision [in question].
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to observe the legal views expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
1. Applicability of Article 10 of the Convention
(a) The arguments of the parties
(b) The Court’s assessment
2. Non-exhaustion of domestic remedies
(a) The arguments of the parties
(b) The Court’s assessment
B. Merits
1. The arguments of the parties
(a) The Government
(b) The applicant
2. The Court’s assessment
(a) Whether there was interference
(b) Lawfulness and legitimate aim
(c) “Necessary in a democratic society”
(i) The applicable principles
“(a) The test of necessity in a democratic society requires the Court to determine whether the interference complained of corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10...
(b) The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken in accordance with their margin of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them...
(c) In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10...
(d) In assessing the proportionality of interference, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof even though there must be a sufficient factual basis to support it, failing which it may be excessive (Id., § 76). Therefore, the difference between facts and value judgments lies in the degree of factual proof which has to be established ... In other words, while the requirement to prove the truth of a value judgment is generally impossible to fulfil and infringes Article 10 ..., the requirement to prove to a reasonable standard of proof that a factual statement was substantially true does not contravene Article 10 of the Convention...
(e) The nature and severity of the sanction imposed are also factors to be taken into account when assessing the proportionality of the interference under Article 10 of the Convention ... Under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered ...”
(ii) The first article
(iii) The second article
(α) As regards the applicant’s alleged statement concerning A.H.’s membership of supervisory boards
(β) As regards the applicant’s statement concerning A.H.’s alleged threats to his career advancement
(iv) Conclusion
There has accordingly been a violation of Article 10 of the Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the freedom of expression admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,600 (five thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 September 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle
Berro-Lefčvre
Registrar President
