CASE OF KLEIN v. SLOVAKIA
(Application no. 72208/01)
31 October 2006
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 Klein v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 10 October 2006,
Delivers the following judgment, which was adopted on that date:
The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs A. Poláčková.
I. THE CIRCUMSTANCES OF THE CASE
“In these days we are witnessing ‘the humiliation of the crucifix’. In spite of all protests of the Slovak Bishops’ Conference and the Ecumenical Council of Churches aimed at stopping the production and distribution of the poster promoting the film of Miloš Forman: ‘The People versus Larry Flynt’ this poster is present in the streets of our capital Bratislava. It is a defamation of the symbol of the Christian religion. The American Film Association did not allow this blasphemy. It was not allowed in France and Belgium either. How is it possible that it was allowed in Slovakia which professes the tradition of Cyril and Methodius, that is the Christian religion, even in the Constitution? ... Therefore we request the Government, the Parliament, our public officials within the legislature and judiciary to examine the entire issue and take appropriate measures for withdrawal of the posters and the film and to hold accountable those who violated the laws... We hope that our protest will be viewed favourably by the responsible officials and that redress will be made. To all those who endeavour to do so we express our sincere thanks in advance.”
“I. As is generally known, the Earth is a flat board. Even if it is not a flat board, the Sun turns around it. Even if it does not turn, the church dignitary made love to his mother1.
II. The text may go on as follows: ‘Even if he did not make love...’ He did. Proves: (a) Larry Flynt won a Supreme Court trial in the USA. (b) The church dignitary is a ’trtko’2. This all will acknowledge who saw him at least on TV.
III. I profoundly hate using the word ‘trtkať’. The indispensable exceptions can be counted on the fingers of Eltsin’s left hand:
1. ’Trtkaj’ is the nickname of a former professor at the Chair of Journalism at the Faculty of Philosophy of the Comenius University during the period of ‘normalisation’.
2. ’Trt’ is a rarely used acclamation for [negating something] or the equivalent of the negation term ‘shit’ used in the Haná region.
3. ’Trtko’ is – as from a certain age – the same as the perhaps more colourful and euphemistic ‘trotkoš’. Such a person does not make love, nor does he ... At the utmost – oh – [the verb ‘trtkať’ is used]; poor mother.
IV. Slovakia is not a Christian State. (When French church dignitaries requested the prohibition of the Flynt poster, they had not even thought, fearful ones, of requesting prohibition of the film. They also alleged that France was a Christian State. Alas, a glimpse at the first articles of the constitution shows that the French people live in liberty, democracy and that it is their private affair whether of not they believe. Not a single word about a Christian State.)
A Christian State would be equally as intolerable as an Islamic State, for example Iran. It indirectly follows that none of the western States is Christian. The long-lasting separation of church from the State is to be considered as a major victory of spirit over matter. (I now disregard the fact that your neighbours in an Austrian or Bavarian village will make your life difficult if you leave the church).
The continuation of certain ceremonials is no proof that a State is ‘Christian’. For example, the American President ends the oath with the ritual words: ‘So help me God’. However, Larry Flynt refused to swear on the Bible with the explanation that he did not believe in God. Of course, the judge was satisfied with his statement that he would tell the truth. The American President could act likewise, but he would complicate his political life. The number of political struggles which we are able to fight in our life is limited. It is thus more important that Bill Clinton should send soldiers to Bosnia than the fact that he finally did not send there soldiers who were openly homosexual.
V. Given that the archbishop apparently lacks any sex-appeal it is entirely irrelevant whether in the inside of his body he is homosexual or bisexual (as Courtney Love in the film) or whatever. What matters, however, is his positive lustration finding1. This principal representative of the first Christian church has not even as much honour as the leader of the last gypsy band in his bow!
I do not understand at all why decent Catholics do not leave the organisation which is headed by such an ogre. Are they waiting until he dies? That is too weak. No member of the Communist Party of Czechoslovakia maintains in his or her defence: ‘I waited until Husák and Jakeš had died. Then I would make an effort to ensure redress’. Otherwise we would still live in the trees.
VI. As we actually do – in the figurative sense. The success of ‘Kolja’ (there is not a jot of paedophilia, not a single fellatio in that film) shows how pale the world has become. Salman Rushdie is the hunted one. It is true that the French President received him, but it is unthinkable that the Slovakian President would do the same. The latter preferred joining the archbishop in his effusions. Which ‘–ko’2 advised him to do so: Štefko, Zemko?
VII. The real Larry Flynt published and continues publishing materials that are scurrilous. Their degree of effrontery exceeded the threshold accepted up to then. So what? The real Larry Flynt acted in the film as a judge and in his role he made unacceptable statements. That was however foreseen in the script. The Slovak archbishop makes unacceptable statements without being ordered to do so by anyone. And nothing?! Vanity, all is vanity.
At the request of the editorial office I leave it to the kind readers to pronounce a judgment as to the degree of scurrility of the Slovak archbishop.”
“... as author of the article ‘The falcon is sitting in the maple tree; Larry Flynt and seven slaps to the hypocrite’ ... stating inter alia: ‘This principal representative of the first Christian church has not even as much honour as the leader of the last gypsy band in his bow! I do not understand at all why decent Catholics do not leave the organisation which is headed by such an ogre ...’, to which the local association of the Cyril and Methodius Community in Prievidza and the Bernolák Society in Bratislava reacted independently of each other as offending their religious feelings, the applicant publicly defamed a group of citizens for their faith.”
“It is true that Article 26 (1) and (2) of the Constitution of the Slovak Republic as well as Article 10 of the European Convention on Human Rights and Article 19 of the Universal Declaration of Human Rights guarantee the freedom of expression and the right to information.
Thus it is not disputed that, under the Constitution of the Slovak Republic, each citizen has the right to receive, seek and impart any information, however only to the extent that the constitutional rights and freedoms of others are not thereby violated. This conclusion can be indirectly deduced from Constitutional Court’s finding PL ÚS 7/96 in which the Constitutional Court held that ‘All fundamental rights and freedoms are protected only to the extent that availing oneself of a right or freedom does not disproportionately restrict or even negate a different right or freedom’.
The article ‘The falcon is sitting in the maple tree; Larry Flynt and seven slaps to the hypocrite’ is not of a common journalistic standard; the accused admitted this at the main hearing and the Regional Court considers that it goes beyond the principles of journalistic ethics. [The Regional Court] is also aware that Article 10 of the Convention protects the freedom of expression not only in cases of ‘information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb or worry the State or any part of population’. The members of the appellate court’s chamber believe that even in such cases certain limits exist which should not be exceeded. The article in question is vulgar and it ridicules and offends. In the view of the Regional Court it therefore enjoys no protection. Otherwise media could easily become distributors of, inter alia, various malevolent expressions which diminish human dignity. That would certainly not correspond to the spirit and principles of democracy. By the contents of the published article the accused violated the rights, guaranteed by the Constitution of the Slovak Republic, of other persons – namely a group of inhabitants with Christian faith. He thereby offended their religious feelings.”
On 10 December 2002 the company VMV a.s. paid, on behalf of the applicant, SKK 15,000 to the Košice I District Court with reference to the pecuniary penalty which had been imposed on him. The Companies’ Register available on the web indicates that that company has been in liquidation since 15 January 2005.
II. RELEVANT DOMESTIC LAW
“... Mindful of the spiritual bequest of Cyril and Methodius, ...
We, the citizens of the Slovak Republic, have, herewith and through our representatives, adopted this Constitution:” ...
“1. Freedom of thought, conscience, religion and faith shall be guaranteed. This right shall include the right to change religion or faith and the right to refrain from a religious affiliation. Every person shall be entitled to express his or her opinion publicly...
4. The rights under paragraphs 1 to 3 of this Article can be restricted only in accordance with a law where it is necessary in a democratic society for the protection of the public order, health, morals or the rights and freedoms of others.”
“1. Freedom of expression and the right to information shall be guaranteed.
2. Every person has the right to express his or her opinion in ... writing, ... and also to seek, receive and disseminate ideas and information ...
4. Freedom of expression and the right to receive and disseminate information may be limited by law where it is necessary in a democratic society to protect rights and freedoms of others, state security, public order, health and morals.” ...
B. Criminal Code
“A person who publicly defames
a) a nation, its language or a race or
b) a group of inhabitants of the republic for their political belief, faith or because they have no religion,
shall be punished by up to one year’s imprisonment or by a pecuniary penalty.”
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...
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. Arguments of the parties
1. The Government
The article did not indicate the context in which it should be read, and it was impossible for a reader to distinguish which parts of the statements referred to the character in M. Forman’s film and which concerned the person of Archbishop J. Sokol. Furthermore, it contained practically no arguments, and its form clearly exceeded the limits of acceptable criticism and tolerance. Accordingly, the interest in protecting the rights of the persons whose religious feelings the applicant had grossly offended outweighed his right to freedom of expression.
2. The applicant
B. The Court’s assessment
The test of whether the interference complained of was “necessary in a democratic society” requires the Court to determine whether it corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued (the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference), and whether the reasons given by the national authorities to justify it are relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (for the recapitulation of the relevant principles in more detail, see Giniewski v. France, no. 64016/00, §§ 43-54, ECHR 2006 ...; Aydın Tatlav v. Turkey, no. 50692/99, §§ 22-27, 2 May 2006; Gündüz v. Turkey, no. 35071/97, § 38, ECHR 2003 XI; Murphy v. Ireland, no. 44179/98, §§ 65-69, ECHR 2003 IX (extracts), with further references).
The reasons invoked for the interference in issue are therefore too narrow and are insufficient.
II. 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.”
The applicant further claimed EUR 90,000 in compensation for damage of a non-pecuniary nature. He submitted that he had suffered stress as a result of his prosecution, that he had experienced difficulties in finding suitable employment following his conviction and that his social status had been harmed. As a result, he suffered from bouts of depression, insomnia, hypoactivity and anxiety and he had to consult a professional psychiatrist.
As regards the alleged non-pecuniary damage, the Government contended that it was exaggerated.
The Court further finds that, as result of his prosecution and conviction, the applicant suffered damage of a non-pecuniary nature which is not sufficiently compensated by the above finding of a violation of Article 10 of the Convention. Making its assessment on an equitable basis, it awards him EUR 6,000 in this respect.
B. Costs and expenses
As regards the claim related to the costs of the proceedings under the Convention, the Court, on the basis of the documents before it, awards the applicant the sum claimed, namely EUR 4,860.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage and EUR 5,210 (five thousand two hundred and ten euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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;
Done in English, and notified in writing on 31 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
1 This phrase is also the title of a folk song.
2 The noun “sokol” means falcon in the Slovak language.
1 The verb “trkať” was used which is a slang and unofficial term for, inter alia, having sexual intercourse (The Dictionary of Slovak Slang by B. Hochel, HEVI 1993, p. 164).
2 The noun “trtko” means stupid or undecided person according to the Dictionary of Slovak Slang cited above (p. 164).
1 The so called “Lustration Act” was adopted in the former Czechoslovakia in 1991; it was aimed at preventing high-ranking representatives of the communist regime and collaborators of its secret police from holding certain public posts.
2 “-ko” may stand for the name of a person whose name ends with these letters but may also imply a slang noun for a person, possibly with negative connotation.
1 SKK 15,000 was at that time the equivalent of approximately 375 euros.
1 SKK 28,084 is the equivalent of approximately 740 euros.