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KLEIN v. SLOVAKIA - 72208/01 [2006] ECHR 909 (31 October 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/909.html
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[2006] ECHR 909
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FOURTH
SECTION
CASE OF
KLEIN v. SLOVAKIA
(Application
no. 72208/01)
JUDGMENT
STRASBOURG
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:
PROCEDURE
The
case originated in an application (no. 72208/01) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovakian national, Mr Martin Klein (“the
applicant”), on 28 June 2001.
The
applicant was originally represented by Mr J. Hrubala, a lawyer
practising in Banská Bystrica and Bratislava. On 8 May 2003 he
appointed Ms Z. Dlugošová, a lawyer practising in
Bratislava, to represent him in the proceedings. Prior to that date
Ms Dlugošová had been charged with the preparation and
filing of the application on behalf of Mr Hrubala.
The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Mrs A. Poláčková.
The
applicant alleged that his right to freedom of expression had been
violated as a result of his conviction for the publication of an
article.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
By
a decision of 8 November 2005 the Court declared the application
admissible.
The
Government, but not the applicant, filed further written observations
on the merits of the case (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1947 and lives in Bratislava.
He is a journalist and film critic.
On
27 February 1997 Miloš Forman’s film “The People
vs. Larry Flynt” was released to cinemas in Slovakia. Prior to
that, the film was promoted, inter alia, by means of a poster
placed in the streets. In the poster the main character had the flag
of the U.S.A. around his hips and he was depicted as crucified on a
woman’s pubic area dressed in a bikini.
On
26 February 1997 the “Common Declaration of Ecumenical Council
of Churches and of the Slovak Bishops’ Conference” was
published. The declaration protested against the display of the
poster as being a profanation of God. The Movement of Christian
Associations of Children subsequently associated itself with the
declaration.
On
11 March 1997 Archbishop Mons. Ján Sokol made the following
declaration on the Slovak Television:
“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.”
On
28 March 1997 the weekly Domino Efekt published an article
written by the applicant. The weekly was at that time published in
8,000 copies and it mainly concentrated on political commentary and
specialised articles on economy, philosophy, natural sciences and
culture. It was aimed at intellectually-oriented readers.
The
article was entitled “The falcon is sitting in the maple
tree;
Larry Flynt and seven slaps to the hypocrite”. In it the
applicant criticised Archbishop Ján Sokol.
It did not mention that it had been written in reaction to the above
TV broadcast of the Archbishop. The article reads as follows:
“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
mother.
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’.
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 finding.
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’
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.”
Subsequently
two associations complained that the religious feelings of their
members had been offended by the article. Criminal proceedings were
brought against the applicant. Archbishop J. Sokol first joined the
proceedings as an aggrieved person. He later withdrew from the case
and waived his right to claim compensation.
On
15 June 2000 the Košice I District Court convicted the
applicant of an offence under Article 198(1)(b) of the Criminal
Code. The relevant operational part of the judgment reads as follows:
“... 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.”
The
applicant was sentenced to a fine of 15,000 Slovakian korunas,
to be converted into one month’s imprisonment in the event that
he deliberately attempted to avoid payment of the sum.
In
the proceedings before the District Court the applicant explained
that his article had been a reaction to statements by Archbishop J.
Sokol broadcast in the main evening news bulletin of the Slovak
Television in March 1997. The applicant considered the Archbishop’s
proposal to prohibit the distribution of both the poster and the film
to be contrary to the principles of a democratic society and, in
particular, the freedom of expression. The applicant considered it
appropriate to express his view openly as in the TV broadcast no one
had been given the opportunity to express a different view from that
of the Archbishop. He did not consider the Archbishop to be morally
spotless as he had learned that he had been registered in the files
of the former communist secret police. The applicant underlined that
he had not intended to offend the feelings of members of the Catholic
Church.
As
to his article, the applicant stated that it was not a commentary but
a literary joke with ideas and associations which, admittedly,
might be appreciated only by a couple of intellectuals. The applicant
stressed that it had not been his intention to accuse the Archbishop
of incest as the relevant passage related to the film in question in
which a preacher had allegedly committed incest with his mother. His
statement concerning the alleged scurrility of the Slovakian
Archbishop had no erotic connotation, the applicant had in mind
exclusively the moral failings of the person criticised.
The
applicant also explained that he had not been able to publish any
articles for three years and that Radio Free Europe had stopped
co-operating with him following the publication of the above article.
In
the course of the criminal proceedings the Archbishop stated that he
did not understand the purpose of the applicant’s attack
against his person, his mother and the church which he represented.
He further stated that he had pardoned the applicant.
The
court heard the representatives of the two associations which had
filed a criminal complaint against the applicant. They stated that
the applicant had offended and scandalised Roman Catholic worshippers
in that, inter alia, he had invited them to leave their church
if they considered themselves to be decent and alleged that the
representative of the church was an ogre.
On
the basis of the evidence taken the District Court found that the
applicant had committed an offence under Article 198(1) of the
Criminal Code in that in his article as a whole, and in particular by
the words quoted in the operative part of its judgment, he had
defamed the highest representative of the Roman Catholic Church in
Slovakia and thereby offended the members of that church. In
particular, the applicant’s statement in which he wondered why
decent members of the church did not leave it had blatantly
discredited and disparaged a group of citizens for their Catholic
faith. In doing so the applicant had placed the Catholic Church at
the level of an organisation to which decent Catholics should not
belong and which they should leave. The applicant should have been
aware that his article was capable of offending the interests of
other persons protected by law. Given that a high proportion of
citizens of Slovakia were Catholic, the applicant through his article
harmed the religious feelings of a considerable number of persons.
Both
the applicant and the associations which had filed the criminal
complaint against him appealed.
The
applicant argued that he had committed no offence and that his
conviction violated his right to freedom of expression. He referred
to constitutional provisions, international instruments and the
practice of the European Court of Human Rights under Article 10 of
the Convention.
The
representatives of the complaining associations expressed the view
that the sentence imposed on the applicant was too lenient.
On
10 January 2001 the Košice Regional Court dismissed both
appeals. It held that the first-instance court had established the
relevant facts with sufficient certainty and that it had correctly
applied the relevant law. As to the applicant’s arguments
relating to his right to freedom of expression, the Regional Court
held:
“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.”
As
to the qualification of the applicant’s action under the Slovak
criminal law and the penalty imposed, the Regional Court upheld the
reasoning of the first-instance court. Finally, the Regional Court
pointed out that the associations concerned lacked standing to
challenge by means of an appeal the sentence imposed on the
applicant.
On
2 April 2001 the applicant complied with the order to reimburse to
the District Court the costs of the proceedings amounting to SKK 800.
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
A. Constitution
The
Preamble to the Constitution provides, inter alia, as follows:
“... 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:”
...
Pursuant
to Article 1, the Slovak Republic is a sovereign, democratic State
governed by the rule of law. It is not bound by any ideology or
religion.
Article
24 reads as follows:
“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.”
Article
26 provides:
“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
Article
198 of the Criminal Code is entitled “Defamation of nation,
race and belief”. At the relevant time paragraph 1 of Article
198 read as follows:
“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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained that his right to freedom of expression had been
violated as a result of his conviction for publication of the above
article. He relied on Article 10 of the Convention, the relevant part
of which reads as follows:
“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
Government admitted that there had been an interference with the
applicant’s right to freedom of expression as a result of his
conviction. That interference had a legal basis, namely Article
198(1) of the Criminal Code, and it pursued the legitimate aim of
protection of the rights and freedoms of others, namely of Archbishop
Mons. Ján Sokol and of other persons of the Catholic faith.
As
regards the question whether the interference was “necessary in
a democratic society”, the Government underlined that the
article had been published before Easter, that is at a time when
Catholic believers were about to recall the crucifixion and
resurrection of Jesus Christ. The Archbishop had been authorised to
make the statement by the Slovak Bishops’ Conference and the
Ecumenical Council of Churches in Slovakia. The statement to which
the article had reacted had thus presented the view of several
religious institutions in Slovakia. In his article the applicant had
attacked not only the supreme representative of the Roman Catholic
Church in Slovakia, but also the religious feelings of believers.
Approximately 69% of the population of Slovakia were Catholic and
approximately 4% belonged to the Greek Orthodox Church. There was
therefore a pressing social need to protect the feelings of the
persons concerned. The extremely offensive statements in respect of
Archbishop J. Sokol were clearly an exaggerated reaction to the
Archbishop’s statement. As such, they were not acceptable.
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.
The amount of the pecuniary penalty imposed was relatively low and
the applicant had the right to ask for the expunging of his
conviction. The severity of the penalty imposed on the applicant thus
did not exceed the gravity of the offence which he had committed, and
it was not so severe as to discourage the press from participating in
discussions on matters of public interest.
The
Government concluded that the interference complained of had been
proportionate to the legitimate aim pursued and that the applicant’s
right under Article 10 had not been violated.
2. The applicant
The
applicant first claimed that he had not breached the limits set out
in the criminal law of the Slovak Republic as none of the mandatory
constituent elements of Article 198(1)(b) of the Criminal Code was
present in the action for which he had been convicted.
There
was nothing in his criticism which could be interpreted as targeting
adherents of the Catholic faith and it had no relationship to the
Catholic religion as such. As regards the person of Archbishop J.
Sokol, the applicant had wished to attract readers’ attention
to the moral integrity of a public figure and, in particular, to
point out the unacceptability of his activities involving (i) an
appeal to ban the film and remove the posters and (ii) his
co-operation with the secret police of the communist regime. His
value judgment concerning the person of the Archbishop had been based
on the relevant file in the secret police’s records and that
value judgment had not been shown to be untrue.
In
his article, the applicant had used imagery which was not commonly
accepted by society, in particular by referring to the act of incest
between the church dignitary in the film “The People vs. Larry
Flynt” and his own mother. However, that imagery did not
represent a statement concerning the Slovakian Archbishop. The
applicant had used it to point to the limits of the freedom of
expression which had also been the object of the polemic raised by
the Archbishop when he had asked to ban the screening of the film.
Although the article may have shocked and offended believers who held
the Archbishop in great esteem, it did not interfere with the right
of the believers to express and exercise their religion nor did it
denigrate the content of their religious faith. Considering the topic
of the article and also given the atmosphere and political context in
the society, it did not overstep the boundaries set out in both the
domestic legal system and the Convention. The form of his article
reflected the degree of his indignation in respect of the Archbishop.
In
the applicant’s view, the interference with his freedom of
expression based solely on the fact that certain persons may have
taken offence to the attack on the Archbishop could not be considered
legitimate in a democratic society.
The
article was published in a weekly read by a more demanding and
intellectually-oriented readership. It contained certain intellectual
connotations and allusions that reflected this fact. Furthermore, the
weekly was published with a circulation of 8,000 whereas the
Archbishop’s statement had been made during the main news
programme on public service TV which had around 80% viewer rating at
that time. The applicant further contested the Government’s
analysis of individual passages of his article.
The
investigation and conviction of the applicant had considerably
contributed to reducing his prospects of finding employment on the
journalistic market. Expunging his conviction would not erase the
damage caused to his reputation in the eyes of the public and within
the media community. Furthermore, there existed situations where a
copy and not an extract of a criminal conviction record was required
which comprised all convictions including those that had been
expunged from the record.
The
applicant concluded that the interference had been grossly
disproportionate to the objective pursued and, as such, it could not
be regarded as having been “necessary in a democratic society”.
B. The Court’s assessment
The
applicant’s conviction for publication of the above article
amounted to an interference with his right to freedom of expression
as guaranteed by Article 10 § 1 of the Convention. It had a
legal basis, namely Article 198 of the Criminal Code, and it pursued
the legitimate aim of protection of the rights of other persons whose
religious feelings, as the Slovak authorities concluded, had been
offended by the applicant’s article.
It
is not for the Court to assess whether the criminal courts correctly
applied the relevant law. Its task in the context of the present
application is to determine whether the interference in issue was
justified in the particular circumstances of the case, that is
whether it was “necessary in a democratic society” within
the meaning of the second paragraph of Article 10.
The
Court has underlined the importance in a democratic society of the
freedom of expression on many occasions. While the guarantees of
Article 10 are applicable also to ideas or information that offend,
shock, or disturb the State or any sector of the population, those
who exercise the freedom of expression undertake duties and
responsibilities. Amongst them – in the context of religious
opinions and beliefs – may legitimately be included an
obligation to ensure the peaceful enjoyment of the rights guaranteed
under Article 9 to the holders of such beliefs including a duty to
avoid as far as possible an expression that is, in regard to objects
of veneration, gratuitously offensive to others and profane.
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
Court notes the applicant’s argument that his article had been
a reaction to the Archbishop’s statement, broadcast in the main
evening news bulletin of a public TV station, and which he had
considered to be contrary to the principles of a democratic society
and, in particular, freedom of expression. The fact that it was
published in a weekly journal aimed at intellectually-oriented
readers is in line with the applicant’s explanation that he had
meant the article to be a literary joke with ideas and associations
to the film “The People vs. Larry Flynt” which he had not
expected to be understood and appreciated by everyone. The journal
was then published with a circulation of approximately 8,000 copies.
The Court is not required to assess the journalistic
quality of the article although it notes that it contained slang
terms and innuendoes with oblique vulgar and sexual connotations.
Similarly, the determination of the point at issue does not require
the examination of whether a sufficient factual basis existed for the
impugned statements directed at the person of the Archbishop (see,
mutatis mutandis, Feldek v. Slovakia, no. 29032/95,
§§ 75-76, ECHR 2001 VIII).
The
applicant was convicted of the offence of “Defamation of
nation, race and belief”. The first-instance court concluded,
inter alia, that he had defamed the highest representative of
the Roman Catholic Church in Slovakia and had thereby offended the
members of that church. The applicant’s statement that he
wondered why decent members of the church did not leave it had
blatantly discredited and disparaged a group of citizens for their
Catholic faith. That view was upheld by the court of appeal which
found that, by the contents of the published article, the applicant
had violated the rights, guaranteed by the Constitution, of a group
of inhabitants of the Christian faith.
The
Court does not accept this conclusion. In particular, in his article
the applicant sharply criticised the person of Archbishop J. Sokol
following the latter’s call, in a TV broadcast, for the
withdrawal of both the film “The People vs. Larry Flynt”
and the poster accompanying that film, and for action to be taken
against the persons who had acted contrary to the law in that
context. The applicant’s strongly worded pejorative
opinion related exclusively to the person of a high representative of
the Catholic Church in Slovakia. Contrary to the domestic courts’
findings, the Court is not persuaded that by his statements the
applicant discredited and disparaged a sector of the population on
account of their Catholic faith.
The
fact that some members of the Catholic Church could have been
offended by the applicant’s criticism of the Archbishop and by
his statement that he did not understand why decent Catholics did not
leave that Church since it was headed by Archbishop J. Sokol cannot
affect the position. The Court accepts the applicant’s
argument that the article neither unduly interfered with the right of
believers to express and exercise their religion, nor did it
denigrate the content of their religious faith (see also, mutatis
mutandis, Giniewski v. France referred to above, §
51).
The
reasons invoked for the interference in issue are therefore too
narrow and are insufficient.
The
applicant was convicted on the basis of complaints filed by two
associations, and the Archbishop as an injured party against whom the
article was directed withdrew from the criminal proceedings and
publicly pardoned the applicant. Given that the applicant in his
article criticised exclusively the person of the Archbishop, and
irrespective of the nature of the penalty imposed, his conviction of
the criminal offence of defamation of other persons’ belief was
in itself inappropriate in the particular circumstances of the case
(see also Lopes Gomes da Silva v. Portugal, no. 37698/97,
§ 36, ECHR 2000 X).
For
the above reasons, and despite the tone of the article referred to in
paragraph 49 above, it cannot be concluded that by its
publication the applicant interfered with other persons’ right
to freedom of religion in a manner justifying the sanction
imposed on him. The interference with his right to freedom of
expression therefore neither corresponded to a pressing social need,
nor was it proportionate to the legitimate aim pursued. It thus was
not “necessary in a democratic society”.
It
follows that there has been a violation of Article 10 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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
The
applicant claimed 28,084 Slovakian korunas
(SKK) in compensation for pecuniary damage. That sum comprised SKK
10,000 for his legal representation in the criminal proceedings in
issue, SKK 2,284 for the applicant’s travel expenses related to
his participation at court hearings in Košice, SKK 800
corresponding to the costs of the criminal proceedings which the
applicant had been obliged to reimburse and SKK 15,000 corresponding
to the pecuniary penalty imposed. As regards the last mentioned
sum, the applicant claimed it so that he could reimburse the company
which had paid it on his behalf.
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.
The
Government argued that (i) the pecuniary penalty imposed had been
paid by a private company and not by the applicant himself, (ii) the
applicant had not shown that he had incurred the sum related to his
travel expenses and (iii) the claim related to legal representation
in the domestic proceedings and their cost fell to be examined under
a separate head together with other costs and expenses incurred by
the applicant.
As
regards the alleged non-pecuniary damage, the Government contended
that it was exaggerated.
The
Court notes that the sum corresponding to the pecuniary penalty
imposed on the applicant had been paid on his behalf by a private
company on 10 December 2002, and that that company has been in
liquidation since 15 January 2005. The applicant has not explained
under which circumstances the payment was made and he does not allege
that he is under any legal obligation to return that sum to the
company. In these circumstances, the Court dismisses this part of the
claim for pecuniary damage. As regards the claims related to legal
representation in the domestic proceedings and their cost as well as
the claim concerning travelling expenses, they fall to be addressed
under the head of “Costs and expenses” below.
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
The
applicant claimed EUR 4,860 in respect of his legal representation
before the Court. In accordance with the contract which he had
concluded with Ms Dlugošová, that sum covered also the
period during which the applicant had been formally represented by Mr
Hrubala.
The
Government argued that Ms Dlugošová represented the
applicant from 8 May 2003. Any award should therefore relate only to
the period subsequent to that date. They further stated that
compensation should be granted only for the costs which can be said
to be reasonable as to the quantum.
Having
regard to the documents before it, the Court grants the applicant EUR
350 in respect of his costs and expenses related to the domestic
proceedings. That sum corresponds approximately to the claims which
the Court decided to examine under this head (see paragraph 59
above).
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
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of
Article 10 of the Convention;
Holds
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
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
Registrar President
