European Court of Human Rights

 

 

 

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-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 27 August 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in an application (no. 23160/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Josip Stojanović (“the applicant”), on 1 March 2009.




  The applicant was represented by Ms S. Gašić, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.




  The applicant alleged in particular that by ordering him to pay damages for defaming a politician the domestic courts had violated his freedom of expression.




  On 10 November 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




  The applicant was born in 1940 and lives in Zagreb.




  On 4 April 1997 the weekly magazine Imperijal published two articles entitled “By exposing H.’s machinations I did not set up HDZ (Iznošenjem [H-ovih] makinacija nisam podvalio HDZ-u)” and “Dr I.V. fiercely attacked Dr. Josip Stojanović (Dr [I.V.] žestoko napao dr. Josipa Stojanovića)”. The front page of the magazine featured the title: “By exposing H.’s machinations I did not set up President T. (Razotkrivši [H-ove] makinacije nisam podvalio predsjedniku [T.-u])”.




  On 2 May 1997 Imperijal published a third article entitled “H. gets involved again (Još jedan [H-ov] angažman)”.




  The first article contained an interview with the applicant in which he criticised the policy of his colleague from the same ruling political party, HDZ, Mr A.H., who was at the time the Minister of Health.




  The second article reproduced a telephone conversation between the applicant and his party’s general secretary, Dr I.V. The author of the article claimed to have overheard the conversation. According to the article, Dr I.V. had called the applicant from the party’s headquarters to enforce party discipline by asking him to retract some statements made in a previous interview given to the same magazine and to refrain from further public criticism of A.H. The article suggested that the applicant tell Dr I.V., inter alia, the following:

“... 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 ...”




  The third article claimed that A.H. was a member of the executive board of a private polyclinic which was the first health care institution in Croatia equipped with an MRI scanner. It further suggested that the Ministry of Health had refused to grant an operating licence to another similar institution that would have been equipped with the same device, and that A.H., as the Minister of Health, had thereby used his political position to prevent competition.




  On 16 September 1997 Mr A.H. brought a civil action for defamation against the company that publishes the magazine Imperijal, Imperijal Media d.d. (hereafter: “the publishing company”) and the applicant, in the Zagreb Municipal Court (Općinski sud u Zagrebu). He sought a court order that the defendants should pay him jointly and severally 250,000 Croatian kunas (HRK) in compensation for non-pecuniary damage. He argued that the defendants, by referring to his actions as “machinations”, as well as by publishing untrue statements that he sat on ten supervisory boards, that he would not allow the applicant to become a professor as long as he was the Minister, and that he had used his political position to refuse a licence to a private polyclinic with a view to preventing competition, had harmed his reputation.




  At a hearing held on 18 December 1998 the court heard the applicant, who admitted that he had received a telephone call from Dr I.V. under the circumstances described in the second article but that, contrary to what was reported in that article, he had actually told him the following:

“... 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.”




  In the course of the proceedings the court also obtained and consulted the record of the discussion held during the HDZ round table on health care of 15 October 1996. The relevant part of the record reads as follows:

“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.”




  On 17 April 2000 the Municipal Court gave judgment, allowing the plaintiff’s claim in the part which concerned the publishing company. In particular, it found that by publishing the three articles in question the publishing company had tarnished A.H.’s reputation. The court thus ordered the publishing company to publish the judgment in its weekly magazine Imperijal, to pay A.H. HRK 70,000 in compensation for non-pecuniary damage, together with the statutory default interest running from the adoption of the judgment until payment, as well as to pay him HRK 17,138 in costs. On the other hand, it dismissed A.H.’s action in so far as it concerned the applicant, finding no proof that the applicant had authorised the publication of the first and the second article. Given that the third article had been written by a journalist of Imperijal, it was beyond dispute that the applicant could not have been held liable for its content. The relevant part of that judgment reads as follows:

“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.”




  Following an appeal by the plaintiff, on 30 April 2002 the Zagreb County Court (Županijski sud u Zagrebu) upheld the first-instance judgment but reduced the amount of damages and costs payable to A.H. by the publishing company to HRK 50,000 and the costs to HRK 12,241.60. However, it quashed the first-instance judgment in its part concerning the applicant, in particular his liability for the first and the second article, and remitted the case for a fresh decision. The relevant part of that judgment reads as follows:

“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.”




  On 4 July 2002 the Zagreb Commercial Court (Trgovački sud u Zagrebu) opened (summary) bankruptcy proceedings against the publishing company and on the same day closed them finding that the company’s assets were not sufficient to cover even the costs of the bankruptcy proceedings. On 15 April 2003 the same court deleted that company from the register of commercial companies.




  In the resumed civil proceedings for defamation, at the hearing held on 21 May 2003 the court again heard the applicant who, as regards the telephone conversation between him and Dr I.V., testified that he had mentioned supervisory boards in that conversation by saying:

“... 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.”




  On 21 May 2003 the Zagreb Municipal Court gave judgment, ordering the applicant to pay A.H. HRK 30,000 in compensation for non-pecuniary damage, together with the statutory default interest running from the adoption of the judgment until payment, and HRK 23,088 in costs.




  The court found that the word “machinations” undoubtedly had a negative connotation and indicated dishonest behaviour. Its use to describe the plaintiff’s actions was therefore likely to harm his dignity, honour and reputation and cause him mental distress. Since in his testimony before the court the applicant had stated that he agreed with the title of the first article containing the impugned expression, it was irrelevant whether he had actually used it in his interview or whether the title of the article had been formulated by the journalist who had interviewed him. In particular, the court held as follows:

“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 ...”




  The court also found that the allegations that the plaintiff sat on ten supervisory boards and that he had said that he would not allow the applicant to become a professor as long as he was the Minister, were also harmful to the plaintiff’s dignity, honour and reputation. The first allegation depicted the plaintiff as a person enjoying an affluent life with high earnings, while others had no money to buy bread and the health care system was in a critical financial state. The second allegation portrayed the plaintiff as a person who used his political position to harm others. The court further established that these allegations were untrue. First, the plaintiff did not sit on ten supervisory boards but on one executive board, for which he did not receive remuneration. Second, the plaintiff had never said that the applicant would not become a professor as long as he was the Minister. Rather, the plaintiff had said on the occasion that the applicant would never become a professor because he did not meet the relevant requirements. Despite the applicant’s arguments that he had not authorised publication of the content of the telephone conversation between him and Dr I.V. and that the second article did not accurately reflect the content of that conversation, the court nevertheless held the applicant liable for injury to A.H.’s reputation. It held, inter alia, that even if the author of the second article had made up the content of the telephone conversation himself, this could not have exonerated the applicant from liability, since, knowing that the article contained untruths, he could have been expected to deny published defamatory statements as inaccurate and to have asked the magazine to publish his denial. In particular, the court held as follows:

“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.”




  In determining the amount of non-pecuniary damages, the court took into account that 2,638 copies of the issue of Imperijal in which the impugned articles had been published had been sold. In particular, as regards the award of damages, the court held as follows:

“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.”




  By a decision of 12 July 2005 the Zagreb Municipal Court rectified its judgment of 21 May 2003 (see paragraph 18 above) so that it ordered not only the applicant but also the publishing company to pay, together with the applicant, jointly and severally (solidarno), HRK 30,000 to A.H. in compensation for non-pecuniary damage, together with the statutory default interest running from the adoption of the judgment until payment, and HRK 23,088 in costs.




  On 8 November 2005 the Zagreb County Court dismissed an appeal by the applicant and upheld the first-instance judgment of 21 May 2003 as rectified by the decision of 12 July 2005. The relevant part of that judgment reads as follows:

“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.”




  On 13 February 2006 the applicant paid A.H. HRK 74,622.33, namely the judgment debt.




  The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the second-instance judgment, alleging, inter alia, a violation of his constitutional right to freedom of expression.




  On 24 June 2008 the Constitutional Court dismissed the applicant’s constitutional complaint and served its judgment on his representative on 3 September 2008. The relevant part of that decision reads as follows:

“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




  The relevant part of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provides as follows:

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




  The Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia nos. 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99 and 88/01 - hereafter: “the 1978 Obligations Act”), which was in force between 1 October 1978 and 31 December 2005, was the legislation governing contracts and torts. According to that Act courts were entitled to award compensation for non-pecuniary damage caused, inter alia, by injury to one’s reputation and honour. The relevant provisions of the Obligations Act read as follows:

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




  The relevant part of the Public Information Act (Zakon o javnom priopćavanju, Official Gazette nos. 83/1996, 143/1998 (corrigendum), 96/2001 (amendments) and 69/2003 (consolidated text)), as in force at the material time, provided:

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




  The relevant part of the Code of Ethics of Croatian Journalists (Kodeks časti hrvatskih novinara, of 27 February 1993, applicable at the material time, reads as follows:

 “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




  The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/91, 91/1992, 58/93, 112/99, 88/01, 117/03, 88/05, 2/07, 84/08, 123/08, 57/11 and 148/11), reads as follows:

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




  The applicant complained that the first-instance judgment of 21 May 2003 (as rectified by the decision of 12 July 2005) and the second-instance judgment of 8 November 2005 had violated his freedom of thought and freedom of expression. In particular, he complained that he had been ordered to pay damages for tarnishing A.H.’s reputation, although he had never used the word “machinations” to describe A.H.’s actions, had not authorised publication of the content of the telephone conversation between him and Dr I.V., and even though the second article did not accurately reflect the content of that conversation. He relied on Articles 9 and 10 of the Convention.




  The Government contested this argument.




  The Court reiterates that it is master of the characterisation to be given in law to the facts of the case, and that it is therefore not bound by the characterisation given by the applicant or the Government. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, for example, Şerife Yiğit v. Turkey [GC], no. 3976/05, § 52, 2 November 2010; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009; and Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I).




  In the Court’s view the present case concerns the right to impart information and ideas, that is, expression of opinion in the media, which is protected by Article 10 of the Convention, and not freedom of thought, which is protected by Article 9 (see, mutatis mutandis, Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010). Therefore, this complaint falls to be examined solely under Article 10 of the Convention, 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. 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




  The Government disputed the admissibility of this complaint on two grounds. They argued that Article 10 was inapplicable and that, in any event, the applicant had failed to exhaust domestic remedies.

1.  Applicability of Article 10 of the Convention

(a)  The arguments of the parties




  The Government noted that before the domestic courts, including the Constitutional Court, the applicant had maintained that he was not the author of the statements for which he had been ordered to pay damages, and that they had been made up by the journalist who had interviewed him. They therefore concluded that, by insisting that the disputed statements were not his, the applicant had admitted that he had not actually imparted any ideas or information within the meaning of Article 10 of the Convention. In other words, the applicant in the present case could not have enjoyed the protection of that Article because he had not exercised his right to freedom of expression. If the Court were to hold otherwise and find a violation of Article 10 of the Convention, that would have led to an absurd situation, as it would have found a violation of the applicant’s right which the applicant himself claimed he had not exercised.




  The applicant replied that he had exercised his freedom of expression when giving an interview to a journalist from Imperijal in which he had criticised the policy of the Minister of Health. Even though the domestic courts’ judgments suggested that he had not been ordered to pay damages for what he had said in that interview but for its title and for what he had allegedly said in the telephone conversation with Dr I.V., the exercise of his freedom of expression had been stifled indirectly, as he had been sanctioned for something that he had not said (in that interview).

(b)  The Court’s assessment




  The Court reiterates that the extent of liability in defamation must not go beyond a person’s own words, and that an individual may not be held responsible for statements or allegations made by others, be it an editor or journalists (see Reznik v. Russia, no. 4977/05, § 45, 4 April 2013). Therefore, in a situation such as the one in the present case, where the applicant actually argues (see paragraph 38 above) that, by attributing to him, in connection with the interview in which he had criticised the policy of the Minister of Health, statements he had never made and ordering him to pay damages for those statements, the domestic courts had indirectly stifled the exercise of his freedom of expression, he may rely on the protection of Article 10 of the Convention. That is so because, if the applicant’s argument proves to be correct, the damages he was ordered to pay would be likely to discourage him from making criticisms of that kind in future (see, mutatis mutandis, Lingens v. Austria, 8 July 1986, § 44, Series A no. 103). The Court therefore finds that Article 10 of the Convention is applicable to the present case.




  It follows that the Government’s objection to the applicability of Article 10 of the Convention must be dismissed.

2.  Non-exhaustion of domestic remedies

(a)  The arguments of the parties




  Relying on the above arguments concerning inapplicability of Article 10 of the Convention (see paragraph 37 above), the Government further submitted that, even though the applicant had formally invoked that Article before the domestic courts, his main argument before those courts had been that he had not made the statements for which he had been ordered to pay damages. In the Government’s view, the domestic remedies would have been properly exhausted only if the applicant, without disputing that he had been the author of those statements, had complained that by making them he had exercised his freedom of expression. However, he had not done so.




  The applicant referred to the above arguments concerning applicability of Article 10 of the Convention (see paragraph 38 above) and submitted that by complaining of a violation of his freedom of expression before each of the domestic courts involved he had properly exhausted domestic remedies.

(b)  The Court’s assessment




  The Court notes, having regard to the Government’s arguments (see paragraph 41 above), that their objection of non-exhaustion of domestic remedies is closely related to their objection as regards inapplicability of Article 10 of the Convention (see paragraph 37 above). The Court thus refers to its findings as above, according to which the applicant in the present case may rely on Article 10 of the Convention (see paragraph 39 above). It further notes that he did raise the issue of freedom of expression before the domestic courts (see paragraphs 25-26 above).




  It follows that the Government’s objection of failure to exhaust domestic remedies must also be dismissed.




  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The arguments of the parties

(a)  The Government




  The Government submitted that, if the Court were to find Article 10 of the Convention applicable in the present case, they would admit that there had been an interference with the applicant’s freedom of expression. However, that interference had been lawful, pursued a legitimate aim and was necessary in a democratic society.




  The Government argued that the judgment whereby the domestic courts had ordered the applicant to pay damages to A.H. had a basis in law, in particular on sections 154 and 200 of the Obligations Act (see paragraph 28 above).




  The interference had also pursued a legitimate aim, namely that of protecting the reputation and rights of others, in this case, the plaintiff A.H., who had been found to be a victim of insult and defamation, for which, as well as the magazine Imperijal, the applicant had also been found liable.




  As to whether the interference had been “necessary in a democratic society”, the Government pointed out that the applicant had not been ordered to pay damages for his critical remarks about the policy of the Minister of Health, but because the title of the article in which those remarks had been published contained the word “machinations”, which had negative connotations, as it implied dishonourable and dishonest behaviour. That value judgment about the actions of A.H. had no basis in fact whatsoever, let alone in the facts mentioned in the article. Likewise, as regards the second article, the applicant had been ordered to pay damages for making statements presented as fact which the domestic courts had found to be indubitably untrue. Those statements presented as fact had also implied dishonourable and dishonest behaviour, and thus they were defamatory to the person concerned.




  As to the proportionality of the interference, the Government emphasised that for his defamatory statements the applicant had been ordered to pay civil damages in the amount of HRK 30,000, rather than being convicted of a criminal offence: the amount of damages in their view was a moderate sum.




.  The Government further submitted, relying on the view of the domestic courts (see paragraph 20 above), that if the applicant had been aware that the published information was not accurate, it could have been expected that he would ask the magazine Imperijal to publish a denial, which he had not done.




  Having regard to the above, the Government argued that the domestic courts’ judgments in the present case had not been in violation of Article 10 of the Convention.

(b)  The applicant




  The applicant disagreed. He maintained his view that he had not had any intention of insulting A.H. in his private or professional capacity (as a doctor). Instead, he had been freely expressing his views, opinions and value judgments on the state of health care in Croatia. Nevertheless, he had been sanctioned for making critical remarks and expressing his disagreement with the policy of development of the health care sector advocated by A.H.




  The applicant challenged in particular the Government’s contention that the amount of damages he had been ordered to pay had been moderate. He explained that, apart from the principal sum of HRK 30,000, he had also had to pay HRK 12,169.04 as the statutory default interest accrued on the principal amount of damages, the costs of proceedings in the amount of HRK 23,088 and the statutory default interest accrued on the principal amount of costs, that is, a total of HRK 74,622.33 (see paragraph 24 above). That amount had at the time of payment been equal to some 10,000 euros. Given that at that time the applicant was already retired and that the amount in question was more than his annual income, it could not have been argued that the sum he had paid was moderate.




  As regards the Government’s argument that he should have denied the published defamatory statements as inaccurate (see paragraph 51 above), the applicant argued that, pursuant to section 31(2) of the Public Information Act (see paragraph 29 above), it was A.H. and not him who should have denied them.

2.  The Court’s assessment

(a)  Whether there was interference




  In the light of the above finding, that the applicant may rely on Article 10 of the Convention in the present case (see paragraphs 43-44 above), the Court considers that the Zagreb Municipal Court’s judgment of 21 May 2003 (as rectified by that court’s decision of 12 July 2005), which was upheld by the Zagreb County Court’s judgment of 8 November 2005, ordering the applicant to pay jointly and severally with the publishing company HRK 30,000 to A.H. as compensation for non-pecuniary damage sustained for the defamatory statements contained in the title of the first article and in the second article, and HRK 23,088 in costs, constituted an interference with his right to freedom of expression.

(b)  Lawfulness and legitimate aim




  The Court also accepts that the interference was “prescribed by law”, namely by sections 154 and 200 of the Obligations Act (see paragraph 28 above), and that it pursued a legitimate aim, as it was intended to protect the reputation or rights of others within the meaning of Article 10 § 2 of the Convention. Having established that the interference with the applicant’s freedom of expression in the present case was lawful and pursued a legitimate aim, the only question for the Court to determine is whether that interference was “necessary in a democratic society”.

(c)  “Necessary in a democratic society”

(i)  The applicable principles




  In this respect, the following general principles emerge from the Court’s case-law (see, for example, Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 54, 22 October 2009):

“(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 ...”




  Turning to the particular circumstances of the present case, the Court observes that the domestic courts first found the publishing company solely liable for publishing in its weekly magazine Imperijal the three articles in question, and ordered it to pay A.H. HRK 50,000 in compensation for non-pecuniary damage sustained by the injury to his reputation (see paragraphs 14-15 above). However, those courts later on found that the applicant was also liable for two of those three articles, and ordered him to pay A.H. jointly and severally with the publishing company HRK 30,000 of the aforementioned 50,000 HRK of non-pecuniary damages (see paragraphs 18 and 22-23 above). In particular, the applicant was found liable (jointly and severally with the publishing company) for the fact that the word “machinations” was used in the title of the first article to describe A.H.’s actions, as well as for the two defamatory statements he had allegedly made during the telephone conversation between him and Dr I.V., the content of which was reported in the second article. Given that the applicant claimed that in his interview he had never used the word “machinations”, that he had not authorised publication of the telephone conversation in question and that the second article did not accurately reflect the content of that conversation, the Court is first required to ascertain whether the applicant’s tort liability for defamation in the present case went beyond his own words (see paragraph 39 above).

(ii)  The first article




  In the first article, which was in fact an interview with the applicant, he criticised the policies of A.H., who was the Minister of Health at the time. In respect of that article the domestic courts found the applicant (and the publishing company jointly and severally) liable for damages only because of the use of the word “machinations” to describe A.H.’s actions, contained in the title of the article. In particular, the courts held the applicant liable for harming A.H.’s reputation despite the fact that he had not used the impugned expression in the interview and even though it was clear that the title - for which under section 14(3) of the Public Information Act an editor-in-chief was exclusively liable (see paragraph 29 above) - had been formulated by the journalist who had interviewed the applicant. They held that it was sufficient that the applicant, in his testimony before the court, had accepted the title (see paragraph 19 above).




  The Court finds this conclusion by the domestic courts difficult to sustain. For the Court it is one thing to describe someone’s actions as “machinations” in the press, and quite another to agree with such a description, when formulated by someone else and published in the press, in the courtroom. The Court is aware that under certain circumstances slandering someone or reiterating earlier libellous statement in a courtroom may constitute a separate cause of action for defamation. However, in the present case the cause of action was the applicant’s statements to the media, and not those he made before the first-instance court in the ensuing civil proceedings. In particular, the domestic courts held the applicant liable for damages because the word “machinations” was used in the title of the article to describe A.H.’s actions, and not because the applicant subsequently agreed with that description at the hearing before the first-instance court (see paragraph 23 above). In those circumstances, as the Court already observed above (see paragraph 60 above), under section 14(3) of the Public Information Act any liability for the words in the title of the article could have been imputed only to the editor-in-chief of the magazine and not to the applicant himself.




  Therefore, as regards the title of the first article, it cannot be said that the reasons adduced by the domestic courts for holding the applicant liable (jointly and severally with the publishing company) for the injury to A.H.’s reputation were “relevant and sufficient” and thus capable of justifying the interference with his freedom of expression. Rather, by holding the applicant liable for the title of the first article those courts extended his liability in defamation beyond his own words.

(iii)  The second article




  The second article contained extracts from a telephone conversation between the applicant and his political party’s secretary-general Dr I.V., in which the applicant allegedly stated that it was kept secret from the public that A.H. sat on ten supervisory boards and was receiving a high remuneration on that account. In that conversation the applicant also allegedly accused A.H. of threatening him that he would not become a professor as long as A.H. was the Minister. The domestic courts found that these allegations were both untrue and defamatory. However, they had difficulties to establish, with the requisite degree of certainty, whether the applicant had actually made those allegations, and if so whether he had authorised the publication of the article, both of which the applicant denied. The courts eventually found, basing themselves exclusively on the testimony of the journalist of Imperijal who had interviewed the applicant, that the applicant had retold the content of the telephone conversation to the journalist, precisely so that he could publish it. They therefore held the applicant (together with the publishing company jointly and severally) liable for tarnishing A.H.’s reputation. The domestic courts also held that even if the two defamatory statements were a complete fabrication by the journalist, this could not have exonerated the applicant from liability, as he, knowing that the article contained untruths, had not denied them nor asked the magazine to publish a denial (see paragraph 20 above).




  As regards the issue of whether the applicant authorised the publication of what was said during the telephone conversation between him and Dr I.V., the Court notes that the Zagreb County Court, in its decision of 30 April 2002, held that the information in question by its nature did not require authorisation (see paragraph 15 above). The Court therefore finds that the issue of authorisation in the present case is of no relevance for examining whether the applicant’s right of freedom of expression was breached.




  As regards the issue of whether the second article accurately reflected what the applicant had said during the telephone conversation in question, the Court considers, for the reasons set out below, that this issue should be analysed separately for each defamatory statement. It reiterates in this connection that it is sensitive to the subsidiary nature of its role, and that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Europapress Holding d.o.o., cited above, § 62). It has however held that such elements existed in cases where the decisions of the domestic authorities had not been based on “an acceptable assessment of the relevant facts”, and has accordingly found violations of, for example, Article 10 (see Chemodurov v. Russia, no. 72683/01, §§ 28-29, 31 July 2007), Article 11 (see Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, §§ 86-88, 21 October 2010) and even Article 6 § 1 (see Khamidov v. Russia, no. 72118/01, §§ 170-175, 15 November 2007).

(α)  As regards the applicant’s alleged statement concerning A.H.’s membership of supervisory boards




  As regards the alleged statement by the applicant that A.H. sat on ten supervisory boards and was receiving a high remuneration on that account, the Court finds, having compared the text of that statement as published in Imperijal (see paragraph 9 above) with the applicant’s testimonies before the first-instance court (see paragraphs 12 and 17 above), that the domestic courts were entitled to consider that the applicant had indeed made such a statement during the telephone conversation with Dr I.V. and that it had been accurately reported in the second article. Namely, in his testimony before the first-instance court the applicant admitted that during the telephone conversation in question he had mentioned membership of about ten supervisory boards and receiving remuneration on that account. While it is true that he argued that in so doing he had never mentioned A.H.’s name, he, in his own admission, added that he had mentioned the Minister of Health, and that A.H. had been the Minister of Health at the time (see paragraph 17 above). Therefore, there are no elements that would lead the Court to depart from the finding of the domestic courts that the applicant had indeed made the statement in question and that it was accurately reported in the second article. That finding was therefore based on an acceptable assessment of the relevant facts.




  The Court further accepts the domestic courts’ view that accusing A.H. of sitting on ten supervisory boards and receiving a high level of remuneration for doing so was a factual statement, which had been proved to be incorrect. The Court also agrees with the domestic courts that the statement in question was indeed defamatory, as it insinuated that A.H. had unduly benefited financially from his political position (see paragraph 20 above).




  Consequently, since the applicant’s liability did not go beyond his own words, and given that the statement in question was both false and defamatory, the Court considers that as regards that statement the reasons adduced by the domestic courts for holding the applicant liable (jointly and severally with the publishing company) for the injury to A.H.’s reputation were “relevant and sufficient” to justify the interference with his freedom of expression.

(β)  As regards the applicant’s statement concerning A.H.’s alleged threats to his career advancement




  As regards the applicant’s statement that A.H. had threatened him that he would not become a professor, the Court observes that there is an important discrepancy between the text of that statement as published in Imperijal (see paragraph 9 above) and the applicant’s testimony before the first-instance court (see paragraphs 12 and 17 above). In particular, while the applicant testified that during the telephone conversation with Dr I.V. he had indeed mentioned A.H.’s threats that he would never become a professor (see paragraphs 12 and 17 above), there is nothing in that testimony that would suggest that the applicant also said that in doing so A.H. had used the words “as long as I am the Minister”, as was reported in the second article. Whether the applicant said that A.H. had threatened him by using those words or not, is important because the answer to that question is decisive for the issue of whether the applicant’s statement may be regarded as a factual statement or a value judgment. In this connection the Court reiterates that drawing inferences from the existing facts, such as, for example, attributing or imputing motives or intentions to someone’s behaviour, is generally intended to convey opinions, and is thus more akin to value judgments (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 50, ECHR 1999-VIII). Therefore, if the applicant in the telephone conversation at issue told Dr I.V. that A.H. had threatened him by using the words “as long as I am the Minister”, his statement is to be viewed as a statement of fact and thus susceptible of proof. On the other hand, if the applicant told his interlocutor during that conversation about A.H.’s threats without referring to the impugned phrase, his statements are to be seen as value judgments. If the latter is the case, he cannot be blamed for having understood what A.H. said to him at the round table on health care of 15 October 1996 as a threat because, having regard to the minutes of that round table (see paragraph 13 above), he had, in the Court’s view, a sufficient factual basis to support that belief.




  From the domestic courts’ judgments it would appear that they found it established that during the telephone conversation in question the applicant had indeed told his interlocutor that A.H. had threatened him that he would not become a professor as long as A.H. was the Minister, and thus qualified the applicant’s statement as a statement of fact, which he had later on been unable to prove (see paragraph 20 above). However, having regard to the importance of the principle that an individual’s liability in defamation must not extend beyond his or her own words, as well as the potential chilling effects which breaches of that principle can have on freedom of expression (see paragraph 39 above), the Court finds that there are cogent elements leading it to depart from that factual finding of the domestic courts in the present case. Firstly, from the domestic courts’ finding that the applicant retold the content of the telephone conversation to the journalist so that he could publish it, it does not necessarily follow that the journalist reported it accurately. As Dr I.V. and three other witnesses were unable to confirm that the applicant had used the impugned phrase, and since the applicant categorically denied having done so, it would seem that in the absence of other evidence (such as audio recording of the telephone conversation in question or of the subsequent discussion between the applicant and the journalist) this finding was based exclusively on the testimony of the journalist, whose credibility appears dubious, as he clearly had an interest in proving that what he had published was accurate. To defer to the factual findings of the domestic courts in such circumstances and to accept that plaintiffs in defamation cases would have to meet such a low standard of proof would render meaningless the principle that liability in defamation must not go beyond one’s own words. Their finding that during the telephone conversation at issue the applicant had told his interlocutor that A.H. had threatened him by using the phrase “as long as I am the Minister”, was therefore not based on an acceptable assessment of the relevant facts. As a consequence thereof, the domestic courts mistakenly qualified the applicant’s statement as a statement of fact, rather than as a value judgment the veracity of which is not susceptible of proof. While it is true that value judgments may be excessive in the absence of any factual basis, the Court has already found this was not so in the present case (see paragraph 69 above).




  Furthermore, as regards that statement, the Court is likewise unable to accept the additional argument in the reasoning of the domestic courts, according to which even if the journalist had made up the content of the telephone conversation himself, that is, without any subsequent explanation by the applicant, this could not have exonerated the applicant from liability, since he could have been expected to deny published defamatory statements as inaccurate (see paragraph 20 above). The Court is unaware, and the Government did not furnish any evidence, of any statutory provision or any case-law of the domestic courts requiring defendants in defamation cases (civil or criminal) to deny or retract defamatory statements in order to be exempted from liability. On the contrary, as correctly pointed out by the applicant (see paragraph 55 above), it was A.H. who should have denied the published defamatory statements as he was, pursuant to section 31(2) of the Public Information Act (see paragraph 29 above), the only person in the present case who had the right to have such a denial published.




  Consequently, since the applicant’s liability as regards his statement that A.H. threatened him that he would not become a professor as long as A.H. was the Minister, went beyond his own words, that he was not required to deny it, and given that he had a sufficient factual basis to support his belief that A.H. had actually threatened him, the Court considers that, as regards that statement, the reasons adduced by the domestic courts for holding the applicant liable (jointly and severally with the publishing company) for the injury to A.H.’s reputation cannot be regarded as “relevant and sufficient” to justify the interference with his freedom of expression.

(iv)  Conclusion




  In the light of the foregoing, the Court concludes that the interference with the applicant’s freedom of expression in the form of the Zagreb Municipal Court’s judgment of 21 May 2003 (as rectified by that court’s decision of 12 July 2005) ordering the applicant to pay damages for the injury to A.H.’s reputation was not “necessary in a democratic society” in so far as it concerned the title of the first article and the applicant’s statement reproduced in the second article that A.H. had threatened him that he would not become a professor.

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




  The applicant also complained that the above-mentioned civil proceedings were unfair, and about their outcome. He relied on Article 6 § 1, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”




  The Court notes that the applicant complained about the outcome of the proceedings. However, unless the outcome was arbitrary, the Court is unable to examine it under Article 6 § 1 of the Convention. Moreover, there is no evidence to suggest that the courts lacked impartiality or that the proceedings were otherwise unfair. In any event, having regard to its findings under Article 10 above, the Court does not find it necessary to examine further to what extent this conclusion would affect the fairness of the proceedings.




  It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

III.  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 HRK 74,622.33 in compensation for pecuniary damage, which is the amount he had paid to A.H. following the Zagreb Municipal Court judgment of 21 May 2003. He also claimed HRK 50,000 in compensation for non-pecuniary damage.




  The Government contested these claims.




  As regards the applicant’s claim for pecuniary damage, the Court first notes that the sum sought corresponds to the amount of damages, costs of proceedings and the accrued statutory default interest the applicant paid in the execution of the Zagreb Municipal Court’s judgment of 21 May 2003 for defaming A.H. The Court further reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow - or allows only partial - reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection the Court notes that under section 428a of the Civil Procedure Act (see paragraph 31 above) an applicant may seek the reopening of the civil proceedings in respect of which the Court has found a violation of the Convention. Given that in the instant case it found a violation of Article 10 of the Convention as regards the title of the first article and one of the two applicant’s statements reproduced in the second article (see paragraph 73 above), the Court considers that in the present case the most appropriate way of repairing the consequences of that violation is to reopen the proceedings complained of. As it follows that the domestic law allows such reparation to be made, the Court considers that there is no call to award the applicant any sum in respect of pecuniary damage.




  On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards him EUR 1,500 under that head, plus any tax that may be chargeable on that amount.

B.  Costs and expenses




  The applicant also claimed HRK 41,348 for costs and expenses incurred before the domestic courts and HRK 10,518 for those incurred before the Court.




  The Government contested these claims.




  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,600 for costs and expenses incurred in the proceedings before it, plus any tax that may be chargeable on the applicant. On the other hand, as regards the costs and expenses incurred in the domestic proceedings, the Court is of the opinion that they must be rejected given that the applicant will be able to have (the relevant part of) those costs reimbursed in the proceedings following his petition for reopening (see paragraph 80 above, and Vinčić and Others v. Serbia, nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, § 65, 1 December 2009).

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

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.

   Søren Nielsen                                                        Isabelle Berro-Lefèvre
       Registrar                                                                      President