6. Case of Stojanovic v. Croatia

8/13/2019 6. Case of Stojanovic v. Croatia

1/34

FIRST SECTION

CASE OF STOJANOVI 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.


2/34


3/34

STOJANOVI v. CROATIA JUDGMENT 1

In the case of Stojanovi v. Croatia,The European Court of Human Rights (First Section), sitting as a

Chamber composed of:Isabelle Berro-Lefvre,President,

Elisabeth Steiner,

Khanlar Hajiyev,

Mirjana Lazarova Trajkovska,

Julia Laffranque,

Ksenija Turkovi,Dmitry Dedov,judges,

and Sren Nielsen, Section Registrar,

Having deliberated in private on 27 August 2013,

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

PROCEDURE

1. 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 Stojanovi (theapplicant), on 1 March 2009.

2. The applicant was represented by Ms S. Gai, an advocate practising

in Zagreb. The Croatian Government (the Government) were representedby their Agent, Mrs . Stanik.

3. 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.

4. 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

5. The applicant was born in 1940 and lives in Zagreb.

6. On 4 April 1997 the weekly magazine Imperijal published two

articles entitled By exposing H.s machinations I did not set up HDZ(Iznoenjem [H-ovih] makinacija nisam podvalio HDZ-u) and Dr I.V.fiercely attacked Dr. Josip Stojanovi (Dr [I.V.] estoko napao dr. Josipa


4/34

2 STOJANOVI v. CROATIA JUDGMENT

Stojanovia). The front page of the magazine featured the title: Byexposing H.s machinations I did not set up President T. (Razotkrivi [H-

ove] makinacije nisam podvalio predsjedniku [T.-u]).7. On 2 May 1997 Imperijal published a third article entitled H. gets

involved again (Jo jedan [H-ov] angaman).8. 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.

9. The second article reproduced a telephone conversation between the

applicant and his partys general secretary, Dr I.V. The author of the articleclaimed to have overheard the conversation. According to the article,

Dr I.V. had called the applicant from the partys headquarters to enforceparty discipline by asking him to retract some statements made in a previous

interview given to the same magazine and to refrain from further publiccriticism 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 keptsecret from the public that, apart from receiving a Ministers salary, A.H. sits onanother 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

Stojanovi would not become a professor ...

10. 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.

11. 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 theapplicant, in the Zagreb Municipal Court (Opinski sud u Zagrebu). Hesought 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 actionsas machinations,as well as by publishing untrue statements that he sat onten 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.

12. 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:


5/34


... I pay my own bills, while many sit on a number of supervisory boards, receiveremuneration for doing so and have other privileges.

The applicant claimed that in so doing he had not mentioned A.H. Hefurther testified:

I also[reminded] Dr I.V. on that occasion ... that A.H. had threatened me at a HDZround 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.

13. 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 Joa Stojanovi being inexpert ... [and] his slurconcerning the choice of [allegedly] bad technology, that technology was chosen, inhis 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 Joa would never become because you do not have the professional andscientific qualities.

14. On 17 April 2000 the Municipal Court gave judgment, allowing the

plaintiffs claim in the part which concerned the publishing company. Inparticular, it found that by publishing the three articles in question the

publishing company had tarnished A.H.s reputation. The court thus orderedthe publishing company to publish the judgment in its weekly magazine

Imperijal, to pay A.H. HRK 70,000 in compensation for non-pecuniarydamage, 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 itconcerned 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 ofImperijal, 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 plaintiffs claim is well-founded in part as regards the first defendant [thepublishing 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

weeklyImperijal, 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 alsoundisputed 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 machinationsfrom the title of that interview had not been put in


6/34


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 hehad 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 firstdefendant 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 machinationswith 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 assomething 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 samereasons 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 plaintiffs work and person. It is allthe 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 plaintiffs 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


7/34


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 longas 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 notauthorise 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 conversationbetween 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 plaintiffs claim against [the applicant]was dismissed as unfounded, because [the applicants] 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

plaintiffs name on that occasion: this was confirmed by Dr I.V., whom the court alsoheard as a witness. Furthermore, [the applicant] stated in his testimony that after the

publication of the telephone conversation he had not denied it inImperijalbut 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 ofImperijal,

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 theentire telephone conversation because the speakerphone was turned on, and that [theapplicant] 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.

15. Following an appeal by the plaintiff, on 30 April 2002 the Zagreb

County Court (upanijski sud u Zagrebu) upheld the first-instance judgmentbut 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.


8/34


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 judgmentreads 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 requireauthorisation.

...

... [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.Hs testimony wasidentical...

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

threatsto his [career] advancement.


9/34


To that it should be added that [the applicant] also testified that the word

machinationsreferred to how A.H. acted toward him personally.

The first-instance court failed to assess all the aforementioned.

16. On 4 July 2002 the Zagreb Commercial Court (Trgovaki sud uZagrebu) opened (summary) bankruptcy proceedings against the publishing

company and on the same day closed them finding that the company sassets 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.

17. 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

plaintiffs name, the applicant replied:

No, but replying to Dr I.V.s questions I mentioned the Minister of Health, and atthat 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 heshould 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.

18. 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.

19. The court found that the word machinations undoubtedly had anegative connotation and indicated dishonest behaviour. Its use to describe

the plaintiffs actions was therefore likely to harm his dignity, honour andreputation and cause him mental distress. Since in his testimony before thecourt 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., ajournalist 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


10/34


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 journalistsinterpretation 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 machinationshad not been included in the title with any malicious intent,and that it had referred to the plaintiffs behaviour towards him personally, and that heinterpreted the meaning of that word as trickery, cunning, deception and scheming.

Since the word machinationsundoubtedly has negative connotations and indicatesdishonourable 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 itwas 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 ...

20. 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 plaintiffs dignity, honour and reputation. The first allegationdepicted 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 theplaintiff 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 applicants arguments that he had not authorisedpublication of the content of the telephone conversation between him and


11/34


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 secondarticle 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 telephoneconversation 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 supervisoryboards. 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 plaintiffs 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 bymembers 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 defendantsprofessional 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 longas 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 defendants contention that he had notgiven 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


12/34


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 plaintiffs time as Minister of Health, and had pointed out that the defendant haddone 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 plaintiffs name] orsupervisory 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 thetestimony 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 conversationhe 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 astinky 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 ofImperijal[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.


13/34


21. 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, asregards the award of damages, the court held as follows:

From the plaintiffs testimony, which this court accepted as ... very convincing, itfollows 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 usethics! All this also negatively affected his family, because some friends started

turning their backs on them, and they also received unpleasant anonymous telephonecalls. 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 theamount of 30,000 [Croatian] kunas, while taking into account the fact that these

statements were published in the weeklyImperijal, and ... 2,638 copies of that issue of

Imperijal were sold.

22. 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.

23. On 8 November 2005 the Zagreb County Court dismissed an appealby 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-instancecourt 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


14/34


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: Byexposing H.s machinations I did not set up HDZhad 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 timethe 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 inhis 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.

24. On 13 February 2006 the applicant paid A.H. HRK 74,622.33,

namely the judgment debt.

25. 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.26. On 24 June 2008 the Constitutional Court dismissed the applicants

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

27. 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:


15/34


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 ofreporting 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

28. 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 1978Obligations Act), which was in force between 1 October 1978 and31 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 ones reputation andhonour. 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 heor she proves that the damage occurred through no fault of his or her own.

Damage

Section 155

Damage is diminution of ones property (actual damage) or prevention of itsincrease (lost profits), as well as the infliction of physical or mental pain or fear (non-

pecuniary damage).

...


16/34


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 theexpense 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 anguishcaused 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 bejointly 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.


17/34


C. The Public Information Act

29. The relevant part of the Public Information Act (Zakon o javnompriopavanju, 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


(7) An interview is a conversation or statement in written or oral form intended forpublication 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


(2) The editor-in-chief [of a information medium] is liable, in accordance with thelaw, 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 certaininformation 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, throughinformation about personal or family life, or by any other information published in the

media, violates another persons privacy, dignity, reputation, honour or any otherconstitutionally or statutorily protected right.

Exemption from liability for damage

Section 23(1)

The publisher shall not be liable in damages:

1. ...


18/34


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 thepublication of which was in the public interest, and if the information wasgiven in good faith.

Publication of a correction


(1) Newspapers and other periodicals as well as radio and television stations arebound 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

30. The relevant part of the Code of Ethics of Croatian Journalists

(Kodeks asti hrvatskih novinara, of 27 February 1993, applicable at thematerial time, reads as follows:

A journalist is bound to publish true, balanced and verified information. He or sheshall 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

31. The relevant provision of the Civil Procedure Act (Zakon o

parninom postupku, Official Gazette of the Socialist Federal Republic ofYugoslavia 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:


19/34


Section 221a

If, on the basis of the evidence taken (section 8), the court cannot establish a particularfact 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 humanright 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

32. 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 hadnever used the word machinations to describe A.H.s actions, had notauthorised 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.

33. The Government contested this argument.

34. 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


20/34


characterised by the facts alleged in it and not merely by the legal grounds

or arguments relied on (see, for example, erife Yiit 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 Decisions1998-I).

35. In the Courts view the present case concerns the right to impartinformation 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,Balenovi 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 includefreedom 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

36. 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

37. The Government noted that before the domestic courts, including the

Constitutional Court, the applicant had maintained that he was not theauthor 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


21/34


situation, as it would have found a violation of the applicants right whichthe applicant himself claimed he had not exercised.

38. The applicant replied that he had exercised his freedom ofexpression when giving an interview to a journalist fromImperijalin 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 paydamages 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 Courts assessment

39. The Court reiterates that the extent of liability in defamation must

not go beyond a persons own words, and that an individual may not be heldresponsible 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 applicants argument

proves to be correct, the damages he was ordered to pay would be likely todiscourage 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.

40. It follows that the Governments objection to the applicability ofArticle 10 of the Convention must be dismissed.

2. Non-exhaustion of domestic remedies

(a) The arguments of the parties

41. Relying on the above arguments concerning inapplicability ofArticle 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 Governments view, the domestic remedies wouldhave 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.


22/34


42. 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 expressionbefore each of the domestic courts involved he had properly exhausted

domestic remedies.

(b) The Courts assessment

43. The Court notes, having regard to the Governments arguments (seeparagraph 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).

44. It follows that the Governments objection of failure to exhaustdomestic remedies must also be dismissed.

45. 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

46. 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 applicants freedom of expression.However, that interference had been lawful, pursued a legitimate aim and

was necessary in a democratic society.

47. 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 paragraph28 above).

48. 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 magazineImperijal, the applicant had also been found liable.

49. As to whether the interference had been necessary in a democraticsociety, the Government pointed out that the applicant had not beenordered 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


23/34


remarks had been published contained the word machinations, which hadnegative connotations, as it implied dishonourable and dishonest behaviour.

That value judgment about the actions of A.H. had no basis in factwhatsoever, 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.

50. 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.51. 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.

52. Having regard to the above, the Government argued that the

domestic courtsjudgments in the present case had not been in violation ofArticle 10 of the Convention.

(b) The applicant

53. 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.

54. The applicant challenged in particular the Governments contentionthat 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 theprincipal 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.

55. As regards the Governments argument that he should have deniedthe published defamatory statements as inaccurate (see paragraph 51 above),


24/34


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 Courts assessment

(a) Whether there was interference

56. 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 Courts judgment of21 May 2003 (as rectified by that courts decision of 12 July 2005), whichwas upheld by the Zagreb County Courts 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 damagesustained 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

57. 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 applicantsfreedom of expression in the present case was lawful and pursued alegitimate 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

58. In this respect, the following general principles emerge from the

Courts 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 determinewhether 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 isreconcilable with freedom of expression as protected by Article 10...

(b) The Courts task in exercising its supervisory function is not to take the place ofthe 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


25/34


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 thoughthere 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 thedegree 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 ...

59. 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 inquestion, 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.sactions, 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 hadnot 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 applicants tort liabilityfor defamation in the present case went beyond his own words (see

paragraph 39 above).


26/34


(ii) The first article

60. 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 thetime. 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 hadnot used the impugned expression in the interview and even though it was

clear that the titlefor which under section 14(3) of the Public InformationAct 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).

61. The Court finds this conclusion by the domestic courts difficult to

sustain. For the Court it is one thing to describe someone s actions asmachinations in the press, and quite another to agree with such adescription, 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 applicants 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 fordamages because the word machinations was used in the title of thearticle to describe A.H.s actions, and not because the applicantsubsequently 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.

62. 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.sreputation were relevant and sufficientand thus capable of justifying theinterference 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

63. The second article contained extracts from a telephone conversation

between the applicant and his political partys secretary-general Dr I.V., inwhich the applicant allegedly stated that it was kept secret from the public


27/34


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 aprofessor 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 ofImperijalwho 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 ifthe 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).

64. 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 applicants right of freedom of expression wasbreached.

65. 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 Courts task to substitute its own assessment of

the facts for that of the domestic courts, and as a general rule it is for thosecourts 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 (seeEuropapress 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 beenbased on an acceptable assessment of the relevantfacts,and has accordingly found violations of, for example, Article 10 (seeChemodurov 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,


28/34


21 October 2010) and even Article 6 1 (see Khamidov v. Russia,

no. 72118/01, 170-175, 15 November 2007).

() As regards the applicants alleged statement concerning A.H.smembership of supervisory boards

66. 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 applicants testimonies beforethe 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 thetelephone 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.

67. The Court further accepts the domestic courts view that accusingA.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).

68. Consequently, since the applicants liability did not go beyond hisown 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 andseverally with the publishing company) for the injury to A.H.s reputationwere relevant and sufficient to justify the interference with his freedom ofexpression.

() As regards the applicants statement concerning A.H.s alleged threats tohis career advancement

69. As regards the applicants statement that A.H. had threatened himthat he would not become a professor, the Court observes that there is an

important discrepancy between the text of that statement as published in


29/34


Imperijal(see paragraph 9 above) and the applicants testimony before thefirst-instance court (see paragraphs 12 and 17 above). In particular, while

the applicant testified that during the telephone conversation with Dr I.V. hehad 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 inthe 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 maybe 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 someonesbehaviour, is generally intended to convey opinions, and is thus more akinto value judgments (seeNilsen 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 astatement of fact and thus susceptible of proof. On the other hand, if the

applicant told his interlocutor during that conversation about A.H.s threatswithout 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 Courts view, asufficient factual basis to support that belief.

70. From the domestic courtsjudgments it would appear that they foundit 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 applicants statement as a statement of fact, which he had lateron been unable to prove (see paragraph 20 above). However, having regard

to the importance of the principle that an individuals liability in defamationmust not extend beyond his or her own words, as well as the potential

chilling effects which breaches of that principle can have on freedom ofexpression (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 theapplicant 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


30/34


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 clearlyhad 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 ones own words. Their finding that duringthe 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 theMinister, was therefore not based on an acceptable assessment of therelevant facts. As a consequence thereof, the domestic courts mistakenly

qualified the applicants statement as a statement of fact, rather than as avalue judgment the veracity of which is not susceptible of proof. While it istrue 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).

71. 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

Documents

6. Case of Stojanovic v. Croatia