Utrinki s predavanja prof. Leacha

V torek, 15. maja 2018 ob 16h, je na ljubljanski lokaciji Evropske pravne fakultete potekala strokovna razprava o človekovih pravicah v krizi. Predaval je eden vodilnih evropskih strokovnjakov o Evropskem sodišču za človekove pravice in profesor na Univerzi Middlesex v Londonu, prof. dr. Philip Leach. Strokovno razpravo je organiziral in vodil izr. prof. dr. Letnar Černič.

Mladina v Slovenia – ECtHR protects harsh journalistic criticisms of politicians

The European Court of Human Rights has on 17 April 2014 delivered its judgment in the case of Mladina d.d. v Slovenia (20981/10) concerning the scope and nature of freedom of political expression. Slovenian left-wing weekly magazine, Mladina, published in 2005 an article describing a former nationalistic right-wing politician, former MP of Slovenian parliament, as “a cerebral bankrupt” referring to his opposition to legal recognition of same-sex partnerships. Slovenian ordinary courts held that published article breached the accepted forms of journalistic criticisms and thereafter awarded damages to former MP. Their decisions were later upheld also by the Slovenian Constitutional Court. The European Court, however, disagreed and found Slovenia in violation with article 10 ECHR. More specifically, it agreed that : 

… describing S.P.’s conduct as that of a “cerebral bankrupt” who, in a country with less limited human resources, would not even be able to find work as a primary school janitor, was indeed extreme and could legitimately be considered offensive. However, it is noted that the impugned remark was a value judgment, as acknowledged by the Government. It is true that in the absence of any factual basis even value judgments can be considered excessive. Nevertheless, in the present case the facts on which the impugned statement was based were outlined in considerable detail; with the exception of his concluding remark, S.P.’s parliamentary speech was quoted almost in its entirety, along with a mention of his accompanying imitation of a homosexual man. This description was followed by the author’s commentary which, in the Court’s opinion, was not only a value judgment, but also had the character of a metaphor. In the context of what appears to be an intense debate in which opinions were expressed with little restraint (see paragraphs 7 and 8 above), the Court would interpret the impugned statement as an expression of strong disagreement, even contempt for S.P.’s position, rather than a factual assessment of his intellectual abilities. Viewed in this light, the description of the parliamentarian’s speech and conduct can be regarded as a sufficient foundation for the author’s statement. (para. 43.)

Therefore it held that :

the domestic courts did not convincingly establish any pressing social need for placing the protection of S.P.’s reputation above the applicant company’s right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. The Court thus concludes that the reasons given by the domestic courts cannot be regarded as a sufficient justification for the interference with the applicant company’s right to freedom of expression. The domestic courts therefore failed to strike a fair balance between the competing interests. (para. 47).

The Court’s decision in present case is in the line with its case law. Freedom of expression clearly protects the right to harsh criticism of persons occupying public positions and participation in public debate. Politicians and other public figures may be subject to harsher criticism than individuals who do not occupy public positions, or do not participate in the public sphere, as it is a critique of the holders of public positions in the public interest (Castells v Spain, no. 11798/85, 23. 4. 1992, para. 46; Otegi Mondragon v Spain, no. 2034/07, para. 50). Anyone can participate in discussion of matters of public interest and may exaggerate or provoke but subject to respect for the reputation and rights of others. However, the right to freedom of expression does not protect publications of false statements and records.

Association of Victims of Romanian Judges and Others v. Romania

The European Court of Human Rights yesterday delivered judgment in case of Association of Victims of Romanian Judges and Others v Romania (no. 47732/06) and found that Romania violated Article 11 as it denied registration of this civil society association. It noted that :

»the reasons invoked by the authorities for refusing registration of the applicant association were not determined by any “pressing social need”, nor were they convincing and compelling. Moreover, such a radical measure as the refusal of registration, taken even before the association started operating, appears disproportionate to the aim pursued« (para. 34).