CASE OF BON v. CROATIA

FIRST SECTION

CASE OF BON v. CROATIA

(Application no. 26933/15)

JUDGMENT
 

STRASBOURG

18 March 2021

This judgment is final but it may be subject to editorial revision.

In the case of Bon v. Croatia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Alena Poláčková, President,
Péter Paczolay,
Gilberto Felici, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 26933/15) 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 and British national, Mr Ranko Bon (“the applicant”), on 30 May 2015;

the decision to give notice to the Croatian Government (“the Government”) of the complaints concerning the rights to a fair trial and to freedom of expression and to declare inadmissible the remainder of the application;

the decision of the Government of the United Kingdom not to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the parties’ observations;

Having deliberated in private on 16 February 2021,

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

INTRODUCTION

1.  The applicant, an environmental activist, was convicted and fined for insulting a local politician, stating in public that the latter had “acted like a real cockroach”. The case concerns the applicant’s complaints of the violation of his rights to a fair trial and to freedom of expression guaranteed respectively by Article 6 and Article 10 of the Convention.

THE FACTS

2.  The applicant was born in 1946 and lives in Motovun. He was represented by Mr V. Ramadanović, a lawyer practising in Zagreb.

3.  The Government were represented by their Agent, Ms Š. Stažnik.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The applicant, an environmental activist, was president of the Motovun branch of the Green Party.

6.  At a round table entitled “Together against seizure – How to proceed against the Golf Courses Act”, organised by the National Forum for the Environment and held at the Centre for Journalists in Zagreb on 26 March 2009, in front of an audience of approximately fifty people, the applicant gave a presentation in which he spoke about his return to Motovun after thirty-four years of living abroad. He asserted that there had been an excess of instruments of power in the town and a democratic deficit, and that everything was happening “in darkness”, behind closed doors, far from the eyes of the public. In that context, he also said that the then head of the Motovun Municipality, S.V., had been acting “like a real cockroach”.

7.  The applicant’s speech was recorded without his knowledge and published, without his consent, on the website of an environmental non‑governmental organisation (NGO).

8.  S.V. subsequently lodged three criminal complaints against the applicant with the Pazin Municipal Court (Općinski sud u Pazinu), accusing him of defamation and insult.

9.  On 2 March 2010 the applicant was found guilty of insulting S.V., in that he had referred to him as “a real cockroach”. The relevant part of that judgment reads as follows:

“This court is of the view that [the applicant] seeks, through his defence, to deny any criminal liability for the criminal offence [in issue] ... With regard to the statements made, he explains that, in relation to the Motovun Municipality, he said that everything was happening in darkness, behind closed doors and in that context [S.V.] was acting like a real cockroach.

In the opinion of this court, calling anyone a cockroach, and in particular [saying of S.V.], who was the head of the Motovun Municipality at the material time, that he was a cockroach, in any event constituted an insult to [S.V.] ...

[I]n the opinion of this court, the insult in question – and calling someone a cockroach is in any event insulting because it concerns an insect which is a pest and a parasite ...

This court considers that the fine [imposed] will influence [the applicant] in such a way that he will refrain from committing criminal acts in the future, and that he will respect the legal system of Croatia, but it will also persuade other citizens not to commit criminal offences, in other words to act in a socially acceptable manner as otherwise they will have to bear the consequences in the form of criminal sanctions. ...”

The court dismissed S.V.’s proposal to examine the recording of the applicant’s public appearance on the grounds that the relevant circumstances had already been fully established. The court fined the applicant in the amount of 26,666 Croatian kunas (HRK – approximately 3,500 euros (EUR)) and ordered him to bear the costs of proceedings in the amount of HRK 1,000 (approximately EUR 130). The applicant was acquitted on the other charges.

10.  The judgment at first instance was upheld on appeal by the Pula County Court (Županijski sud u Puli) on 24 May 2011. The relevant part of the judgment reads as follows:

“Contrary to the [applicant’s] claims, this first-instance court has established the facts correctly and in their entirety.

That is to say that the [applicant] ... is correct in claiming that the subject of the round table in Zagreb had a largely scientific aspect to it; however, [he] is not correct in claiming that on the occasion in question, he gave his presentation in a metaphorical tone: ... if one reviews and assesses how he said the offending words, which he aimed at [S.V.] ... then the first-instance court clearly found that it had been the [applicant’s] intention to insult [S.V.] ...

Contrary ... to the [applicant’s] ... claim, the first-instance court was, in the instant case, correct in not applying Article 203 of the Criminal Code. This is due to the fact that [S.V.] was called a ‘real cockroach’, that the conduct in question was aimed at harming a person’s honour or reputation.”

11.  The applicant challenged those findings before the Constitutional Court (Ustavni sud Republike Hrvatske), which on 11 December 2014 dismissed his complaints as ill-founded.

12.  The Constitutional Court’s decision was served on the applicant on 29 December 2014.

RELEVANT LEGAL FRAMEWORK

13.  The relevant domestic law has been cited in Miljević v. Croatia (no. 68317/13, §§ 31-32, 25 June 2020).

14.  The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) provides as follows:

Article 199

“2.  Anyone who insults another through the press, radio [or] television, in front of a number of people, before a public gathering, or in any other way in which the insult becomes accessible to a large number of people, shall be liable to punishment by a fine of up to 150 daily wages.”

15.  The relevant provision of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 8/11 with subsequent amendments) provides as follows:

Article 502 § 2

“2.  Criminal proceedings shall be reopened in a case where the request for revision is being filed on account of a final judgment of the European Court of Human Rights by which a violation of the rights and freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found, if the violation of the Convention found has affected the outcome of the proceedings and the breach found or its consequences may be rectified in reopened proceedings....

3.  A request for reopening of proceedings on account of a final judgment of the European Court of Human Rights may be lodged within a thirty-day time-limit starting from the date on which the judgment of the European Court of Human Rights becomes final.”

THE LAWALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

16.  The applicant complained that his criminal conviction had violated his right to freedom of expression guaranteed 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.”Admissibility

17.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsThe parties’ submissions

(a)   The applicant

18.  The applicant maintained that his criminal conviction had constituted a disproportionate interference with his right to freedom of expression. His statement had been a value judgment, meant as a strong criticism of S.V.’s actions and not as a portrayal of S.V. as an insect or a parasite, as had been determined by the domestic courts, which had failed to give sufficient and relevant reasons to justify the interference. The impugned statement had been made at a gathering in front of an audience with a predominantly scientific background, and the footage of his presentation had been published on an NGO’s website, which was not available to the general public.

19.  The applicant further argued that the domestic courts had omitted to examine the full context in which the impugned statement had been made, although the particular circumstances on which he had founded his value judgment had been clearly identified during the proceedings. Moreover, those circumstances had to a large extent been well known, since the particular issue of the construction of a golf course in Motovun had previously been reported on by the media. The applicant pointed out that he had acted in good faith and had been guided by the public interest. The fact that S.V. himself had not directly given the applicant any cause to criticise him had been irrelevant.

20.  Lastly, the applicant submitted that he had been handed a significant fine in criminal proceedings and ordered to pay damages. Moreover, after the conviction, he had left his post as president of a branch of Green Action and had withdrawn from all public activities. Ultimately, the organisation Green Action had disbanded itself.

(b)   The Government

21.  The Government acknowledged that the applicant’s conviction had amounted to an interference with his freedom of expression. However, that interference had been in accordance with the law, had pursued a legitimate aim and had been necessary in a democratic society.

22.  In other words, the applicant’s statement and the manner of his speech, set in the context of the presentation he had given at the event in question, could not be considered justified criticism, and had therefore tarnished the honour and reputation of S.V.

23.  As to proportionality, the Government conceded that the applicant, acting as an environmental activist at a public gathering in front of approximately forty people, had undisputedly given a statement that was insulting in character, implying that S.V. was a pest and a parasite. As a member of an environmental NGO, he had nevertheless been bound by the Code of Ethics and Conduct of NGOs, according to which an NGO must not violate fundamental human rights and any information which it decided to disseminate had to be correct and presented within an appropriate context.

24.  While the impugned statement was a value judgment, the applicant had to prove that such a statement had at least had a specific factual basis, which he had failed to do. In other words, the Government asserted that the domestic courts, having examined the context in which the statement had been given, had concluded that the only reason for which the applicant believed that he had had the right to call S.V. a “cockroach” was his personal impression of a lack of transparency in the conduct of the local government (that is to say, his impression that “everything was happening in darkness, behind closed doors”). The Government concluded that, given the content of the impugned statement and its overall context, the applicant’s real intention had been to insult S.V., rather than to express himself metaphorically. In addition, S.V. had not done anything directly to the applicant to deserve being insulted publicly, nor had he previously made any public statements which might have justified such a public insult. Finally, the Government deemed the sanction imposed on the applicant proportionate.The Court’s assessment

(a)   Whether there was an interference

25.  The Government conceded that the applicant’s conviction for insult on account of his statements in his presentation at the round table had constituted an interference with his right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. The Court sees no reason to hold otherwise.

(b)   Lawfulness and legitimate aim

26.  The Court notes that the domestic courts based the applicant’s conviction on the offence of insult as provided for in Article 199 § 2 of the Criminal Code (see paragraph 14 above). That being so, the Court accepts that the interference in the present case was prescribed by law.

27.  Furthermore, it was common ground that the interference with the applicant’s right had pursued the legitimate aim of the protection of the rights of others, namely the honour and reputation of S.V., the head of the Motovun Municipality.

28.  What remains to be established is whether that interference was “necessary in a democratic society”.

(c)   “Necessary in a democratic society”

29.  The Court notes that the present case concerns a conflict between concurrent rights, namely S.V.’s right to reputation – part of his private life – on the one hand, and the applicant’s right to freedom of expression on the other. The general principles arising from the Court’s case-law as regards the requirement of necessity in a democratic society in those types of cases have been summarised in a number of previous cases (see, among many other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78‑97, 7 February 2012, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 82-93, ECHR 2015).

30.  The Court’s task in the present case is to examine whether, during their assessment, the domestic courts applied the criteria established in its case-law on the subject, and whether the reasons that led them to take the impugned decisions were sufficient and relevant to justify the interference with the right to freedom of expression (see Cicad v. Switzerland, no. 17676/09, § 52, 7 June 2016). It will do so by examining the criteria established in its case-law (see Couderc and Hachette Filipacchi Associés, cited above, § 93) which are of relevance to the present case.

(i)      Contribution to a debate of public interest

31.  Pursuant to the Court’s long-standing practice, there is little scope under Article 10 § 2 of the Convention for restricting debate on questions of public interest (see, among many other authorities, Narodni List D.D. v. Croatia, no. 2782/12, § 60, 8 November 2018). In this connection, the Court observes that the applicant, as an environmental activist and the president of a local branch of a political party, had given a presentation at a public gathering of a scientific nature, at which, among other things, the manner of conducting local environmental politics had been discussed (see paragraphs 6 and 17 above).

32.  The Court therefore considers that the discussion in the present case was clearly one of public interest and the subject of social debate.

(ii)     How well known the person concerned is

33.  In the present case, S.V., as head of the Motovun Municipality, was a public figure and therefore he should have had a higher threshold of tolerance towards any criticism directed at him while conducting local politics (see Paraskevopoulos v. Greece, no. 64184/11, § 37, 28 June 2018).

(iii)   Content, form and consequences of the publication

34.  The Court has repeated time and again the distinction that needs to be made between statements of fact and value judgments (see, among many other authorities, Morice v. France [GC], no. 29369/10, § 126, ECHR 2015) as well as the point that Article 10 protects not only “information” or “ideas” that are favourably received or regarded as inoffensive, but also those that offend, shock or disturb (see, among many other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).

35.  In the present case the applicant, as an environmental activist, took part in a public gathering of a scientific nature of between forty and fifty people. Therefore the impugned statement had been made only to a limited number of people with a particular interest. It does not appear from the facts, as submitted by the parties, that the applicant had intended to make his presentation available to the general public. However, without his knowledge or consent, the applicant’s presentation had been privately recorded and posted on the website of a local NGO and had thus had only a limited impact.

36.  The Court further observes that the domestic courts limited their analysis to the fact that the applicant had called S.V. “a real cockroach”, which in itself had represented an insult, given the fact that a cockroach was an insect which was a pest and a parasite (see paragraph 9 above). In adopting such a narrow definition of what could be considered acceptable criticism, the domestic courts did not embark on an analysis of whether the applicant’s statement could have been a value judgment not susceptible of proof (see Grinberg v. Russia, no. 23472/03, §§ 28-30, 21 July 2005).

37.  While it is true that the expression in question might have been upsetting for S.V., in the Court’s view the applicant had chosen to convey his strong criticism, coloured by his own political opinions and perceptions, which cannot be understood to be a gratuitous personal attack on S.V. (compare Bodrožić v. Serbia, no. 32550/05, § 56, 23 June 2009). However, the domestic courts failed to carry out an adequate analysis to assess the context in which the impugned expression had been used, summarily dismissing the applicant’s contention that the impugned part of his speech had been purely metaphorical (see paragraphs 9 and 10 above).

(iv)   Severity of the sanction

38.  With regard to the nature and severity of the sanction imposed, the Court notes that the applicant was convicted in criminal proceedings and consequently received an entry in his criminal record (see Długołęcki v. Poland, no. 23806/03, §§ 44-45, 24 February 2009). Furthermore, the Court observes that the fine imposed on the applicant – approximately EUR 3,500 – was, in the circumstances, substantial. Lastly, the sanction imposed had negative repercussions on the applicant’s further engagement as an environmental activist since thereafter he retreated from his local political engagement and from all public activities, whereas S.V. was re‑elected at the subsequent local elections.

(v)    Conclusion

39.  In the light of the above-mentioned considerations, the Court considers that the domestic courts did not put forward relevant and sufficient reasons for the interference with the applicant’s freedom of expression or give due consideration to the principles and criteria laid down in the Court’s case-law for balancing that freedom with another individual’s right to respect for his or her private life. In particular, they failed to carry out an adequate proportionality analysis with a view to assessing the overall context and tone in which the impugned expression had been used. They thus exceeded the margin of appreciation afforded to them and failed to strike a reasonable balance of proportionality between the measures restricting the applicant’s right to freedom of expression and the legitimate aim pursued.

40.  There has accordingly been a violation of Article 10 of the Convention.ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

41.  The applicant complained that the criminal proceedings against him had been unfair and in breach of Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

42.  The applicant argued that the domestic courts did not adduce sufficient reasons to justify their decisions. He also maintained that the trial court had refused to examine the audio-recording of his presentation without providing any reasons in that regard.

43.  The Government disagreed. They pointed out that the applicant had had a fair trial in which he had made use of all his procedural rights. In particular, he had been questioned in the criminal proceedings and had thus been given the opportunity to offer his observations on the context in which the impugned statements had been made.

44.  The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.

45.  Having regard to the finding relating to Article 10 of the Convention, the Court considers that it is not necessary to examine whether there has been a violation of Article 6 in this case (see, among other authorities, Standard Verlags GmbH and Krawagna-Pfeifer v. Austria, no. 19710/02, § 65, 2 November 2006, and Kwiecień v. Poland, no. 51744/99, § 62, 9 January 2007).APPLICATION OF ARTICLE 41 OF THE CONVENTION

46.  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.”Damage

47.  The applicant claimed HRK 26,666 Croatian kunas (HRK) (approximately 3,500 euros (EUR)) in respect of pecuniary damage and HRK 75,200 (approximately EUR 10,000) in respect of non-pecuniary damage.

48.  The Government contested those claims. They stressed that, should the Court find a violation of the applicant’s rights in the present case, the reopening of the domestic proceedings, which was allowed under domestic law, would be the most appropriate way to compensate the applicant for the violation found, and he could make his claim in respect of pecuniary damage as he deemed fit.

49.  As regards the applicant’s claim in respect of pecuniary damage, the Court notes that under Article 502 § 2 of the Code of Criminal Procedure (see paragraph 15 above), an applicant may seek the reopening of criminal proceedings in respect of which the Court has found a violation of the Convention. Given that, in the instant case, it has found a violation of the applicant’s right guaranteed under Article 10 of the Convention (see paragraph 40 above), the Court agrees with the Government that, in the present case, the most appropriate way to repair the consequences of that violation would be to reopen the proceedings complained of (compare Stojanović v. Croatia, no. 23160/09, § 80, 19 September 2013). As the domestic law allows for the making of such reparation, the Court considers that there is no call to award the applicant any sum in respect of pecuniary damage.

50.  On the other hand, having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

51.  The applicant also claimed HRK 7,817.90 (approximately EUR 1,050) for the costs and expenses incurred before the domestic courts and HRK 16,500 (approximately EUR 2,200) for those incurred before the Court.

52.  The Government contested those claims.

53.  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 were actually and necessarily incurred and are 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 3,250 covering costs under all heads, plus any tax that may be chargeable to the applicant.Default interest

54.  The Court considers it appropriate that the default interest rate 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,Declares the application admissible;Holds that there has been a violation of Article 10 of the Convention;Holds that it is not necessary to examine the complaint under Article 6 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

(i)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,250 (three thousand two hundred and fifty 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Attila TeplánAlena Poláčková
Acting               Deputy RegistrarPresident

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