Published on 20 March 2023
FIRST SECTION
Application no. 5257/22
Mitja KUNSTELJ
against Slovenia
lodged on 19 January 2022
communicated on 1 March 2023
SUBJECT MATTER OF THE CASE
The application concerns criminal proceedings against the applicant where he was convicted of two counts of defamation and one count of slander following a private prosecution by two victims. The applicant was found to have published several internet blogs, insulting the victims, who were both journalists, familiar to the public.
In his blogs the applicant had called the victims, inter alia, “a rat”, “a pervert”, “a drunkard”, “a fraud”, “a zoophile”, “a whore”. Furthermore, he had alleged that one of the victims had forced him into a sexual encounter and that the victim was also abusing dogs, even though he knew these allegations were not true. On 13 May 2013 the first-instance court sentenced the applicant to a joint prison sentence of six months.
The applicant’s appeals to the second-instance court and the Supreme Court were unsuccessful.
The applicant then filed a constitutional complaint with the Constitutional Court, which accepted it for consideration. On 17 June 2021 the Constitutional Court dismissed the complaint, citing the case-law of the Court under Articles 10 and 17 of the Convention. The Constitutional Court held that a prison sentence could be in exceptional cases compatible with the Constitution. It further found that the domestic courts had given relevant and sufficient reasons for the sentence and that they had thoroughly explained why they would not apply a conditional sentence and/or a fine.
The applicant complains under Article 10 of the Convention about the decisions of the Supreme Court and the Constitutional Court that his conviction did not violate his right to freedom of expression. He challenges in particular the Supreme Court’s position that his speech was not protected by the Convention and thus his criminal conviction and the imposed sanction did not amount to an interference with his freedom of expression. The applicant also complains that the prison sentence of six months was not necessary or proportional.
QUESTION TO THE PARTIES
1. Has there been an interference with the applicant’s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention?
2. If so, was the interference on account of his criminal conviction and prison sentence justified under Article 10 § 2 of the Convention?
In particular was it proportionate to the legitimate aim(s) pursued? Did the domestic courts provide “relevant and sufficient” reasons to justify the sanction imposed (see, for instance, Skałka v. Poland, no. 43425/98, §§ 35‑42, 27 May 2003; Kanellopoulou v. Greece, no. 28504/05, §§ 34-40, 11 October 2007; Ruokanen and Others v. Finland, no. 45130/06, §§ 35-52, 6 April 2010; Savva Terentyev v. Russia, no. 10692/09, §§ 61-86, 28 August 2018; Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 168, 8 November 2016; and Stomakhin v. Russia, no. 52273/07, §§ 125-32, 9 May 2018)?