FIRST SECTION
DECISION
Application no. 57942/10
Vladimir RUJAK
against Croatia
The European Court of Human Rights (First Section), sitting on 2 October 2012 as a Chamber composed of:
Anatoly Kovler, President,
Nina Vajić,
Peer Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 21 September 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vladimir Rujak, is a Croatian citizen of Serbian ethnic origin, who was born in 1981 and lives in Marinići. He is represented before the Court by Mr T. Sabljar, a lawyer practising in Rijeka.
2. The Croatian Government (“the Government”) are represented by their Agent, Ms Š. Stažnik.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 8 April 2004 the applicant, who was serving in the Croatian Army at the time, was involved in a quarrel in the Knez Trpimir military barracks in Divulje with two other recruits, Mr I.H. and Mr I.Š. The quarrel was witnessed by a number of other soldiers. At some point during the quarrel the applicant said to I.H. and I.Š.:
“I fuck your baptised mother!”
5. It would appear that shortly afterwards corporal D.B. summoned the applicant through a duty officer to report to him concerning the incident. As the applicant refused to do so, corporal D.B. went to look for him and, after having found him, asked why he had not reported to him as instructed. The applicant replied:
“This is not my State, I am not its national, I don’t recognise [respect] you, your rank or the Croatian Army!”
6. The applicant repeated this statement in the presence of other officers during a subsequent conversation with the battalion commander, first lieutenant B.V. Asked whether he intended to offend someone’s religion and ethnic origin he replied:
“Yes! I fuck your baptised mother! I fuck your Ustaše mother! You all originated from Serbs!”
7. On 6 April 2005 the Split County State Attorney’s Office (Županijsko državno odvjetništvo u Splitu) indicted the applicant before the Split County Court (Županijski sud u Splitu), accusing him of the criminal offence of tarnishing the reputation of the Republic of Croatia, defined in Article 151 of the Criminal Code.
8. At a hearing held on 28 February 2007 the applicant admitted making the above statements, expressed remorse and stated that he considered himself a national of the Republic of Croatia, that he recognised it as his State, and therefore that he also recognised its Army.
9. On the same date, the County Court delivered a judgment whereby it found the applicant guilty as charged and sentenced him to six months’ imprisonment. The relevant part of that judgment reads as follows:
“The [value] protected by [proscribing] this criminal offence is the reputation of the Republic of Croatia [and] its dignity, symbolised in the objects [listed in the definition of the offence]. The acts described [therein], that is, exposure to ridicule, contempt and severe disdain, indicate that the law [the Criminal Code] requires grave denigration, malice, hatred and demonstrative disrespect for those values and symbols, such that they would lose their dignity in the eyes of citizens and the world.
...
The [court] finds it proven ... that the accused committed the criminal offence defined in Article 151 of the Criminal Code because he publicly exposed the Republic of Croatia and the Croatian people to contempt and severe disdain by saying publicly, ..., in the presence of a large number of people that ... this State (the Republic of Croatia) was not his State, that he did not recognise it, that he was not its national, that he did not recognise the Croatian Army – which is, parenthetically, the foundation of the constitutional integrity and territorial existence of any legally organised state such as the Republic of Croatia – that he did not recognise the legitimacy of his superior officer in the Croatian Army ... and his rank, which [statements] were accompanied by [further statements] which offend religious and national affiliation, such as those in which he said that he fucks their baptised mothers, Ustaše mothers and that they all (Croats, Croatian people) originated from Serbs. Those [statements] indicate severe denigration, malice, hatred and demonstrative disrespect for the values and symbols [listed in the definition of the offence], whereby those values and symbols of the Republic of Croatia, by being treated in such a way in front of citizens (members of the Croatian Army), lost their dignity.
[When deciding on a penalty, the court takes into account] the fact that the accused admitted committing the offence, the fact that he [does not have a criminal record], his young age and correct conduct before the court, whereas, as an aggravating circumstance, it takes into account the manner in which the offence was committed, that is, a high level of perseverance and contempt in making the offending statements.
Taking into account all the above circumstances ... [the court] sentences the accused to six months’ imprisonment, considering that the purpose of the punishment may, given the type and gravity of the criminal offence, be achieved only by a prison sentence. This prison sentence will, in the opinion of [this court], primarily achieve the purpose of individual prevention, so that the accused will not commit this or a similar offence [in the future]. [It will also meet] the purpose of general prevention by deterring others from committing this or similar offences.”
10. The applicant appealed. He argued that his statements could have been qualified as the criminal offence of insult against recruits I.H. and I.Š. and/or a disciplinary offence of disobedience to his superior officers, rather than the criminal offence of tarnishing the reputation of the Republic of Croatia. Furthermore, his conviction for that criminal offence interfered with his freedom of expression because he had been entitled to express his opinion that Croats had originated from Serbs who had converted to Catholicism.
11. On 11 November 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the first-instance judgment in part and reversed it in part. It upheld the lower court’s finding that the applicant was guilty of the offence in question. However, it overturned the sentence imposed and replaced it with a suspended sentence of six months’ imprisonment with a two-year probation period. The relevant part of the judgment reads as follows:
“The argument of the accused that ... the operative part of the contested judgment is incomprehensible and self-contradictory because the facts [of the case] do not correspond to the legal definition of the criminal offence [for which he has been convicted] is unfounded. In explaining this argument, the accused ... claims that cursing I.H. and I.Š.’s baptised mothers constitutes the criminal offence of insult defined in Article 199 of the Criminal Code, that by stating that he did not recognise the Croatian State, the Croatian Army and its officers [he had only] exposed himself to ridicule and contempt and not the Republic of Croatia, its Army or its officers, and that by saying that all Croats had originated from Serbs he [was merely expressing] one possible theory on the ethnogenesis of Croats, which [he] has the right to [do] on the basis of the Croatian Constitution, which, in [its] Article 38, guarantees the freedom of thought and freedom of expression.
Contrary to the foregoing, nothing in the appeal of the accused suggests that the operative part of the contested judgment is incomprehensible or contradictory, as the appellant argues ...
...
The first-instance court ... did not give sufficient weight to mitigating circumstances, that is, to the fact that the accused [does not have a criminal record], to his young age and correct conduct before the court, which was also demonstrated by his admission that he committed the ... offence and ... clearly expressed remorse for doing so, which suggests that the criminal offence perpetrated by the accused is a result of the impudence of youngsters. The Supreme Court ... therefore considers that in this particular case the purpose of the punishment may be achieved without imposing a prison sentence. For these reasons, the appeal of the accused has to be allowed in part [as regards] the penalty [imposed] and the first-instance judgment [must accordingly be] reversed ...”
12. The applicant subsequently lodged a constitutional complaint alleging, inter alia, a violation of his freedom of expression, guaranteed by Article 38 of the Croatian Constitution.
13. On 9 April 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s complaint inadmissible. It found that even though the applicant relied on the relevant Articles of the Constitution in his constitutional complaint, he had not substantiated his complaint by any constitutional-law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint. The Constitutional Court’s decision was served on the applicant’s representative on 11 May 2010.
B. Relevant domestic law
1. The Constitution
14. The relevant parts 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)) provide as follows:
Article 16
“(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health.
(2) Every restriction of rights and freedoms should be proportionate to the nature of the necessity for the restriction in each individual case.”
Article 38
“(1) Freedom of thought and expression shall be guaranteed.
(2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and public expression, and free establishment of all media institutions.
(3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information.
(4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or a statute were breached by public information.”
2. The Criminal Code
15. Article 151 of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) reads as follows:
Tarnishing the reputation of the Republic of Croatia
Article 151
“Anyone who publicly exposes the Republic of Croatia, its flag, coat of arms or [national] anthem, the Croatian people, or ... national ... minorities living in the Republic of Croatia to ridicule, contempt or severe disdain, shall be punished by imprisonment from three months to three years.”
COMPLAINTS
16. The applicant complained under Article 10 of the Convention that his right to freedom of expression had been violated.
17. He also complained under Article 6 § 1 of the Convention that he had had no access to court because the Constitutional Court had not examined the merits of his complaint.
THE LAW
A. Alleged violations of Article 10 of the Convention
18. The applicant complained that, by convicting him in the above‑mentioned criminal proceedings of the criminal offence under Article 151 of the Criminal Code - tarnishing the reputation of the Republic of Croatia on account of his statements made on 8 April 2004, the domestic courts had violated his right to freedom of expression. He relied on 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.”
19. The Government contested these arguments.
1. The parties’ submissions
20. The Government maintained that the applicant had not exhausted domestic remedies because in his defence before the trial court he had not argued that the statements at issue concerned his freedom of expression. To the contrary, he had pleaded guilty and agreed that he had tarnished the reputation of the Republic of Croatia. He had invoked his right to freedom of expression for the first time in his appeal against the first-instance judgment. At a hearing held before the Supreme Court he only asked for a lenient punishment.
21. Furthermore, once he had pleaded guilty, he had no longer been allowed to challenging the first-instance judgment on account of wrongly established facts. Therefore, the Supreme Court had had no possibility to assess the circumstances concerning the applicant’s right to freedom of expression. Likewise, in his constitutional complaint the applicant had not put forward any arguments relevant for his freedom of expression.
22. They contended further that the application was manifestly ill‑founded because the applicant had pleaded guilty.
23. The applicant replied that he had not been legally represented in the proceedings before the trial court and could not have fully understood the meaning of pleading guilty. He further pointed out that he had relied on his right to freedom of expression both in his appeal against the first-instance judgment and in his constitutional complaint.
2. The Court’s assessment
24. The Court does not have to address all issues raised by the parties because the application is in any event inadmissible on the following ground.
25. Freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self‑fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb; such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see, among many other authorities, Oberschlick v. Austria (no. 1), 23 May 1991, Series A no. 204, § 57, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
26. The Court has also repeatedly upheld the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999‑III).
27. However, the above principles do not exclude a possibility that certain categories of expression may not be covered by the protection of Article 10 of the Convention. The Court has to ask whether, in light of the reasons for the protection of freedom of expression, the type of communication in issue is covered by the guarantee. While assertions of fact and statements of value or feeling are covered because, for instance, they express an individual’s beliefs or identity, or contribute to the formation of public opinion, it is open to question whether there is a good reason for protecting expression of insults.
28. In this connection the Court reiterates that the concept of “expression” in Article 10 concerns mainly the expression of opinion and receiving and imparting information and ideas (see X v. the United Kingdom, no. 7215/75, Commission’s report of 12 October 1978, Decisions and Reports 19, p. 80), including critical remarks and observations (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003).
29. Certain classes of speech, such as lewd and obscene speech have no essential role in the expression of ideas. An offensive statement may fall outside the protection of freedom of expression where the sole intent of the offensive statement is to insult. The Court also established that the freedom of expression guaranteed under Article 10 of the Convention may not be invoked in a sense contrary to Article 17 of the Convention (see Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004‑XI and the cases cited therein).
30. The Court does not consider it necessary in the present case to establish whether the applicant’s statements amounted to an attack on a religious and ethnic group and were contrary to Article 17 of the Convention (see Norwood, cited above). In view of the fact that the applicant’s statement mostly concerned vulgar and offensive language, the Court is not persuaded that, by making the offending statements, the applicant was trying to “impart information or ideas”. Rather, from the context in which those statements were made, it appears that the applicant’s only intention was to insult his fellow soldiers and his superiors. The Court considers that such “expression” falls outside the protection of Article 10 of the Convention because it amounted to wanton denigration and its sole intent was to insult.
31. Against the above background, the Court finds that Article 10 is not applicable to the expressions the applicant was punished for by the national courts.
32. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
33. The applicant also complained under Article 6 § 1 of the Convention that the refusal of the Constitutional Court to examine the merits of his case amounted to a violation of his right of access to court.
34. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3(a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenAnatoly Kovler
RegistrarPresident
Full & Egal Universal Law Academy