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SECOND
SECTION
CASE OF KARSAI v. HUNGARY
(Application
no. 5380/07)
JUDGMENT
STRASBOURG
1
December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Karsai v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
Kristina
Pardalos,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 10 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5380/07) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr László
Karsai (“the applicant”), on 27 December 2006.
- The
applicant was represented by Mr A. Kádár, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
- The
applicant alleged that the Hungarian court decisions obliging him to
pay compensation for statements made in an article had amounted to an
infringement of his freedom of expression guaranteed by Article 10 of
the Convention.
- On
25 June 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Budapest.
- The
applicant is a historian and university professor. His main subject
of research is the Second World War and, in particular, the
extermination of Jews and Romas. He is the author of numerous
publications in this field.
- In
2004 a heated public debate took place in Hungary as to whether a
statue should be raised to commemorate Pál Teleki.
In a wider context, the debate also concerned the question of
Hungary's failure to face up its role in World War II and the
Holocaust, as well as the attitude of Hungarians to this chapter of
the country's twentieth-century
history – issues which had political implications, given that
certain right-wing parties in the country identified their roots in
the pre-World-War-II political system, of which Pál Teleki was
an emblematic figure.
- In
this discussion, the applicant had publicly stated that Teleki had
been one of the most reprehensible figures of Hungarian history,
since he had been responsible for substantial anti-Semitic
legislation as well as for dragging Hungary into World War II.
- In
no. 11/2004 of the weekly paper Élet és
Irodalom, the applicant published an article on this subject,
criticising the right-wing media, including a certain Mr B.T., for
embellishing Teleki's role and for having made anti-Semitic
statements in this context. The article presented examples of, and
refuted, various misconceptions about Teleki's political acts,
endorsed by right-wing authors in order to diminish his
responsibility for the persecution of Hungarian Jews, which, in the
applicant's view, amounted to 'careful Jew-bashing'. One of these
examples reads as follows:
“In B.T.'s charming words, two anti-Semitic laws
'fell' within Teleki's two premierships. ... If we are counting, let
us be accurate: not two, but 12 (twelve) anti-Semitic laws are linked
to Teleki's name. ...”
The
applicant also noted that:
“... [I]t is rare that those supporting [the
project of] Teleki's statue are trying to defend their position using
overtly anti-Semitic arguments.”
- Mr
B.T. brought an action against the applicant before the Budapest
Regional Court. He claimed that his reputation had been harmed by a
further passage contained in the applicant's article which reads as
follows:
“In the Parliamentary Library's PRESSDOC database,
there are hundreds of articles and studies praising Pál
Teleki, written in a sometimes uninhibited, sometimes more moderate
style. In 1994-95, the extremely anti-Semitic and irredentist Hunnia
Brochures devoted a 15-episode series to the ex-PM. The amateur
historian [B.T.] wrote several articles
trumpeting the praise of Pál Teleki – of the devout
Catholic, the enthusiastic Scouts officer – who in his view was
an anti-Nazi 'Realpolitiker'.
These articles and studies remained largely without
reaction. We are only a few who take in our hands, at least from time
to time, the products of the right-wing or extreme right-wing press,
which, perhaps encouraged by this [indifference], keep lying, keep
slandering, keep inciting against and bashing the Jews (zsidóznak),
in a more and more uninhibited way.”
- According
to the plaintiff, the last sentence of the quotation could be aimed
at him and was prejudicial to his reputation.
- On
1 June 2005 the Regional Court dismissed the action, holding in
essence that the impugned sentence, especially the expression
'bashing the Jews' did not concern the plaintiff himself but the
right-wing and extreme right-wing media as such.
- On
appeal, on 17 January 2006 the Budapest Court of Appeal reversed this
decision and found for the plaintiff. Relying on sections 75, 78 and
84 of the Civil Code, it ordered the applicant to arrange for the
publication of a rectification at his expense and to pay the legal
costs which amounted to 69,000 Hungarian forints (HUF).
Assessing the applicant's statements in the context of the whole
article, the Court of Appeal held that the impugned expression could
be seen as relating to the plaintiff personally and that the
applicant had failed to prove that it was true. In the court's
opinion, to accuse, even contextually, the plaintiff of having
'bashed the Jews' was a statement of fact putting Mr B.T. in a false
light and was thus capable of prejudicing his reputation.
- On
28 June 2006 the Supreme Court upheld this decision, imposing another
HUF 46,000
in legal fees. It reaffirmed that “the impugned statement –
which was made, in general terms, with regard to the right-wing
(extreme right-wing) press – could also be considered to
concern the plaintiff”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the Hungarian court decisions amounted to a
violation of his right to freedom of expression as provided in
Article 10 of the Convention, which reads insofar as relevant 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. ...
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 ... for the
protection of the reputation or rights of others, ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Whether there has been an interference
- The
Court notes that it has not been disputed by the Government that
there had been an interference with the applicant's right to freedom
of expression. It reiterates that that an interference with the
applicant's rights under Article 10 § 1 will infringe the
Convention if it does not meet the requirements of paragraph 2 of
Article 10. It should therefore be determined whether it was
“prescribed by law”, whether it pursued one or more of
the legitimate aims set out in that paragraph and whether it was
“necessary in a democratic society” in order to achieve
those aims.
2. “Prescribed by law”
- The
Court observes that the measure complained of was based on sections
75, 78 and 84 of the Civil Code. It is therefore satisfied that it
was “prescribed by law”. Moreover, this has not been
disputed by the parties.
3. Legitimate aim
- The
applicant argued that – contrary to the findings of the second
and third instance courts – the impugned statement could not be
understood to have referred to the plaintiff and that, therefore, the
interference did not pursue any legitimate aim. The Government did
not address this point.
- The
Court considers that it is generally for the national courts to
determine the facts bearing on the litigation, and finds no reason to
depart from the Court of Appeal's and the Supreme Court's conclusion
that the impugned statement was capable of affecting the plaintiff's
reputation. Consequently, it is satisfied that the interference
pursued a legitimate aim, namely the protection of the reputation or
rights of others.
4. Necessary in a democratic society
- It
remains to be determined whether the interference was “necessary
in a democratic society”.
a. The applicant's arguments
- The
applicant argued in essence that his statements were value judgments,
not susceptible to proof, with sufficient factual basis. They were
made in the press, in the course of a public debate on an issue of
significant public interest, which had not been appropriately
discussed before. In his view, freedom of debate on issues of
significant public interest is – as with political debate –
at the very core of the concept of a democratic society. The
plaintiff was actively involved in a debate of public concern with
strong political implications and he had laid himself open to
scrutiny when entering that arena. In recent years, right-wing
extremism had become stronger in Hungary, free debate over such
questions had gained crucial importance, and in such discussions,
strong criticism and harsher language should be accepted. In sum, it
could not be argued that the measure was necessary in a democratic
society; all the more so, since – although only civil-law
sanctions had been ordered – an obligation to arrange for a
public rectification was a disproportionately severe sanction for
him, his credibility as a historian having been at stake.
b. The Government's arguments
- The
Government relied in substance on the Contracting States' margin of
appreciation in the matter. They argued that the applicant's
statement had exceeded the limits of freedom of expression as
guaranteed by Article 10 of the Convention. They endorsed the
domestic courts' arguments that the impugned statements had injured
the plaintiff's reputation, and deliberately so. The Hungarian courts
carried out appropriate balancing between the applicant's Convention
rights and the plaintiff's right to good reputation, and justifiably
concluded that the latter had outweighed the former in the particular
circumstances of the case. They stressed that the sanctioning of
statements capable of damaging good reputation should not be regarded
as a breach of the Convention. Lastly, in the Government's view, the
sanction imposed was not disproportionate, especially since it was of
a civil, rather than criminal, character.
c. The Court's assessment
i. General principles
- The
test of “necessity in a democratic society” requires the
Court to determine whether 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 an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, among many other authorities, Perna
v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V; Association
Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).
- The
Court's task in exercising its supervisory function is not to take
the place of the competent domestic courts but rather to review under
Article 10 the decisions they have taken pursuant to their margin of
appreciation (see Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-I). This does not mean that the
supervision is limited to ascertaining whether the respondent State
exercised its discretion reasonably, carefully or in good faith; the
Court looks at the interference complained of in the light of the
case as a whole, including the content of the statement held against
the applicant and its context (see News Verlags GmbH & CoKG v.
Austria, no. 31457/96, § 52, ECHR 2000-I).
- 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” (see
Chauvy and Others v. France, no. 64915/01, § 70, ECHR
2004-VI). 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 (see, among many other
authorities, Zana v. Turkey, judgment of 25 November 1997,
Reports of Judgments and Decisions 1997-VII, pp. 2547-48, §
51).
- The
Court furthermore stresses the essential role which the press plays
in a democratic society. Although it must not overstep certain
bounds, in particular in respect of the reputation and rights of
others, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see, among
many other authorities, Scharsach and News Verlagsgesellschaft v.
Austria, no. 39394/98, § 30, ECHR 2003 XI).
Journalistic freedom also covers possible recourse to a degree of
exaggeration, or even provocation (loc. cit.).
ii. Application of the above principles to
the present case
- The
Court notes that the applicant participated in a public debate about
the erection of a statue commemorating Pál Teleki, former
Prime Minister of Hungary. In his view, revisionism of the role of
Teleki and a public apology for his acts, as advocated by Mr B.T.,
was part of 'Jew-bashing'. In the ensuing proceedings, the domestic
courts had to decide whether the statements made by the applicant
actually concerned the plaintiff B.T., and whether they were factual
and defamatory. Assessing the statements in the context of the whole
article written by the applicant, the Court of Appeal held that the
impugned expression could be seen as relating to the plaintiff
personally, whereas the Supreme Court reaffirmed that “the
impugned statement – which was made, in general terms, with
regard to the right-wing (extreme right-wing) press – could
also be considered to concern the plaintiff”. The Court
consequently considers that the reference to the plaintiff's person
was present but indirect (see also paragraph 21 above).
- The
Court has next to establish to what extent the restriction on the
applicant's freedom expression for the sake of indirectly protecting
the reputation of Mr B.T. satisfied the requirements of necessity and
proportionality. To that end, the Court will consider the nature of
the statement, the resulting damage, the character of the debate, and
the respective positions of the applicant and the plaintiff in that
debate.
- The
Court notes that the Hungarian courts eventually qualified the
applicant's statement as one of fact, which put Mr B.T. in a false
light. The classification of a statement as a fact or as a value
judgment is a matter which in the first place falls within the margin
of appreciation of the national authorities, in particular the
domestic courts (Pedersen and Baadsgaard v. Denmark [GC], no.
49017/99, § 76, ECHR 2004 XI). However, that classification
should not preclude the protection of freedom of expression by being
unreasonable or arbitrary.
- The
Court reiterates that, while the existence of facts can be
demonstrated, the truth of value judgments is not susceptible of
proof. Where a statement amounts to a value judgment, the
proportionality of an interference may depend on whether there exists
a sufficient factual basis for the impugned statement, since even a
value judgment without any factual basis to support it may be
excessive (see, for instance, Jerusalem v. Austria, no.
26958/95, § 43, ECHR 2001 II; De Haes and Gijsels v.
Belgium, 24 February 1997, Reports of Judgments and Decisions
1997-I, § 47; Oberschlick v. Austria (no. 2), 1 July
1997, Reports 1997 IV, § 33). As the Court has
noted in previous cases, the difference lies in the degree of factual
proof which has to be established (see Scharsach and News
Verlagsgesellschaft, cited above, § 40).
- The
Court notes that the applicant's argument contained a factual
statement describing Mr B.T. as someone active in embellishing Pál
Teleki's historical role. It appears from the circumstances of the
case that this activity was not in dispute before the domestic
courts. However, the Court considers that this statement of fact was
a value-laden one. By indirectly referring to Mr B.T.'s published
views, the applicant argued that the apology of a politician with
well-known anti-Semitic convictions amounted to objective
participation in the process, ongoing in the extreme-right wing
press, of the trivialisation of his racist policies – a
phenomenon labelled 'Jew-bashing'.
- Consequently,
the Court cannot fully endorse the domestic courts' findings that the
dispute concerned a pure statement of fact; such a conclusion would
restrict the protection due under Article 10 of the Convention. The
Court is satisfied that the conclusions advanced by the applicant
cannot be considered excessive or devoid of factual basis, given Mr
B.T.'s apologetic treatment of Pál Teleki – which was
referred to by the applicant in his article and not denied by Mr B.T.
before the courts – and in view of the role which Pál
Teleki played in the enactment of anti-Semitic legislation in
Hungary.
- The
Court furthermore notes that the applicant – a historian who
had published extensively on the Holocaust – wrote the impugned
article in the course of a debate concerning the intentions of a
country, with episodes of totalitarianism in its history, to come to
terms with its past. The debate was thus of utmost public interest
(cf. Feldek v. Slovakia, no. 29032/95, ECHR 2001 VIII;
Azevedo v. Portugal, no. 20620/04, §§ 26 to 34, 27
March 2008; Riolo v. Italy, no. 42211/07, §§ 63 to
73, 17 July 2008).
It
therefore considers that this publication deserves the high level of
protection granted to the press in view of its functions. In this
connection the Court refers to the summary of its established
case-law on press freedom in the case of Scharsach and News
Verlagsgesellschaft (cited above, § 30). It reiterates that
there is little scope under Article 10 § 2 for restrictions on
political speech or on the debate of questions of public interest
(see, among many other authorities, Feldek, cited above, §
74). The Court is also mindful of the fact that the plaintiff B.T.
was the author of articles widely published in the popular daily
press as part of that debate. He thereby voluntarily exposed himself
to public criticism. The Court notes that the applicant's
disagreement with Mr B.T.'s views was formulated in indirect terms.
However, it considers that even harsh criticism in the present
context would be protected by Article 10 of the Convention, whether
expressed directly or indirectly.
- The
Court further recalls that 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 (see, for example, Ceylan v. Turkey [GC], no.
23556/94, § 37, ECHR 1999-IV; Lešník v.
Slovakia, no. 35640/97, § 63, ECHR 2003-IV). In the
present case, it is true that the applicant was subjected to
civil-law, rather than criminal, sanctions. However, it considers
that the measure imposed on the applicant, namely, the duty to
retract in a matter which affects his professional credibility as a
historian, is capable of producing a chilling effect. In this
connection, the Court emphasises that the rectification of a
statement of fact ordered by a national court in itself attracts the
application of the protection guaranteed by Article 10 of the
Convention.
- Having
regard to the foregoing considerations, the Court finds that the
Court of Appeal and the Supreme Court did not convincingly establish
any pressing social need for putting the protection of the
personality rights of a participant in a public debate above the
applicant's right to freedom of expression and the general interest
in promoting this freedom where issues of public interest are
concerned. The reasons adduced by those courts cannot be regarded as
a sufficient and relevant justification for the interference with the
applicant's right to freedom of expression. The national authorities
therefore failed to strike a fair balance between the relevant
interests.
- Accordingly,
the interference complained of was not “necessary in a
democratic society” within the meaning of Article 10 § 2
of the Convention.
There
has accordingly been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed EUR 4,000 in respect of non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that it should award the full sum claimed, i.e. EUR
4,000.
B. Costs and expenses
- The
applicant claimed EUR 460 in respect of the court fees and legal
costs payable by him in the domestic proceedings. He also claimed
EUR 1,850 for the costs and expenses incurred before the Court.
This amount corresponds to EUR 1,720 in legal costs billable by his
lawyer (4 hours spent on client consultations, 4 hours spent on
case-law research and 7 hours spent on drafting submissions) as per
invoice, and EUR 130 in clerical costs.
- The
Government contested these claims.
- 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 have been actually and necessarily incurred and were
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 entire sum claimed, i.e. EUR
2,310.
C. Default interest
- The
Court considers it appropriate that the default interest 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
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage,
(ii) EUR
2,310 (two thousand three hundred and ten 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.
Done in English, and notified in writing on 1 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
