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THIRD
SECTION
CASE OF RINGIER AXEL SPRINGER SLOVAKIA, A. S. v. SLOVAKIA
(Application
no. 41262/05)
JUDGMENT
STRASBOURG
26 July
2011
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 Ringier Axel
Springer Slovakia, a. s. v. Slovakia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41262/05)
against the Slovak Republic lodged with the Court under
Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) on
27 October 2005 by a joint-stock company
established under the laws of Slovakia, the name of which is now
Ringier Axel Springer Slovakia, a. s. (“the applicant
company”), and which was then called RINGIER SLOVAKIA a.s.
- The
applicant company was represented by Mr J. Havlát, a lawyer
practising in Bratislava. The Government of the Slovak
Republic (“the Government”) were represented by their
Agent, Ms M. Pirošíková.
3. The
applicant company alleged, in particular, that the outcome of a libel
action taken against its legal predecessor at the domestic level was
arbitrary both in terms of substance and procedure and that, as such,
it was contrary to the applicant company’s rights under Article
10 of the Convention
- On
17 May 2010 the Court
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company was established in 1990 and has its
seat in Bratislava. It is a multimedia
publishing house.
A. Background
- The
applicant company’s legal predecessor, A., was the publisher of
a popular national daily newspaper.
- A.
employed, among others, reporters B. and C.
- On
14 June 1999 B. received an anonymous phone call informing him of an
incident taking place at that very moment involving individuals D.
and E. The incident was said to be taking place in a pubic restaurant
and is described below.
- At
that time, D. was a Member of Parliament, a municipal mayor and the
president of a political party. E., for his part, was vice-president
of the Police Corps of the Slovak Republic.
- In
the days that followed, A. and another publisher printed a series of
articles about the incident. The details are described in paragraphs
21 to 25 below.
- The
behaviour of E. in the context of the incident was subsequently
investigated by the Police Inspection Service, in particular as
regards the allegations that he had wet his pants and threatened
to organise civic disturbances (see below).
On
the basis of a report issued on 6 July 1999, E., the personnel
of the restaurant and a number of witnesses having been
interviewed, no impropriety on the part of E. was established.
- At
a later point E. left the police force on his own initiative.
- Both
D. and E. subsequently successfully sued A. for libel. The
proceedings concerned by the present application are those instituted
by E. They are described in paragraphs 26 to 44 below.
- Following
the proceedings, in 2004, A. was merged with the applicant company.
B. Incident on 14 June 1999
- In
the anonymous phone call mentioned in paragraph 8 above, the caller
informed B. that D. and E. were sitting in a public restaurant and
that D. had previously urinated on the terrace of that restaurant.
- In
a matter of minutes, B. arrived at the restaurant, where he saw D.
and E. as they were about to leave. He ordered a drink and observed
them. Judging by the way they were walking and holding each other up,
B. had the impression that they were under the influence. In total,
B. had spent up to ten minutes in the restaurant before D. and E.
left.
- B.
then interviewed the waitress and some of the diners, following which
he left and wrote the first of the articles described below.
- The
following morning B. revisited the restaurant, re-interviewed the
waitress and photographed the location of the incident.
- In
the subsequent days contact and a meeting were arranged between F.,
an eyewitness to the incident, and B., who was assisted by C. and
another colleague.
- Contact
and a meeting between E. and B. were also arranged with a view
to obtaining E.’s position. In that meeting, E. admitted having
been at the restaurant with D. but denied any impropriety. He
requested that his name not be disclosed, as that would ruin his
career in the police force.
C. Coverage of the incident
- On
16 June 1999 the paper in question printed an article entitled “[D.]
‘introduced himself’ in [the restaurant] on Monday”.
The article included the following text:
“‘[D.] is sitting in [the restaurant]
rollicking drunk’, one of our readers reported to the editorial
office [of the newspaper] on Monday evening. As we checked with our
own eyes, it really was true. The president [of the political party]
was really sitting in the restaurant named and his appearance
revealed that our reader had not done him an injustice. [D.] was
accompanied by an individual who claimed to be a high-ranking police
official. ‘Gentlemen brothers’ (páni bratia)
[D.] boomed as he staggered from the terrace to the bar. Then, as if
he wanted to take flight with his arms outstretched, [he] gave an
order for departure and headed for the stairs. His friend even
offered to help him out, but [D.] refused. ‘Come with me’
[he] called out to the forty or so diners present. Where, he did not
say. But none of the diners stood up. As alleged by several
eyewitnesses, only shortly before our arrival [D.] had urinated off
the terrace of the restaurant onto the pavement. According to our
findings the president [of the members of the party] arrived at the
restaurant [...] already in an inebriated state: ‘when he
arrived he already looked a state; he only had a few cognacs here’,
we were told by one of those present, who does not wish to be named.
Contented, [D.] was finally driven off [in his car] by his driver,
who had been hanging about outside nervously the entire time waiting
for the president to have his fill of fun ...”
- On
22 June 1999 the paper printed an article entitled “Have the
leader and high-ranking police officer planned a coup? An eyewitness
to [D.]’s running wild has spoken out”. The article
included the following text:
“[The paper] was the first to report that last
week the president of [the political party] [D.], while intoxicated,
urinated off the terrace of a Bratislava restaurant [...] onto the
pavement. For publishing this information, [D.] wants to sue our
paper and claim 1,000,000 [Slovakian korunas]. We bring you now the
account of an eyewitness to [D.’s] running wild on Monday: ‘I
was sitting with my friends at the bar. [D.] arrived with a man who
claimed to be a high-ranking police officer. [D.] came up to the bar,
obviously under the influence, ordered two beers and [the two] went
to sit on the terrace. [...] On the terrace, they were served by a
waitress. They were drinking cognac. After a while one man who had
been sitting with them left and said that the policemen had wet
[himself] on the chair. The policeman himself then walked from the
terrace to the interior of the restaurant and we really saw that he
was completely wasted. He came back a moment later and fell asleep in
his chair’. The witness added, ‘the policeman also told
[D.]: ‘I will ensure that there are civic disturbances within
two weeks, don’t worry about anything, but you have to provide
me with support’. [D.] rejoined: ‘Don’t worry, you
are under my protection.’ We laughed at that because [D.] must
have misunderstood the meaning of support, since he started urinating
off the terrace. [He] and the policeman were holding each other up.
The concrete railing is relatively high, so he had difficulty, he was
standing on tip toes, he was doing what he could’, the
[witness] recalls as [D.] answered the call of nature. [...] [The
witness] also recalls that the policeman’s head had dropped and
had had to be supported by a plastic chair [...]. [The paper]
has found out that [D.] was in fact in the company of a high-ranking
police officer. His identity is known to our paper.”
- On
23 June 1999 the paper printed an article entitled “[The
Minister of the Interior] has entrusted the investigation of the
scandal to the Police Inspection Service. [D.] went on the rampage
with the police vice president”. The article included the
following text:
“[The paper] has established the identity of the
high-ranking police officer who accompanied the leader of [the
political party] [D.] to the restaurant last week [...]. [D.] went on
the rampage in this establishment with the vice-president of the
police [corps], colonel [E.]. Shortly after the incident the
president of the [political party] declined to disclose the identity
of the man, identifying him in the media as a friend. The Minister of
the Interior [...] has already charged the Police Inspection Service
with investigating the scandal. ‘I cannot believe things went
that far. If they did, then I will act according to the findings
of the investigation. Everyone is the master of their own fate’
the Minister stated for the paper. He did so in reply to our question
as to whether the vice president would be removed from office
should the information that we had been published in our daily
be confirmed. Let us be reminded that, according to an
eyewitness to the incident, the president of [the political party]
and the vice president of the police [corps] were drinking
cognac on a terrace. ‘After a while one man who had been
sitting with them left and said that the policeman had wet [himself]
on a chair. The policeman himself then walked from the terrace to the
interior of the restaurant and we really saw that he was completely
wasted’, the witness recalled. According to him, the
vice-president [E.] also held [D.] up when the latter, standing on
tip toes, urinated off the terrace onto the pavement. The witness
likewise heard [E.] suggest to [D.] that within two weeks he would
ensure that there were civic disturbances. [He] asked the president
of [the political party] for ‘support’. [E.] confirmed to
the paper yesterday that he had been drinking in [the restaurant]
with [D.]. However, he refutes the claim that he had wet [himself].
He also claims that he has never planned any civic disturbances with
[D.]. The president of the police stated for the paper that: ‘If
it were proven that what you have written is true, I, as president
[of the police corps], would be very sorry. That’s all I have
to say.’”
- The
articles mentioned above were also published in the on-line version
of the newspaper on 16, 22 and 23 June 1999.
- Some
of the information from the articles mentioned above was used in an
article published on 24 June 1999 in a newspaper in the Czech
Republic entitled: “[D.] did not urinate onto the people alone,
he was assisted by the vice president of the police force”.
D. Libel action
1. The action
- On
21 March 2001 E. sued A. in civil courts for libel, demanding
publication of a correction and an apology and claiming the
equivalent of some 23,000 euros (EUR) in compensation for damage to
his reputation.
- E.
admitted having been at the restaurant and having consumed alcoholic
beverages in a moderate quantity with D. at the given time but
contested the truthfulness of all the other facts alleged in the
articles. He argued that his personal integrity had been
interfered with and that he had been falsely discredited, in
particular in the sphere of his service ranking, his civic dignity
and his family life.
2. First instance
- On
18 October 2001, 16 September 2002, 31 October 2002, 16 December
2002 and 12 June 2003 the Zilina District Court (Okresný
súd) held hearings. At the latter hearing, the District
Court invited the parties to adduce further evidence and instructed
them that once the evidence-taking was closed, they would have only a
limited possibly to adduce further evidence in the event of an
appeal. The parties declared that they had no further evidence to
adduce, following which the evidence taking was closed and a
judgment was given.
- In
the judgment of 12 June 2003 the District Court found for the
claimant. It ordered A. to publish in the above mentioned
newspaper an article correcting the inaccurate information,
accepting that such information was false and apologising to E.
A.
was also ordered to pay the amount claimed (see paragraph 26 above)
together with the claimant’s legal costs.
- The
District Court had examined testimonies by D., his driver G., the
claimant’s wife, B., C., F., another diner at the restaurant,
H., and two other witnesses.
- The
District Court had also examined the contents of the court file
concerning the libel action by D. on the basis of the same facts and
the case file concerning disciplinary proceedings against E.
Reports
by the National Institute of Meteorology and a sworn expert on
toxicology had also been taken into account.
- The
District Court considered untrustworthy the submissions of B. and C.,
the authors of the articles, one of whom had witnessed a part of the
reported incident, and F., on whose statements B. and C. had mostly
relied.
- The
District Court considered that D., E. and the remaining witnesses
either did not confirm or actually contested the reported facts as to
the behaviour of D. and E.
- In
conclusion, A. had failed to establish the truthfulness of the
facts and the articles could not be considered a justified critique.
- The
District Court observed that there were opposing interests at stake,
in particular, the freedom of expression under Article 10 of the
Convention and the right to respect for private life under Article 8
of the Convention.
- Weighing
the right of E. to have his personal integrity protected against the
right of A. to freedom of expression, the District Court found that
the articles had significantly, and without acceptable justification,
damaged E.’s position in his employment, family and society in
general.
3. Appeal
- A.
appealed, arguing that the District Court had erred in the assessment
of the facts and in the application of the law. In particular, the
District Court had failed to explain why it considered untrustworthy
the evidence of B., C. and F. It also contended that the District
Court had arbitrarily considered H., who had had no clear
recollection of the relevant events, to be the key witness for the
defence, while the key witness had in fact been F., who confirmed
that E. had been intoxicated, that he had spoken of receiving
protection [from D.], that E.’s head had dropped and had to be
supported by a plastic chair and that E. had had a damp patch on his
trousers, giving the impression that he had urinated in them.
A.
requested that the discrepancy in the testimonies be explained by
means of a face-to-face witness meeting.
- The
Zilina Regional Court (Krajský súd) called a
hearing of the appeal for 3 February 2004. A. was summoned through
the intermediary of its lawyer but excused itself and agreed to the
hearing’s taking place in its absence.
- On
3 February 2004 the Regional Court held a hearing at which it
questioned the claimant (see paragraph 44 below). Neither A. nor its
lawyer was present.
- Following
the hearing, on the same day, the Regional Court upheld the
first-instance judgment but reduced the amount of damages to the
equivalent of some EUR 12,250.
- The
Court of Appeal found that neither B. nor C. nor F. had seen or
directly testified that E. had urinated in his trousers, that he had
incited civic disturbances and that he had held D. up while the
latter had urinated from the terrace of the restaurant.
- The
Court of Appeal relied on the principle of “truthfulness of
information”, consisting of the following elements. Information
intended for publication was to be verified by at least two but
ideally more credible and mutually independent sources with care
adequate to the circumstances. The law could only protect the
journalists if they could establish the truthfulness of the impugned
material as well as their bona fides in publishing it and the
presence of a public interest in the matter.
- Under
the applicable procedural rules it was not permissible at the
appellate stage to take new evidence, at the request of the parties,
which had not been adduced at the first-instance level. The Court of
Appeal found that it therefore could not call a face-to-face witness
meeting as requested by A. It followed that, in the given evidentiary
situation, the conclusions of the first-instance court as to the
essence of the claim were justified.
- However,
the Court of Appeal considered the existing evidence insufficient to
justify the award of damages made by the first-instance court. It was
therefore necessary to take new evidence of the court’s own
motion by hearing the claimant and, eventually, to reduce the amount
of the award. It held it established that the greatest loss that the
claimant had suffered had been in the area of his employment.
E. Constitutional complaint
- On
7 October 2004 the applicant company lodged a complaint under Article
127 of the Constitution with the Constitutional Court (Ústavný
súd), directed against the decision of the Court of
Appeal.
- The
applicant company pointed out that the Court of Appeal had considered
as decisive whether or not the defendant could establish the
truthfulness of the reported facts. This was, however, not compatible
with the principle of freedom of expression, which also extended to
untrue information.
- The
applicant company submitted that B. had verified the facts by
witnessing the incident in person and that B. and C. had verified the
facts by interviewing witness F. and the claimant. They had thereby
acted bona fides and in accordance with journalistic ethics.
What also was of relevance was that the claimant had been a public
figure. The ordinary courts, however, had completely omitted to carry
out an assessment of these essential components of the concept of
freedom of expression.
- The
applicant company considered the amount of the damages awarded to be
excessive, referring to the judgment of the Court in the case of
Marônek v. Slovakia (no. 32686/96, ECHR 2001-III), where
the equivalent of some 5,850 European Currency Units worth of damages
in a libel case had been considered excessive.
- The
applicant company contended that it had been incompatible with the
guarantees of a fair trial and, in particular, the equality of arms
principle for the Court of Appeal to base its ruling on damages
solely on the additional evidence provided by the claimant, as this
evidence had not been adduced by the parties, it had served only one
of the parties and – as it had been taken at the appellate
level – the defendant had had no opportunity to contest
it. Moreover, this evidence was not impartial by definition and the
Court of Appeal had failed to corroborate it by other evidence, which
was contrary to the established judicial practice.
- As
regards the finding that the claimant’s greatest loss had been
in the sphere of his employment, the Court of Appeal had failed to
take into account that the disciplinary proceedings against the
claimant had in fact ended in his favour.
- According
to the applicant company, the ordinary courts had erred in the
assessment of the witness evidence, in particular that provided by
F., by arbitrarily selecting elements benefiting the claimant. In so
far as the testimony of F. was concerned, in addition, the ordinary
courts had failed to support their findings with adequate
reasoning.
- On
16 March 2005 the Constitutional Court declared the complaint
inadmissible. Observing that it was not a court of a third or fourth
instance, the Constitutional Court found no indication of any
unlawfulness or constitutionally relevant arbitrariness in the
proceedings and decisions of the Court of Appeal. As to the
complainant’s specific argument that the Court of Appeal had
taken new evidence (see paragraph 44 above) without informing the
complainant and giving it an opportunity to comment, the
Constitutional Court found that the complainant had failed to exhaust
ordinary remedies by raising this argument by way of an appeal on
points of law under Article 237 (f) of the Code of Civil Procedure
(Law no. 99/1963 Coll., as amended – “the
CCP”).
The
decision of the Constitutional Court was served on the applicant
company on 28 April 2005.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution (Constitutional Law no. 460/1992
Coll., as amended)
- The
status of international human rights treaties in Slovakia is defined
in Article 7 § 5, the relevant part of which reads as follows:
“International treaties on human rights and
fundamental freedoms .... which have been ratified and promulgated in
the manner required by statute take precedence over statue.”
- Article
144 § 1 provides that:
“In the discharge of their function, judges are
independent and, in decision-making, they are only bound by the
Constitution, constitutional law, international treaties under
Article 7 § 5 [of the Constitution]
and statute.”
B. Civil Code (Law no. 40/1964 Coll., as amended)
- The
protection of personal integrity is governed by the provisions of
Articles 11 et seq. In so far as relevant, these provide:
“Article 11
Every natural person shall have the right to protection
of his or her personal integrity, in particular his or her ... civil
honour and human dignity, as well as privacy, name ...
...
Article 13
1. Every natural person shall have the right,
inter alia, to request an order restraining any unjustified
interference with his or her personal integrity, an order cancelling
out the effects of such interference and an award of appropriate
compensation.
2. If the satisfaction afforded under
paragraph 1 of this Article is insufficient, in particular because
the injured party’s dignity or social standing has been
considerably diminished, the injured party shall also be entitled to
financial compensation for non pecuniary damage.
3. When determining the amount of
compensation payable under paragraph 2 of this Article, the court
shall take into account the seriousness of the harm suffered by the
injured party and the circumstances in which the violation of his or
her rights occurred.”
C. Code of Civil Procedure (Law no. 99/1963 Coll., as
amended)
- The
Code regulates the conduct of the court and parties in civil
proceedings so as to ensure the just protection of the rights and
legally recognised interests of the parties as well as promoting the
observance of laws, honest fulfilment of duties and respect for the
rights of other persons (Article 1).
- Article
18 it provides that parties to civil proceedings have equal standing.
The court is duty-bound to ensure they have equal opportunity
to assert their rights.
- Parties
to the proceedings have the right to comment on any evidence adduced
and taken (Article 123).
- Under
Article 228 § 1 (d), civil proceedings can be reopened where the
Court has found a violation of the requesting party’s
Convention rights and where serious consequences of the violation
have not been adequately redressed by the award of just satisfaction.
- A
Court of Appeal can in principle reassess evidence or take further
evidence provided that it can be done without delay (Article 213 §
2, as in force at the relevant time).
- Under
Article 236 an appeal on points of law (dovolanie) lies
against final and binding decisions of appellate courts if certain
statutory admissibility criteria are met.
- The
general admissibility criteria, that is, those applicable to both
judgments (rozsudok) and resolutions (uznesenie), are
set out in Article 237.
These
comprise situations where: (a) the courts decided in a matter outside
their jurisdiction; (b) a person who acted as a party to the
proceedings lacked the legal capacity to be a party to court
proceedings; (c) a party to the proceedings lacked the capacity
to act in court proceedings and was not duly represented; (d) the
courts decided on a matter which had been res iudicata or
which had already been pending in other proceedings (lis pendens);
(e) the proceedings could only commence by way of an action and no
such action was actually filed; (f) the courts prevented a party to
the proceedings from acting before them; and (g) where the case was
decided upon by an excluded judge or where the composition of the
court was incorrect.
- In
addition to the above-mentioned general admissibility criteria,
special admissibility criteria apply if the Court of Appeal decided
in the form of a judgment. These are defined in Article 238.
- Under
paragraph 1 of Article 238 an appeal on points of law is admissible
where the appellate court overturned the judgment of a first instance
court.
- In
accordance with paragraph 2 of Article 238, an appeal on points of
law also lies against a judgment of the appellate court in which the
latter did not follow the binding legal view previously expressed in
the same matter by the court of cassation.
- Under
Article 238 § 3 (a), an appeal on points of law is also
admissible against a judgment of an appellate court in which it
upholds a judgment of a first-instance court and, at the same
time, rules that such an appeal is admissible as the case
concerns a matter of particular legal importance.
- Finally,
under Article 238 § 3 (b), an appeal on points of law is also
admissible against a second judgment of an appellate court in which
it upholds a second judgment of a first-instance court if, in the
second round, the first-instance court decided differently than in
its first judgment (which had been quashed by the first decision of
the Court of Appeal) because it was bound by the legal view expressed
by the Court of Appeal in its first judgment. This rule also applies
to the third and, as the case may be, subsequent judgments of the
Court of Appeal.
- As
to the merits, an appeal on points of law can only be based on the
grounds defined in Article 241 § 2, that is to say that the
proceedings have been vitiated by an error envisaged in Article 237
(letter (a)), that the proceedings have been vitiated by another
error that resulted in an incorrect decision on the merits (letter
(b)) and that the decision rests on an error of law (letter (c)).
- In
a decision of 23 July 2003 in an unrelated case no. IV. ÚS
130/03, the Constitutional Court observed that, in relation to
evidence-taking, the right to a fair hearing under Article 6 §
1 of the Convention was to be understood so that a party to the
proceedings must be provided with the opportunity to take part
in the evidence-taking in a manner defined by statute, which means to
adduce evidence, to be present when the evidence is being taken,
including the right to interview witnesses and parties, and to take
a position in respect of evidence adduced and taken. For that reason
a party to the proceedings must always have the opportunity to be
present at the evidence-taking. Should that not have been the case,
the error can be qualified as “judicial conduct that has
prevented the party from acting before a court”, thereby
constituting a ground for admissibility of an appeal on points of law
under Article 237 (f) of the CCP.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained under Article 10 of the Convention that
the ordinary courts had (i) incorrectly required its legal
predecessor to prove the absolute truthfulness of the published
information, (ii) failed to assess the situation under the
established criteria, (iii) found arbitrarily against the applicant’s
legal predecessor, and (iv) awarded an excessive amount of
damages. Article 10 of the Convention 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.”
A. Admissibility
- The
Government objected, arguing that, in so far as the applicant company
had contested the amount of adjudicated damages, it had failed
to fulfil the requirement of exhaustion of domestic remedies
under Article 35 § 1 of the Convention. In particular,
the Government pointed out that, by reducing, in its judgment of 3
February 2004, the amount of the adjudicated damages, the Regional
Court had in fact overturned the first instance judgment, which
constituted grounds for appealing against that judgment on points of
law under Article 238 § 1 of the CCP. The applicant company had
not, however, made use of that remedy.
- In
reply, the applicant company disagreed and submitted that, in fact,
the decision of the Court of Appeal did not amount to a substantive
overturning of the first-instance order for payment of damages. The
substance of the order had been upheld and what had been modified was
merely the scope of the order. To the extent that the claim for
damages had been allowed by the Court of Appeal, that court’s
decision in fact amounted to upholding the first-instance judgment
and could not be appealed against on points of law. In so far as the
Court of Appeal disallowed the claim for damages, its decision had in
fact been favourable to the applicant company and, by the nature of
things, the applicant company had no standing to appeal against
such decisions on points of law.
- The
applicant company also submitted that the judgment of 3 February
2004 could not be appealed against on points of law on the basis of
Article 237 (f) of the CCP either since only procedural errors that
were in violation of a specific statutory procedural rule could
be appealed against on points of law. The applicant company
considered that no specific statutory procedural rule had been
breached in the case of its legal predecessor.
- The
Court notes that in the first-instance judgment of 16 September 2002
A. was ordered to pay damages worth the equivalent of some EUR 23,000
(see paragraphs 26 and 29 above) and that in the judgment of the
Court of Appeal of 3 February 2004 the amount of damages was
reduced to the equivalent of some EUR 12,250 (see
paragraph 40 above).
- The
Court observes that, as regards the allowed part of the claimant’s
action for damages, the Court of Appeal found that the existing
evidence was insufficient to justify the award of damages made by the
first instance court (see paragraph 44 above). The Court of
Appeal therefore took new evidence on which – in its absence -
A. had had no opportunity to comment (see paragraph 39 above).
Nevertheless, the Court of Appeal went on to adjudicate on the
damages (see paragraph 40 above).
- At
the same time, the Court takes notice that in its decision of
16 March 2005 the Constitutional Court found that it could not
examine the matter on account of the applicant company’s
failure to raise it first by way of an appeal on points of law
under Article 237 (f) of the CCP (see paragraph 52 above).
- In
this context, the Court observes that under Article 237 (f) of the
CCP a decision of a Court of Appeal can be appealed against on points
of law where the courts prevented the party concerned from acting
before them.
- The
Court also notes that under Articles 1 and 18 of the CCP, it is part
of the purpose of the proceedings and is indeed the statutory duty of
the courts to ensure just protection of the rights and legally
recognised interests of the parties and equal opportunity to assert
their rights.
More
specifically, under Article 123 of the CCP, parties to the
proceedings have the right to comment on any evidence taken.
- The
Court further observes that under Article 144 §
1 in conjunction with Article 7 § 5 of
the Constitution, in the discharge of their function, judges are
bound not only by national legislation, but also by international
human rights treaties, which take precedence over statute, if
ratified and promulgated in the manner required by statute.
- In
view of this constitutional and statutory framework and the fact that
it only has a limited power to review questions of compliance with
national law (see, mutatis mutandis, Beyeler v. Italy
[GC], no. 33202/96, § 108, ECHR 2000-I)), the Court accepts
the conclusion of the Constitutional Court in its decision of 16
March 2005 that the applicant company could have arguably challenged
the judgment of 3 February 2004 by way of an appeal on points of
law under Article 237 (f) of the CCP as regards the allowed part of
the claim for damages.
- It
follows that, irrespective of availability of an appeal on points of
law under Article 238 § 1 of the
Convention, the specific complaint concerning the amount of damages
must be rejected under Article 35 §§ 1 and 4
of the Convention for non-exhaustion of domestic remedies.
- The
Court further notes that the applicant company’s remaining
Article 10 complaints, in particular those alleging that the domestic
courts had incorrectly required its legal predecessor to prove the
absolute truthfulness of the published information; that they had
failed to assess the situation under the criteria stemming from the
Convention case-law; and that they had arbitrarily found against the
applicant’s legal predecessor, concern the merits of the case
and, as such, can be severed from and examined independently of the
question of damages.
- The
Court considers that these remaining Article 10 complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
applicant company complained that the domestic
courts had examined the libel action against its legal predecessor by
applying an incorrect test and had arbitrarily found for the
claimant.
- The
Government did not contest that the impugned judgments constituted an
interference with the applicant company’s rights under Article
10 of the Convention and submitted that it had been prescribed by
law, in particular by the relevant provisions of the Civil Code, that
it had followed the legitimate aim of protecting the reputation or
rights of others and that it had been necessary in a democratic
society.
- As
to the latter criterion, in the Government’s view, the articles
in question had amounted to statements of fact and the domestic
courts had duly examined whether the facts contained therein had been
true and capable of interfering with the claimant’s personal
integrity. They rightly assessed the available evidence and concluded
that the claimant’s right had outbalanced that of A.
- The
Government also considered that A. had had ample opportunity to
adduce further evidence to support its case.
- Lastly,
the Government submitted that the present case was to be
distinguished from that of Bladet Tromsø and Stensaas v.
Norway ([GC], no. 21980/93, ECHR 1999 III) in that A. itself
was the author of the contested articles and in that the articles did
not concern a current issue of public debate but were aimed at
stirring up a scandal.
- In
reply, the applicant company did not contest that the interference
complained of had been prescribed by law and had followed a
legitimate aim. However, it contended that the interference had not
been necessary in a democratic society.
- For
that matter, accepting that the articles in question contained
predominantly statements of fact, the applicant company relied on the
Bladet Tromsø and Stensaas judgment (cited above) and
argued that truthfulness of published information was not a
precondition for journalists to enjoy the protection of Article 10 of
the Convention. The availability of that protection depended on
criteria established by the Court’s case-law, none of which
had, however, been examined by the domestic courts, their analysis
having been reduced to the simple test of truthfulness.
- In
conclusion, the applicant company argued that the articles in
question concerned a topic of legitimate public concern and
contributed to the public debate. The journalists involved had spared
no effort that could legitimately have been expected of them to
verify the information published and had acted in good faith with a
view to providing the public with accurate and credible information.
Last, but not least, the claimant had been given opportunity to
express his position shortly after the events.
2. The Court’s assessment
(a) Interference, legality and legitimate
aim
- The
Court finds, and it has not been disputed between the parties, that
the judgments of the District Court and the Regional Court in the
action brought by E. for protection of his personal integrity
constituted an interference with the right of the applicant
company’s legal predecessor to freedom of expression, as
guaranteed by Article 10 § 1 of the Convention.
- Furthermore,
the Court finds, and it has likewise not been disputed by the
parties, that the interference complained of was prescribed by law,
namely, Articles 11 et seq. of the Civil Code, and that it
pursued the legitimate aim of protecting the reputation and rights of
others.
Thus
the only point in issue is whether the interference was “necessary”
in a “democratic society”.
(b) Necessity
- In
that respect, at the outset, the Court reiterates that the freedom of
expression constitutes one of the essential foundations of a
democratic society and that the safeguards to be afforded to the
press are of particular importance. Whilst the press must not
overstep the bounds set, inter alia, in the interest of “the
protection of the reputation or rights of others”, it is
nevertheless incumbent on it to impart information and ideas of
public interest. Not only does the press have the task of imparting
such information and ideas: the public also has a right to receive
them. Were it otherwise, the press would be unable to play its vital
role of “public watchdog” (see, for instance, Observer
and Guardian v. the United Kingdom, 26 November 1991, §
59, Series A no. 216).
- The
right to freedom of expression 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 that offend, shock or disturb the State or any
section of the community. In addition, journalistic freedom also
covers possible recourse to a degree of exaggeration, or even
provocation (see De Haes and Gijsels v. Belgium, 24 February
1997, § 47, Reports of Judgments and Decisions 1997 I).
- The
Court also reiterates the distinction between statements of fact and
value judgments. While the existence of facts can be demonstrated,
the truth of value judgments is not susceptible of proof (see, for
instance, Feldek v. Slovakia, no. 29032/95, §§
75-76, ECHR 2001 VIII; Jerusalem v. Austria, no.
26958/95, § 43, ECHR 2001-II; De Haes and Gijsels, cited
above, § 47; and Oberschlick v. Austria (no. 2), 1 July
1997, § 33, Reports 1997 IV).
- However,
Article 10 of the Convention does not guarantee a wholly unrestricted
freedom of expression even with respect to press coverage of matters
of serious public concern. Under the terms of paragraph 2 of the
Article the exercise of this freedom carries with it “duties
and responsibilities”, which also apply to the press. By reason
of the “duties and responsibilities” inherent in the
exercise of the freedom of expression, the safeguard afforded by
Article 10 to journalists in relation to reporting on issues of
general interest is subject to the proviso that they are acting in
good faith in order to provide accurate and reliable information in
accordance with the ethics of journalism. Furthermore, special
grounds are required before the media can be dispensed from their
ordinary obligation to verify factual statements that are
defamatory of private individuals. Whether such grounds exist depends
in particular on the nature and degree of defamation in question and
the extent to which the media can reasonably regard their sources as
reliable with respect to the allegations (see, for example, Standard
Verlagsgesellschaft mbH v. Austria (no. 2), no.37464/02, §
38, 22 February 2007).
- As
to the test of “necessity in a democratic society”,
the Court reiterates that it requires the Court to determine whether
the interference complained of corresponded to a “pressing
social need”. In assessing whether such a “need”
exists and what measures should be adopted to deal with it, the
national authorities are left a certain margin of appreciation.
This power of appreciation is not, however, unlimited but goes hand
in hand with a European supervision by the Court, whose task it is to
give a final ruling on whether a restriction is reconcilable with
freedom of expression as protected by Article 10 (see, for example,
Bezymyannyy v. Russia, no. 10941/03, § 36, 8 April
2010 and Radio Twist, A.S. v. Slovakia, no. 62202/00, §
49, ECHR 2006 XV).
- The
Court’s task in exercising its supervisory function is not to
take the place of the national authorities but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation (see, among many other authorities, Fressoz and Roire
v. France [GC], no. 29183/95, § 45, ECHR 1999-I and
Feldek v. Slovakia, no. 29032/95, § 73, ECHR
2001 VIII).
- This
does not mean that the supervision is limited to ascertaining whether
the respondent State exercised its discretion reasonably, carefully
or in good faith; what the Court has to do is to look at the
interference complained of in the light of the case as a whole. 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. 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. The Court must also ascertain whether the domestic
authorities struck a fair balance between the protection of
freedom of expression as enshrined in Article 10 and the protection
of the reputation of those against whom allegations have been made, a
right which, as an aspect of private life, is protected by Article 8
of the Convention (for a recapitulation of the relevant principles,
see Cumpǎnǎ and Mazǎre v. Romania [GC],
no. 33348/96, §§ 89 – 91, ECHR 2004 XI and
also Marônek, cited above, § 53).
(c) Application of the general principles
in the present case
- The
Court observes that in the present case the applicant company’s
legal predecessor was sued for libel by E., an individual directly
concerned by the articles published. The domestic courts determined
his action under a doctrine of “truthfulness of
information” which essentially consisted of determining
whether, as a matter of fact, the information contained in those
articles was true (see paragraph 42 above). It was with reference to
this criterion that evidence was taken and assessed and legal
conclusions were drawn.
- The
Court also observes that in so far as the Regional Court, in its
judgment of 3 February 2004, referred to other constituting elements
of the doctrine applied, such as the good faith of the journalists
and the presence of a public interest in the matters they had
reported on, it does not appear that any relevant analysis was
conducted or any specific judicial conclusions drawn on the basis of
such elements.
- More
specifically, the Court notes that the domestic courts do not appear
to have examined, either in form, or in substance, whether the
“duties and responsibilities” within the meaning of
Article 10 § 2 of the Convention were
observed on the part of the applicant company’s legal
predecessor. In particular, in fact, the domestic courts have in no
way examined on the facts or in the law whether the articles were
published in good faith in order to provide accurate and reliable
information in accordance with the ethics of journalism.
- In
so far as the Government sought to distinguish the present case from
that of Bladet Tromsø and Stensaas (cited above), the
Court observes that the defamation proceedings in that case concerned
a newspaper article containing factual statements not emanating
from the newspaper itself but from a report commissioned by the
authorities, while the newspaper had taken no independent steps to
verify its contents. The Court examined whether, in that case, there
were any special grounds for dispensing the newspaper from its
ordinary obligation to do so. In the Court’s view, that
depended on, in particular, the nature and degree of the defamation
at hand and the extent to which the newspaper could reasonably regard
the report as reliable with respect to the allegations in question.
The latter issue had to be determined in the light of the situation
as it presented itself to the newspaper at the material time, rather
than with the benefit of hindsight, on the basis of the findings of
fact made by a commission of inquiry a long time thereafter (see
Bladet Tromsø and Stensaas, cited above, § 66).
- The
Court acknowledges that the present case differs from Bladet
Tromsø and Stensaas, in particular in that the information
published by the applicant company’s legal predecessor did not
emanate from an external source but was, rather, established by its
own reporters. However, unlike in that case, the applicant company’s
legal predecessor in the present case did take independent steps to
verify the facts through its reporters, B. and C., who visited the
location of the incident and interviewed its witnesses and the
claimant. It therefore remained to be established whether these steps
were in accordance with its “duties and responsibilities”
within the meaning of Article 10 § 2 of the Convention.
- The
Court observes that, according to its case-law, an examination of the
case under the latter criteria would involve individual and
contextual assessment, with reference to the situation at the time
when the impugned articles were published, of such complex matters
as, for example, the importance of the public interest at stake in
correlation with the status of E., as contrasted to the status of D.,
the extent to which E. was involved in preparing the articles, the
necessity of disclosing the identity of E., the bona fides of
the applicant company’s legal predecessor, the genuine aim it
had followed in publishing the articles and the adequacy of the
efforts on the part of the applicant company’s legal
predecessor to verify the veracity of the information published from
the perspective of the ethics of journalism.
- In
this connection, the Court reiterates that, in view of the subsidiary
nature of its role, it must be cautious in taking on the role of
a first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case. It is not the
Court’s task to substitute its own assessment of the facts for
that of the domestic courts and as a general rule it is for
those courts to assess the evidence before them (see Europapress
Holding d.o.o. v. Croatia, no. 25333/06, § 62,
22 October 2009).
- The
Court acknowledges that the behaviour in public, while off duty, of
officials and civil servants vested with public authority may
arguably attract public interest.
- However,
the Court considers that it was crucial that the domestic courts make
a careful assessment of the presence and level of public interest in
the publishing of the impugned information in the present case as
well as strike a balance between any such public interest and the
individual interests of those concerned since, as a matter of
principle, domestic courts are better equipped to establish the facts
relevant to the ensuing legal analysis. This also applies to the
issue of the bona fides of the applicant company’s legal
predecessor and other aspects of the case that are necessary for
establishing whether the applicant company’s legal predecessor
had acted in accordance with the “duties and responsibilities”
inherent in Article 10 § 2 of the Convention.
The
Court considers that by failing to examine these elements of the
case, the domestic courts cannot be said to have “applied
standards which were in conformity with the principles embodied in
Article 10” and to have “based themselves on
an acceptable assessment of the relevant facts” (see
Kommersant Moldovy v. Moldova, no. 41827/02, § 38, 9
January 2007).
- The
foregoing considerations are sufficient to enable the Court
to conclude that the legal protection received by the applicant
company’s legal predecessor at the domestic level was not
compatible with the requirements of Article 10 of the Convention.
There has accordingly been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 6 §
1 OF THE CONVENTION
- The
applicant company complained that the proceedings had been unfair in
that the judgments were one-sided in favour of the claimant, in that
the judgments were supported by reasons which were contradictory and
as such inadequate and in that the principle of equality of arms had
not been respected in the proceedings in as much as new evidence (the
claimant’s additional submission) had been taken without being
proposed by the parties, benefiting solely the claimant and depriving
the applicant’s legal predecessor of the possibility to reply
(see paragraph 44 above).
The
applicant company relied on Article 6 § 1 of the Convention, the
relevant part of which provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
A. Parties’ arguments
- The
Government objected, arguing that the applicant company had failed to
satisfy the requirement of Article 35 §
1 of the Convention to exhaust domestic remedies in that it had
failed to assert its rights at the domestic level by way of an appeal
on points of law under Article 237 (f) of the CCP.
- In
respect of the additional evidence taken by the Court of Appeal at
the hearing of the appeal of the applicant company’s legal
predecessor, the Government pointed out that the applicant company’s
legal predecessor had been duly summoned to that hearing, that it had
excused itself and that it had agreed to the hearing’s taking
place in its absence (see paragraph 39 above). Moreover, as the
Government submitted, the Court of Appeal had acted in compliance
with the applicable law, in particular Article 213 §
2 of the CCP (see paragraph 60 above), which allowed for that court
to reassess and take new evidence.
- In
reply, the applicant company disagreed and raised similar arguments
as in connection with the complaint under Article 10 of the
Convention (see paragraphs 72 and 73 above).
B. The Court’s assessment
- The
Court reiterates that, in accordance with Article 19 of the
Convention, its duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as
they may have infringed rights and freedoms protected by the
Convention (see García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999-I, with further references).
- The
Court considers that, similarly as in respect of the Article 10
complaint (see paragraphs 81 and 82 above), in the specific
circumstances of the present case a distinction is to be made between
the part of the proceedings leading up to the substantive outcome of
the action and the part leading up to the domestic court’s
ruling concerning damages.
1. Substantive outcome of the action
- As
to the substantive outcome of the action, Court observes that it was
determined by the domestic court’s ruling ordering the
applicant company’s legal predecessor to publish an article
correcting the inaccurate information, accepting that such
information was false and apologising to E. (see paragraphs 29 and 40
above).
The
Court also notes, specifically, that the substantive outcome of the
action was not affected by the taking of additional evidence at the
appellate stage, which solely concerned the ruling on damages.
- In
connection with the substantive outcome of the action, the Court
finds that the facts of the case do not disclose any appearance of a
violation of Article 6 § 1 of the Convention.
It
follows that the relevant part of the application is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
2. The ruling on damages
- As
to the fairness of the proceedings in so far as the ruling on damages
is concerned, the Court observes that it has found above (see
paragraph 81) that a complaint under Article 10 of the Convention of
the outcome of these proceedings was inadmissible for non-exhaustion
of domestic remedies.
For
the same reasons, the reminder of the application must likewise be
rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
III. 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.”
- The
applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call
to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 10 of the
Convention concerning the substantive outcome of the action against
the applicant company’s legal predecessor admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
10 of the Convention.
Done in English, and notified in writing on 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
