SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29032/95 by Ľubomír FELDEK against the Slovak Republic

The European Court of Human Rights (Second Section) , sitting on 15 June 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mr M. Fischbach, Mr A. Kovler, judges , and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 September 1995 and registered on 31 October 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant is a Slovak poet, writer and publicist born in 1936. At present he is a Czech national and resides in Prague. Before the Court he is represented by Mr. E. Valko , a lawyer practising in Bratislava.

A. The particular circumstances of the case

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

On 20 July 1992 the newspaper Telegraf published a poem by the applicant. It was dated 17 July 1992 and entitled “Good Night, My Dear” ( Dobrú noc , má milá ) . One of its verses reads as follows:

“ In Prague prisoner Havel is giving up his presidential office.

In Bratislava the prosecutor is ruling again

And the ruling of one party is above the law.

Member of the SS and member of ŠTB [1] embraced each other.”

The poem was later published in another newspaper. On 1 and 3 August 1992 respectively, two journalists alleged in their articles that the expression “member of the SS” stood for Mr. Dušan Slobodník , then Minister for Culture and Education (hereinafter “D.S.”).

In the meantime, on 30 July 1992, several newspapers had published a statement which the applicant had distributed to the Public Information Service ( Verejná informačná služba ) . It was entitled “For a Better Picture of Slovakia - without a minister with a fascist past” ( Za lepší obraz Slovenska - bez ministra s fašistickou minulosťou ) , and it reads as follows:

“There has been a problem about how to keep a democratic character in [the Slovak] national emancipatory process, which we have tried to resolve many times. Until now, Slovakia has lost the most, when things related to the Slovak nation were in the hands of the wrong people who led us away from democratic evolution. The cost was high: for example, the loss of lives of the fighters in the Slovak National Uprising (1944) (hereinafter “SNU”) ( Slovenské národné povstanie ) .

Presently, we are scared that this mistake could be repeated again. To say that our way to Europe is by working together and co-operating in its democratic evolution is not enough. This is a direct international juristic condition and without it Europe will notice.

This thing (which I am scared of) I expressed in my polemics with [D.S.] last year, and life has finished the writing of our polemics, and my thoughts were proved.

This year [D.S.] became the Slovak Republic’s Minister for Culture and Education and the next thing was that his fascist past came out in public. [D.S.] managed this situation in a way that allowed the writer Ladislav Mňačko to prove he was a liar. But he still has not given up his ministerial post, although in any other country he would have done so already.

Does [D.S.] think that Slovakia is some special exception and that it is the only country having the right to revise the Nuremberg trials, which is compulsory for the post-war development of all other European countries?

Or is the message of the SNU not correct? Has the name of SNU changed? Does Mr. Mečiar think that having this minister in the Government will help him to persuade people in Europe that his talks about democratic ways in his Government are serious? Is it good to have [D.S.] in the Government when this fact will lead to the political, economic and cultural isolation of Slovakia? [D.S.] likes to use every chance to talk about improving the image of Slovakia around the world. I agree with him on this. He has an opportunity to personally do something in order to improve the image of Slovakia: to resign.”

On 9 September 1992 D. S. sued the applicant for defamation under Article 11 et seq. of the Civil Code before the Bratislava City Court ( mestský súd ) . He alleged that the verses “In Bratislava the prosecutor is ruling again … And the ruling of one party is above the law … And the SS and ŠTB hug each other” from the applicant’s poem referred to him. He also alleged that the statement from the applicant's subsequent letter published in the newspapers falsely referred to his fascist past. He claimed that the applicant should bear the costs of publication of an apology in five newspapers and also pay him SK 250,000 as compensation.

1. Proceedings before the Bratislava City Court

On 18 October 1993 the Bratislava City Court dismissed the action as, in its view, the applicant had not unjustifiedly interfered with D. S.’s right to protection of his personality. The Court established that D.S. had been a member of the Hlinka Youth ( Hlinkova mládež ) and that in February and March 1945 he had participated in a special course in Sekule organised by the German secret service. It further established that in May 1945 a military tribunal of the Soviet Army sentenced D.S. to 15 years’ imprisonment for having spied on Soviet troops. He served the sentence in camps of the former USSR until his release in 1953. In 1960 the Supreme Court of the former USSR quashed the sentence and discontinued the proceedings for lack of factual elements of an offence. The City Court noted that under the legal rules in force, i.e. Presidential Decree no. 5/1945, the Hlinka Youth was to be considered as a fascist organisation.

D. S. claimed that he had joined the Hlinka Youth only because it had been a prerequisite for his participation in a table-tennis tournament, and that he had been ordered to attend the course in Sekule but was sent back because of doubts as to his reliability. However, the City Court did not find these facts established. In its view, the fact that the sentence of 1945 had been quashed did not prove that D. S. had not been a member of the Hlinka Youth and had not attended the course in Sekule .

The City Court also noted that the relevant period of D.S.’s life had been dealt with by the press both in Slovakia and abroad prior to the applicant’s statement, and that on several occasions D. S. himself had commented and given interviews on those issues. It held that the applicant’s statement was based on information which had already been published in the press. It concerned a personality of public life who is inevitably exposed to a thorough scrutiny and sometimes also to criticism by other members of the society. By that statement, the applicant exercised his right to freedom of expression which had not unjustifiedly interfered with D. S.’s right to the protection of his personality.

2. Appeal proceedings

D. S. appealed to the Supreme Court ( Najvyšší súd ) . He alleged that the applicant had not proved that he had a “fascist past”, and that the City Court had not established the meaning of that term.

On 23 March 1994 the Supreme Court reversed the Bratislava City Court’s judgment and ordered that:

“... [the applicant] has to accept that ... [D.S.] shall distribute, if he thinks it fit, to the Press Agency of the Slovak Republic and to five newspapers of his own choice, both in Slovakia and abroad, the following declaration to be published at [the applicant’s] expense:

‘1) [The applicant’s] statement for [the agency] VIS published in daily papers on 30 July 1992 which reads: ‘This year [D.S.] became the Minister for Culture and Education of the Slovak Republic, and immediately thereafter his fascist past came out in public ... Does [ D.S ] think that Slovakia is some special exception and that it is the only country with the right to revise the philosophy of the Nuremberg process which is binding on the post-war development of all other European countries? ...’

2) The occasional poem .. entitled ‘Good Night, My Dear’ in its part ‘... In Bratislava the prosecutor is ruling again. And the ruling of one party is above the law. Member of the SS and member of the ŠTB embraced each other ...’ ... represents a gross slander and disparagement of the civil honour of the person and of the life, and an unjustified interference with the personality of ... Dušan Slobodník ...’

...

4)  [The applicant] must pay non-pecuniary damages of 200,000 Slovak crowns to ... [D.S.] ...”

The applicant was also ordered to pay the costs and the other party’s expenses.

The Supreme Court held the term “fascist past” as being equivalent to the statement that “a person was a fascist in the past”. It considered that the applicant himself had given a restrictive interpretation to that term in connection with D. S., namely the interpretation in accordance with the philosophy of the Nuremberg process. This philosophy was derived from the multilateral agreement of 8 August 1945 which included also the Statute of the International Military Tribunal, and which became part of the Czechoslovak legal order on 2 October 1947. The Supreme Court held that it was bound by the principle of individual responsibility which underlay the aforesaid agreement.

The Supreme Court further studied all available documents and evidence used during the Nuremberg process and relating to Slovakia. It found no reference to the Hlinka Youth in connection with fascist organisations in those documents. It established that propagation or putting into practice of fascist theories had not been inherent in the statutory rules and regulations governing the Hlinka Youth. If some persons had abused the Christian principles on which the organisation had been built, that was against the rules then in force. Such persons, and, as the case may be, also persons who had let themselves be abused for criminal purposes, were individually responsible. However, such was not the case of D. S. The court accepted the latter’s argument that he had learned about the real character of the course in Sekule , and that it was run by the German secret service only after he had started attending it.

As regards the poem by the applicant, the Supreme Court noted that it was dated 17 July 1992, i.e. the same day on which the sovereignty of the Slovak Republic had been declared from the balcony of the Slovak National Council, where D. S. had also been present. Shortly thereafter, the applicant had written his statement concerning D. S.’s past and two journalists interpreted the poem as a description of the events during the declaration of the sovereignty of Slovakia. They alleged that  by  the “member of the SS” the applicant had meant D. S. The court therefore concluded that the applicant had interfered with D. S.’s personality by his poem as well as by his statement of 29 July 1992.

The applicant’s request that the burden of proof in the case should be shifted onto D. S. or at least shared between the litigants was not accepted as it had no basis in domestic law and practice. The Supreme Court concluded that the applicant had not proved that D. S. had been a fascist in the past holding that the latter had joined the Hlinka Youth because he wanted to participate in sport activities and was not motivated by sympathies for fascist tendencies. As to the course in Sekule , it found that D. S. had not terminated it, and it was irrelevant whether he had been dismissed or had left it of his own initiative. The only relevant fact was that the latter’s past could not be considered as fascist from that point of view.

3. Proceedings concerning the applicant’s appeal in cassation

The applicant appealed in cassation ( dovolanie ) alleging, inter alia , a violation of his rights under Article 10 of the Convention. He claimed that the Supreme Court should have concluded from the relevant provisions of Presidential Decree no. 5/1945 that the Hlinka Youth had had the character of a fascist organisation, and that in accordance with the relevant provisions of the Slovak National Council’s orders nos. 1/1944 and 4/1944, participation in any activity within the Hlinka Youth was to be considered as participation in an unlawful fascist organisation. He further complained that the Supreme Court had not established with sufficient certainty whether D. S. had been actually dismissed from the course in Sekule , and whether he had or not undertaken to carry out terrorist activities.

On 25 May 1995 another chamber of the Supreme Court sitting as the Court of Cassation ( dovolací súd ) upheld the part of the decision on appeal according to which D. S. was entitled to arrange for publication of the text set out in the judgment of 23 March 1994 and concerning the statement of 29 July 1992. As for the remainder, the court quashed both the first and second instance judgments and sent the case back to the Bratislava City Court. It also held that a person could be considered as having a fascist past only if he had propagated or practised fascism in an active manner. Mere membership in an organisation and participation in a terrorist course which had not been followed by any practical acts could not be characterised as a fascist past.

As the applicant had not proved that D. S. had a fascist past within the above meaning, the court found that his statement on  D. S.’s past had been an unjustified interference with the latter’s personality. It admitted that the Slovak law characterised the Hlinka Youth as a fascist organisation. It recalled, however, that the relevant legal rules, including those invoked by the applicant, applied to natural persons only if the latter had been active in such organisations. Applying those rules to all members of such organisations without considering their actual deeds would mean the recognition of their collective guilt. In its view, the applicant’s argument that his statement about D. S.’s past was a value judgment could be accepted only if the applicant had expressly referred, in that statement, to the particular facts on which such a possible value judgment was based. The court stated inter alia :

“Indicating that [D. S.] has had a fascist past, is not a value judgment based on an analysis of facts, but an allegation (statement) made without any concurrent justification of factual circumstances, from which a conclusion can be inferred by a judging person. It could have been a fair comment if the statement of [the applicant] was accompanied by reference to membership in the Hlinka Youth and the participation in the course, i.e. to the activities which could be interpreted by [D. S.] as connected with the fascist past. Only such statement based on circumstantial facts used by a judging person, would be a fair comment, the truth of which would not require any proof. Only such an interpretation will guarantee a balance between the freedom of expression and the right to the protection of reputation within the meaning of Article 10 of the Convention.”

The court then found the restriction on the applicant’s freedom of expression compatible with the requirements of Article 10 § 2 of the Convention as it was necessary for the protection of D. S.’s reputation in accordance with Article 11 et seq. of the Civil Code.

As to the poem, the Court of Cassation quashed both the first and second instance judgments for lack of evidence and held that in further proceedings D. S. would have to prove beyond reasonable doubt that the applicant had referred to him in the poem. It quashed also the decision on appeal as to non-pecuniary damages and to the costs of the proceedings since their award depended on an assessment of both interferences complained of.

4. New proceedings before the Bratislava City Court

On 15 April 1996 the Bratislava City Court reached a new decision on the remainder of the case. First, it stayed the proceedings as to the poem stating that D. S., having regard to the Court of Cassation’s opinion that he must prove beyond reasonable doubt that the applicant had referred to his person in the poem, withdrew his action on this point on 9 October 1995. Secondly, it dismissed D. S.’s action as to non-pecuniary damages as, in its view, the weight of the applicant’s interference (i.e. his statement published on 29 July 1992) with D. S.’s right to protection of his personality did not cause any non-pecuniary damage under Article 13(2) of the Civil Code. The court also ordered D. S. to pay the applicant’s cost and expenses.

5. New appeal proceedings

On 25 November 1998, upon D. S.’s appeal, the Supreme Court upheld the judgment of the Bratislava City Court as to the merits of the case, but held that the parties did not have the right to have their court fees reimbursed.

B. The relevant domestic law and practice

a. Civil code

The right to protection of a person’s dignity, honour, reputation and good name is guaranteed, inter alia , by the Civil Code.

According to Article 11, a natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity as well as of privacy, his or her name and personal characteristics.

According to Article 13(1), a natural person has the right to request that unjustified interferences with his or her right to the protection of his or her personality should be stopped, that the consequences of such interferences should be removed, and that he or she should be granted appropriate satisfaction. Paragraph 2 provides that if the satisfaction under paragraph 1 appears to be insufficient, in particular because a person’s dignity and position in the society was considerably diminished, the person concerned is entitled to compensation for non-pecuniary damage. According to paragraph 3, the amount of the compensation to be paid under paragraph 2 shall be fixed by a court after considering the gravity of the damage and the circumstances under which a person’s right was violated.

The existence of an unjustified interference which is objectively capable of affecting a person’s rights under Article 11 et seq. of the Civil Code is an indispensable prerequisite for a successful claim for the protection of that person’s personality.

In accordance with the established practice, a plaintiff in defamation proceedings has to prove that the defendant’s allegations were objectively capable of affecting his rights under Article 11 of the Civil Code. If this is the case, the defendant is required to produce evidence capable of proving the truth of his allegations if the defence is to succeed.

b. Constitutional provisions and the Constitutional Court Act.

Article 26 of the Constitution provides in particular that freedom of expression and the right to information shall be guaranteed. Every person has the right to express his or her opinion in words, writing, print and any other means, and also to seek and disseminate ideas and information both nationally and internationally. No approval process shall be required for publication if the press, radio and television companies may be required to seek permission from governmental authorities to set up private business. Freedom of expression and the right to receive and disseminate information may be lawfully limited only where, in a democratic society, it is necessary to protect rights and freedoms of others, state security, law and order, health and morality.

Pursuant to Article 127 of the Constitution, the Constitutional Court shall review the challenges to final decisions made by central governmental authorities, local governmental authorities and local self-governmental bodies in cases concerning violations of fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court.

Article 130(1) of the Constitution provides, inter alia , that the Constitutional Court shall commence proceedings upon a proposal submitted by a) no less than one fifth of all members of the National Council of the Slovak Republic; b) the President of the Slovak Republic; c) the Government of the Slovak Republic; d) a court; e) the Prosecutor General; f) any person whose rights shall be adjudicated pursuant to Article 127. In accordance with paragraph 3, the Constitutional Court may commence proceedings upon a “ podnet ” submitted by legal entities or individuals claiming a violation of their rights.

Proceedings before the Constitutional Court are governed in more detail by the Constitutional Court Act of 1993. Section 18(1), as in force until 22 December 1995, contained the same provisions as Article 130(1) of the Constitution. As of the aforesaid date section 18(1)(d) has been amended in that a court may only bring proceedings before the Constitutional Court in the context of its decision-making activities.

COMPLAINTS

1. The applicant alleges that his right to freedom of expression as guaranteed by Article 10 of the Convention was violated for the following reasons.

He first considers that the interference with his freedom of expression was disproportionate to the legitimate aim pursued as he was sanctioned for criticism of a member of the Government in respect of whom the limits of acceptable criticism should be wider than in respect of a private individual. In his view Slovak law does not adequately define what is defamation in that it does not distinguish between value judgments and facts, and between public officials and private persons. He considers that he could not reasonably foresee that he could be held liable for the publication of his poem and statement.

He further alleges that the statement represented a value judgment which he formulated after he had learned, through the media, that D. S. had been a member of the Hlinka Youth and had participated in the course in Sekule . He considers the Supreme Court’s opinion, according to which his statement could be considered as a value judgment only if he had simultaneously referred to the facts on which it was based, to be too restrictive and erroneous.

The applicant alleges that the burden of proof imposed upon him in conformity with the domestic practice is unlawful and violates his right to freedom of expression. In this regard he complains, in particular, that ( i ) the Supreme Court denied him the means of proving the truthfulness of his allegations by distorting what constitutes a fascist past, or, in the alternative, unlawfully denied him a reasonable margin of error for making statements about a member of the Government which were not devoid of foundation or good faith, (ii) he was required to prove the truthfulness of his opinion in his statement even though statements of opinion are not susceptible to proof, and (iii) he was under the obligation to prove the truthfulness of passages in his poem although poetic expression - like an opinion - is not susceptible to proof.

2. The applicant further considers that his right to remain silent and the right to freedom of thought were violated in that he was ordered to make an apology. He invokes Articles 9 and 10 of the Convention.

3. Under Article 14 of the Convention the applicant complains that the Supreme Court discriminated against him on the basis of his political opinion in that it placed an unreasonable burden of proof on him, distorted the definition of “fascist”, and in that it ordered the applicant to make an apology.

4. Finally, he complains under Article 13 of the Convention that he did not have an effective remedy because the Court of Cassation failed to dismiss D. S.’s suit.

PROCEDURE

The application was introduced on 11 September 1995 and registered on 31 October 1995.

On 11 April 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 26 June 1996. The applicant replied on 13 September 1996 and supplemented his submissions on 20 October 1996.

The Government’s further written observations were submitted on 3 January and 20 May 1997 and 7 September 1998. The applicant replied on 24 February and 31 July 1997 and 23 June and 14 September 1998 .

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant alleges a violation of his right to freedom of expression as guaranteed by Article 10 of the Convention, which reads:

“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.”

By way of preliminary objection, the Government submit that the applicant did not comply with the rule, in Article 35 § 1 (former Article 26) of the Convention, that applications to the Court (formerly to the Commission) can be lodged only after all domestic remedies have been exhausted. The Government observe that he could have, after the part of the judgment of the Supreme Court of 23 March 1994 (i.e. according to which D. S. was entitled to arrange for publication of the text set out in the aforesaid judgment as regards the applicant’s statement “For a better image of Slovakia - without a minister with a fascist past”) became final, filed a “ podnet ” to the Constitutional Court under Article 130(3) of the Constitution and claimed a violation of his right of freedom to expression guaranteed by Article 26 of the Constitution and/or Article 10 of the Convention. In this regard the Government refer to the Constitutional Court’s judgment upon a “ podnet ” filed a petitioner challenging a violation of Article 26 of the Convention and 10 of the Convention seeking a decision of the Constitutional Court finding a violation in that the petitioner, who had participated in the public hearing in a civil case held at the Supreme Court, was prohibited from recording the hearing. The Constitutional Court, having considered the matter in the light of these provisions, found a violation of the petitioner’s rights guaranteed by them.

The Government further maintain that the applicant was not obliged to pay pecuniary damages. He only had to endure the publication of the apology. They submit that an effective remedy in the applicant’s case is the remedy which provides for rectification of the same kind as the interference with his freedom of expression. In this regard, the Constitutional Court’s finding of a violation would have been of the same substance and form as an interference with the applicant’s freedom of expression, since the Constitutional Court’s decisions are published.  Moreover, that finding of a violation would be the ground for a retrial.

As regards the merits, the Government admit that the part of the Supreme Court’s judgment 23 March 1994 under which D. S. was entitled to the publication of the text set out in this judgment constitutes an interference with the exercise of the applicant’s freedom of expression guaranteed by Article 10 § 1 of the Convention. They maintain, however, that the interference was “prescribed by law”, namely by Articles 11 and 13 of the Civil Code and pursued a legitimate aim - “the protection of the reputation or rights of others” referred to in Article 10 § 2 of the Convention. The Government further argue that the interference was “necessary in a democratic society”. In their view, the interference with the applicant’s freedom of expression was adequate to the legitimate aim which an interference intended to achieve, and also to the weight of the applicant’s statement concerning D. S. as it was published and analysed in the newspapers and magazines in Slovakia and abroad. The reasons for such interference are, in their opinion, relevant and sufficient, because labelling a politician as a person with a fascist past can have a grave impact on the reputation of the person in question.

The Government submit that the applicant made his statement shortly after the parliamentary elections of 1992 and after D. S. became the Minister for Culture and Education. He knew all the facts about D. S.’s past long before the elections, from the latter’s book “Paragraph: Polar Circle”. Apart from the statement about D. S.’s alleged fascist past, the applicant did not mention any other facts relating to the latter’s age in 1945 (17 years), the reasons for his participation in the terrorist course, his dismissal from the course, his later conviction and eight-year incarceration in a Russian camp, and finally the decision of the Supreme Court of the USSR of 1960 by which the prosecution against him was dismissed because of the Supreme Court’s finding that no crime had been committed by him. In addition, making a comparison of D. S.’s conduct and the fascist history was not based on a bona fide evaluation by the applicant, and was not based on precise or correct facts.

The Government consider that the qualification of the applicant’s statement as a fact rather than a value judgment is related to the proof of truth. The existence of facts can be proved. Therefore, if the statement was qualified as a “fact”, a proof of truth was admissible and necessary. The applicant, however, failed to provide a proof of truth in relation to D. S.’s fascist background, and unreasonably damaged his reputation. The Government disagree with the applicant that “... in making a value judgment, it is not necessary to show circumstantial facts from which the judging person drew the conclusion, and it need not be mentioned that this is merely the opinion of the person making the judgment ...”

The Government add that the national courts did not require the applicant to publish an apology in a newspaper; they enabled D. S. to exercise his right and publish the declaration of defamatory character of the applicant’s statement in five newspapers at the cost of the applicant who was, therefore, only required to endure the exercise of D. S.’s right. In this connection, the Government note that the latter published the declaration only in one newspaper without claiming the reimbursement of the costs of publication from the applicant.

The applicant first submits that the requirement to exhaust domestic remedies apply to those which are adequate and effective for correcting unlawful conduct, omission or decision of a court. He recalls that according to Article 127 of the Constitution, the Constitutional Court shall review the challenges to final administrative decisions in cases concerning violations of fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court. Article 130(3) of the Constitution makes it clear that the Constitutional Court may start proceedings also on the basis of a “ podnet ” lodged by legal or natural persons alleging violations of their rights. In this regard the case cannot be handled by means of a constitutional appeal for which the Constitutional Court has compulsory jurisdiction. The Constitutional Court does not have jurisdiction to hear a “ podnet ” brought against final decisions of ordinary courts, having a discretion to decide whether it will consider a “ podnet ” or not. Moreover, the proceedings do not start as from the day on which a “ podnet ” is received, being opened only after the “ podnet ” is declared admissible. The applicant further submits that even if the Constitutional Court found that a specific constitutional right or freedom had been violated in the proceedings before the general courts or in a decision thereof, it could only decide that the violation occurred. It is not empowered to quash or modify the general courts’ decisions or to take a new decision on the merits.

As to the merits, the applicant considers that the final part of the judgment of 23 March 1994 constitutes an interference with his freedom of expression under Article 10 § 1 of the Convention. He argues that this interference was not “necessary in the democratic society” because ( i ) the Government place the burden of proof on him, without distinguishing between facts and value judgments , (ii) there must exist a principle of proportionality between the restriction of freedom of expression and the objective set out in Article 10 § 2 of the Convention. In this regards he notes that a free political debate is the core concept of a democratic society, that the discussions about political issues deserve a greater protection than non-political discussions and that, consequently, the State has very narrow margins for restricting such expression and that the limits of permitted criticism of political figures and public officers are broader than those of the criticism of private persons. The use of crude expressions should be liable to a sanction only if the statements made are not proportionate to the legitimate objective of criticism. The applicant alleges that his value judgment on D. S.’s fascist background, based on facts, pursued a legitimate objective, i.e. to show that if there is even a shadow of suspicion, the person concerned should not hold any political position.

As regards the value judgment issue, the applicant points out that, by its judgment of 25 May 1995, the Court of Cassation expressed an opinion that a value judgment could be invoked only if the applicant’s reference to D.S.’s membership in the Hlinka Youth and to his participation in the SS training course was based on the applicant’s belief that the activities in question represented a fascist background. The applicant considers such treatment of the value judgment issue to be incompatible with the Strasbourg case-law because, in making a value judgment, a person does not need to state immediately on which facts the opinion he presents is based, and neither does he need to state that this is only his or her personal opinion.

The applicant contends that his freedom of expression was not restricted in accordance with sufficiently foreseeable national law. He stresses that any infringement of the freedom of expression, based on a law (Article 11 of the Civil Code and Article 200i of the Code of Civil Procedure) which is incompatible with the case-law of the European Court, is unacceptable. The foreseeability of this restriction could also be questioned, because the applicant justifiably believed that, in connection with fair comment and burden of proof, national courts will proceed in compliance with the Convention and its case-law.

The applicant disagrees with the Government’s argument that his statement of 29 July 1992 was a cover-up of personal and political struggle. Neither in 1992 nor during the following years was the applicant politically active. His statement about a fascist past of D. S. was based on facts contained in D. S.’s book. He submits that, in compliance with Article 10 of the Convention, he had the right to give his value judgment concerning the past of D. S. who became at that time Minister for Culture and Education. He deemed it necessary to express his opinion to the public who have the right to be informed about the past of a public person. He maintains that he did not act in bad faith, making the statement concerning D. S.’s fascist past on the basis of indisputable facts concerning his membership in the Hlinka Youth, participation in a terrorist course in Sekule , and his signing a commitment to co-operate with German secret service, because the applicant believes that such facts justify using the term of fascist past. His statement constituted a value judgment and the Court of Cassation , by requesting the applicant to furnish the proof of truth of such statement, violated his freedom of expression within the meaning of Article 10 of the Convention.

As to the Government’s preliminary objection, the Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, § 48).

Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia , the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 22, § 45).

Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.

The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of the machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see the Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210-1211, §§ 65-68).

In the instant case, the Court first notes that the proceedings pursuant to Article 130(3) of the Constitution are considered as being instituted only if the Constitutional Court, after a preliminary examination of the “ podnet ”, decides to admit it. Thus, although the person concerned can lodge a “ podnet ” directly to the Constitutional Court, the formal institution of proceedings depends on the latter’s decision.

Secondly, the Court considers that even a decision of the Constitutional Court finding a violation of Article 26 of the Constitution would have been published in the Official Gazette, this would not fully remedy the criticised state of affairs as the Constitutional Court lacks jurisdiction to quash the ordinary courts’ decisions and to decide of any claim for non-pecuniary damages.

Thirdly, as to the Government’s argument that the decision of the Constitutional Court would be the ground for a retrial, the Court notes that the Constitutional Court’s finding of a violation of the applicant’s rights would not give rise to a retrial directly, the applicant being obliged to lodge an application for a retrial with a competent judicial authority.

In the light of the foregoing, the Court does not consider that a “ podnet ” pursuant to Article 130(3) of the Constitution could have been regarded with a sufficient degree of certainty as an effective remedy in the applicant’s case. Accordingly, the Government’s objection relating to non-exhaustion of domestic remedies cannot be upheld.

As to the merits of the complaint, the Court considers that this part of the application cannot be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

2. The applicant further complaints that his right to freedom of thought guaranteed by Article 9 of the Convention was violated in that he was ordered to make an apology. He also complains under Article 14 of the Convention that the Court of Cassation discriminated against him on the basis of his political opinion in that it placed an unreasonable burden of proof on him, distorted the definition of “fascist”, and in that it ordered him to make public apology.

The Court considers that these complaints are closely linked to the complaint under Article 10 of the Convention and based on the same facts. They cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court notes that no other ground for declaring these complaints inadmissible has been established.

3. Finally, the applicant complains under Article 13 of the Convention that he did not have an effective remedy because the Court of Cassation failed to dismiss D. S.’s suit.

The Court recalls that an applicant who claims that his rights guaranteed by the Convention have been violated, must have an effective remedy before a national authority for that claim. The word “remedy” in this sense does not mean that the applicant's claim must be vindicated and that the applicant must “win”. The applicant must have an opportunity for his claim to be examined by a national authority conforming to the requirements of Article 13, which is able to examine the merits of his complaint.

In the present case, the Court notes that the applicant disposed of all domestic remedies available to him in the civil procedure to which he was a party, and, apart from the “ podnet ” before the Constitutional Court, he made use of them. There is no appearance that the national courts did not comply with procedural rules or proceeded with the applicant’s case arbitrarily in any way.

It follows that this part of the application must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES INADMISSIBLE the complaint under Article 13 of the Convention;

DECLARES ADMISSIBLE, without prejudging the merits, the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President

[1] the former communist secret police