Information Note on the Court’s case-law 241

June 2020

Miljević v. Croatia - 68317/13

Judgment 25.6.2020 [Section I]

Article 10

Article 10-1

Freedom of expression

Conviction for defamation on account of statements made in the context of defence in another set of criminal proceedings and accusing a third party of witness tampering: violation

Facts – During his trial for war crimes, the applicant made statements in his defence, accusing I.P., a third party not participating in the proceedings, of instigating his prosecution, witness tampering and leading a criminal enterprise aimed at his conviction. The applicant was acquitted of war crimes, but later convicted in criminal defamation proceedings taken against him by I.P. on account of the impugned statements.

Law – Article 10

(a) Existence of an interference – Having regard to the fact that the applicant had specifically complained about his criminal conviction for defamation of I.P., and that the domestic courts had considered the case from the perspective of an attack on I.P.’s honour and reputation, the Court addressed the applicant’s conviction for defamation as an interference with his freedom of expression, having in mind the implications of his right to defend himself effectively in criminal proceedings.

(b) Whether the interference was prescribed by law and pursued a legitimate aim – The interference had been prescribed by law and had pursued the legitimate aims of the protection of the reputation or rights of others and the maintenance of the authority and impartiality of the judiciary.

(c) Necessary in a democratic society – The applicant had accused I.P. of witness tampering, punishable under domestic law, which had been clearly capable of tarnishing I.P.’s reputation and causing him prejudice in his social environment, particularly given his status as a military officer and a disabled war veteran. Moreover, I.P. had felt seriously affected by the statements made. Accordingly, the applicant’s accusations had attained the requisite level of seriousness which could harm I.P.’s rights under Article 8. The Court had therefore to verify whether the domestic authorities had struck a fair balance between the applicant’s freedom of expression and I.P.’s right to respect for his reputation. In the present case, however, the applicant’s right to freedom of expression under Article 10 as an accused in criminal proceedings had also to be understood in the light of his right to a fair trial under Article 6. In such cases the margin of appreciation afforded to the domestic authorities under Article 10 ought to be narrower.

In particular, having regard to an accused’s right to freedom of expression and the public interest involved in the proper administration of criminal justice, priority should be given to allowing the accused to speak freely without fear of being sued for defamation whenever his or her speech concerned the statements and arguments made in connection with his or her defence. On the other hand, the more an accused’s statements were extraneous to the case and his or her defence, and included irrelevant or gratuitous attacks on a participant in the proceedings or any third party, the more it became legitimate to limit his or her freedom of expression by having regard to the third party’s rights under Article 8. An accused’s statements and arguments were protected in so far as they did not amount to malicious accusations against a participant in the proceedings or any third party. The defendant’s freedom of expression existed to the extent that he or she did not make statements that intentionally gave rise to false suspicions of punishable behaviour concerning a participant in the proceedings or any third party). In practice, when making that assessment, the Court found it important to examine in particular the seriousness or gravity of the consequences for the person concerned by those statements The more severe the consequences were, the more solid the factual basis for the statements made had to be.

(i) The nature and context of the impugned statements – Although I.P. had not acted in any official capacity in the criminal proceedings against the applicant, nor had he assumed any formal role in those proceedings, he had attended the public hearings in the applicant’s case. Moreover, I.P. was a well-known public figure and activist as regards the discovery of crimes committed during the war. In that capacity, he had advised the editors of the television show, and some of the witnesses in the applicant’s case had got in touch with him. Thus, he had entered the public scene in that field of social interest, and had therefore been in principle required to display a wider level of tolerance to acceptable criticism than another private individual.

The applicant’s impugned statements had been made in his closing arguments to the trial court. They had concerned defence arguments which had been sufficiently linked to the applicant’s case and worked in favour of his defence. If the applicant had succeeded in convincing the trial court of his arguments, this would have seriously called into question the credibility and reliability of the witness evidence and the overall nature and background of the prosecution’s case.

As a matter of principle, the defendant had to have an opportunity to speak freely about his impression of a possible witness tampering and the improper motivation of the prosecution case without the fear of being later sued for defamation. In the present case, the applicant’s statements had indeed concerned his impressions relating to I.P.’s behaviour. It was of little relevance that I.P. himself had not been heard as a witness in the criminal proceedings against the applicant.

In view of the above, the impugned statements had had a sufficiently relevant bearing on the applicant’s defence and thus had deserved a heightened level of protection under the Convention.

(ii) The consequences for I.P. and the factual basis for the statements – In the defamation proceedings, the domestic courts had approached the applicant’s allegations against I.P. as statements of fact and found that they had lacked sufficient basis and thus had amounted to a gratuitous and unsubstantiated attack. However, they had failed to appreciate sufficiently the fact that the applicant had seen I.P. attending the hearings in his case and that I.P. himself had accepted that he had met some of the witnesses. Moreover, they had failed to take into account the prominent activities of I.P. in that field and his engagement in the television show, although without direct involvement in the broadcast concerning the applicant. Thus, it could not be said that the impugned statements had lacked any factual basis for the applicant’s arguments relating to I.P.’s involvement in his case. Taking also into consideration the context in which those statements had been made, namely as defence arguments during a criminal trial, although they had been excessive, they had not amounted to malicious accusations against I.P. Finally, the applicant’s statements had objectively caused limited consequences for I.P, in particular because domestic authorities had never investigated I.P. for the criminal offence of witness tampering. Moreover, even accepting that I.P. had sought medical help in connection with the distress caused by the applicant’s statements, there had been no conclusive evidence that he had suffered, or could have objectively suffered, any profound or long-lasting health or other consequences.

(iii) Severity of the sanction imposed – Although the applicant had been ordered to pay the minimum fine possible under the relevant domestic law, that sanction had nevertheless amounted to criminal conviction.

(iv) Conclusion – The domestic courts had not struck a fair balance between the applicant’s freedom of expression as understood in the context of his right to defend himself, on the one hand, and I.P.’s interest in the protection of his reputation on the other. The domestic authorities had failed to take into consideration the heightened level of protection that the statements given by the defendant had deserved as part of his defence during a criminal trial.

Conclusion : violation (unanimously).

Article 41: EUR 2,281 for pecuniary damage; finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage

(See also Pfeifer v. Austria , 12556/03, 15 November 2007, Information Note 102 ; Erkapić v. Croatia , 51198/08, 25 April 2013, Information Note 162 ; Zdravko Stanev v. Bulgaria (no. 2) , 18312/08 , 12 July 2016; and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], 17224/11, 27 juin 2017, Information Note 208 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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