Communicated on 28 January 2021 Published on 15 Febr uary 2021

SECOND SECTION

Application no. 24919/20 Mindaugas MARCINKEVIÄŒIUS against Lithuania lodged on 23 June 2020

SUBJECT MATTER OF THE CASE

The applicant is a major shareholder in “ Vilniaus Prekyba ” , one of the largest retail companies in the Baltic region. On an unspecified date he asked the authorities to open a pre-trial investigation against N.N., another major shareholder, on allegations of large-scale tax evasion and misappropriation of corporate funds. The proceedings attracted considerable media attention, and both the applicant and N.N. publicly made critical statements about one another.

On 2 January 2017, while the aforementioned investigation was ongoing, a popular news website Delfi.lt published an article entitled The fight between the rich of Lithuania continues: clashing for earned millions , which discussed the investigation and quoted the applicant, N.N. and several other individuals. The applicant made, inter alia , the following statements:

“The opinion expressed a year ago about the schemes carried out in [the company] has only grown stronger. Having obtained previously hidden information through legal means, we are beginning to understand why economically unjustified deals were concluded and who was responsible for them. We have submitted documents to the court, demonstrating that companies belonging to [Vilniaus Prekyba ] were allegedly used for transferring shareholders ’ money to [N.N. ’ s] personal accounts, thereby avoiding the payment of taxes in Lithuania and appropriating other shareholders ’ funds ...

... ‘ One of the companies used in such operations was [T.] ... through which, after complicated deals, more than twenty million euros of shareholders ’ funds were allegedly laundered and at least three million euros in taxes hidden from the Lithuanian budget, ’ commented [the applicant] ...

... In my opinion, the main goal was to appropriate the profit of [the company] without paying taxes in Lithuania. It is obvious that not only we [the shareholders] but also the Lithuanian State sustained huge damage. We addressed the company, spoke about it in shareholders ’ meetings, and later addressed the prosecutor ’ s office ...”

N.N. lodged a civil claim against the applicant, accusing him of making false and defamatory claims. He complained about the following three statements in particular:

(1) “Companies belonging to [Vilniaus Prekyba ] were allegedly used for transferring shareholders ’ money to [N.N. ’ s] personal accounts, thereby avoiding the payment of taxes in Lithuania and appropriating other shareholders ’ funds”;

(2) “One of the companies used in such operations was [T.] ... through which, after complicated deals, more than twenty million euros of shareholders ’ funds were allegedly laundered and at least three million euros in taxes hidden from the Lithuanian budget”;

(3) “The main goal was to appropriate the profit of [the company] without paying taxes in Lithuania. It is obvious that not only we [the shareholders] but also the Lithuanian State sustained huge damage”.

The courts allowed N.N. ’ s claim in part. They held that the first two of the impugned statements, when read in the context of the entire publication, as well as in the context of the ongoing investigation and the public conflict between the applicant and N.N., had to be seen as value judgments. They had been presented as the applicant ’ s allegations or doubts, which had had some factual basis, and their language had not been insulting; N.N., who was a public figure, had to accept a higher level of criticism.

The same conclusion was reached with regard to the first sentence of the last statement. However, the courts held that its second sentence (“It is obvious that not only we [the shareholders] but also the Lithuanian State sustained huge damage”) had to be read differently. That phrase had been formulated as a statement of fact, i.e. that damage had been caused and that its existence had been “obvious”, despite there not being any proof of such damage. The courts concluded that the applicant had made a false statement and had thereby damaged N.N. ’ s reputation. He was ordered to publicly retract the offending words.

The applicant complains under Article 10 of the Convention that he has been ordered to retract his personal opinion . He submits that that opinion had sufficient factual basis and was not expressed in a gratuitous or insulting manner. He also submits that the domestic courts acknowledged that his other statements had had sufficient factual basis. He argues that the courts failed to assess the impugned phrase in its context.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the characterisation of the statement made by the applicant as a statement of fact, rather than a value judgment, justified (see Morice v. France [GC], no. 29369/10, §§ 126 and 155, ECHR 2015, and the cases cited therein)?