Communicated on 18 December 2014

THIRD SECTION

Application no. 29389/12 PETIT PRESS, A.S . against Slovakia lodged on 11 May 2012

STATEMENT OF FACTS

1. The applicant, Petit Press, a.s . (“the applicant company”) , is a joint ‑ stock company established under the laws of Slovakia in 2000, with its head office in Bratislava.

The applicant company is r epresented before the Court by DEDÁK & Partners, s.r.o . , a law firm with its registered office in Bratislava .

The circumstances of the case

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

1. Background

3. The applicant company is a publishing house. Among others, it publishes a national daily newspaper A. The present case concerns an article published in A., mainly concerning two individuals, B. and his son C.

4. In 1989-90 B . was a Minister and Deputy Prime Minister of the Czechoslovak Socialist Republic . In the subsequent period he acted as advisor to the Minister of Finances of the Slovak Republic and eventually became a prominent businessman.

5. In the early 1990s, C . was the Head of the Office of the Government of Slovakia. Later he held the office of the Deputy Minister of Privatisation of the National Property of Slovakia and then of the Director of the Slovak Intelligence Service, following which he was elected Member of the Slovak Parliament.

6. Subsequently, C . was charged with a number of offences , detained on remand, left the country upon his release, and his whereabouts became unknown.

7. On 14 July 2002 C. was arrested in the South Africa n Republic on an international warrant and he was subsequently extradited to Slovakia to face his trials , none of which has h owever ended with a conviction .

These matters received wide media coverage in Slovakia.

2. Article

8. On 23 September 2002 an article was published in A. under the title “Millionaires ’ clan of [the family of B. and C.]”.

The article contained a number of photographs depicting various business and private properties with a description, a suggestion that B. and C. had links to them, and with comments about their lifestyle and profit from those properties. One of the photographs depicted C. jumping in water and suggested that it had been taken at his cottage by a lake while he had been on a sick leave from the Parliament.

9. The text of the article as such is divided in two sections. The first section has the heading “Skilful father [the first name of B.]” and reads as follows:

“The family [of B. and C.] started doing business shortly after the revolution. [B.] was a member of the last Government prior to the November [of 1989], as well as of the first Government of the Slovak Republic after the November. When he retired from active politics in summer 1990, he acted as advisor to the then Minister of Finances [name], but he also provided consultancy services to a foreign private company. After a change of the Minister, he – then already equipped with contacts – started doing business full throttle.

[B.] did his first successful big ‘ deal ’ in 1992, when he acquired a State ‑ owned enterprise [operating a mill]. Although the value of this mill was estimated at more than one billion Korunas, the former Member of the Government with four partners was given it by the State for approximately three hundred millions Korunas. Shortly thereafter the group came to control [another mill], which it allegedly acquired by coercing the previous owners. They were thought to have signed a deed under pressure to the effect that they withdrew from a contract with the [agency for denationalisation of State property].

According to [the name of a former Minister of Finances], these mills made profit especially thanks to special treatment by the [agency for denationalisation of State property] and ministries. While [B.] bought crops from the State at 3,600 Korunas per ton, others on the free market paid 5,000. It was the beginning of a promising business career of [B.], who secured his family a more than interesting financial start into the world of business.

Today the former politician [B.] and [another son of his] sit on boards of directors and supervisory boards of several enterprises, the registered capital of which usually exceeds several million Korunas. It is said that they allegedly made profit also then, when their family member [C.] was the Deputy Minister of Privatisation .”

10. The second section of the article has the title “Do they have billions?” and opens with a list of companies, which are termed “the most interesting”, on the boards of which B. and the other of his sons sit. It further contains quotations of various statements of B. concerning his family ’ s success and fortune, a reference to the means on which C. lived in the South African Republic, and a quotation of his statement in that respect.

3. Libel action

11. On 18 March 2003 B. sued the applicant company for libel. He argued that the article was a follow up to a piece published in A. on 5 August 2002 and that it contained a number of untrue and deceitful elements of personal nature, which were not aimed at informing the public, but at provoking its resentment.

Among other elements, he submitted also that, as an individual, he was not the owner of any business and that he had taken part in the denationalisation exclusively as a shareholder of legal entities and in accordance with the applicable laws. He also stated that, between November 1998 and December 2000, the name of C. had appeared in 950 articles published in A., of which 45 also referred to B.

12. In terms of redress, B. sought orders for publication of an apology and for payment of the equivalent of some 24,000 euros (EUR) by way of damages.

13. In its defence, and in its subsequent appeal (see below), the applicant company relied on its freedom of press and submitted that A. was not a legal journal but a popular paper, in which some level of generalisation was appropriate. This was so in particular as regards the distinction between B. as an individual and the legal entities in which he was the controlling shareholder. In sum, according to the applicant, no part of the information in the article was untrue or misleading.

The article was based on information generally known at the time of its publication, the findings of the applicant company ’ s reporters, and - in so far as it drew on information previously published - also on the fact that such information had not been contested.

In addition, the suggestion in the article concerning the special treatment received by B. in acquiring crops at a preferential price was based on statements published previously in a newspaper article by a former minister, which the applicant company had not been required independently to verify . In that regard, the applicant company referred to earlier judicial decisions in another trial. Nevertheless, as regards that suggestion, the applicant company submitted that the evidence at hand rather showed that the market prices had been higher than those at which the State had been selling and that there had been no public tenders for to whom the State would sell.

Moreover, the applicant company objected that it was not necessary in a democratic society to allow the action, in particular because it was legitimate for the public to be informed about how the State disposes of its property, especially when that property is being transferred to legal entities owned by individuals who had been in important political and governmental functions.

In the applicant company ’ s submission, the article concerned matters of public interest also due to the fact that, shortly after his arrest and extradition, the subsistence of C. in the South African Republic had been a current issue.

14. The action was examined at first instance by the Bratislava I District Court ( Oresn ý súd ), which heard oral evidence from the parties, their lawyers and four witnesses , and examined various pieces of documentary evidence .

15. On 26 March 2009, the District Court ordered the applicant company to publish the apology and dismissed the remainder of the B. ’ s claim.

16. The relevant part of the ordered apology was to acknowledge that the following information in the article was untrue, misleading and injuring B. ’ s civic honour:

- that the first big ‘ deal ’ of B. had been done in 1992 when he with four partners had acquired the first mill worth one billion Korunas for three hundred millions (“the first proposition”);

- that the group had come to control the second mill through coercion (“the second proposition”); and

- that these mills had profited from a special treatment in that B. was sold crops by the State at 3,600 Korunas per ton, while others paid 5,000 (“the third proposition”).

17. In that respect, the District Court found that B. had succeeded in showing that the article had interfered with his personal integrity within the meaning of Article 11 of the Civil Code (Law no. 40/1964 Coll., as amended) and that the applicant company had failed to show that the elements of the article mentioned in the ordered apology were true. It took into account that the article had been published in popular press, in which case a certain degree of simplification and lack of precision was permissible. However, it was important that the overall impression a piece of published information makes corresponded to the truth.

18. In particular, as regards the first proposition, the District Court referred to an expert evaluation of 1992, which had served as the basis for establishing the price for the mill in the process of its denationalisation, and concluded that the applicant company had failed to show that its value was one billion Korunas.

19. It likewise concluded that the applicant company had failed to establish the truthfulness of the second and third propositions. In addition, as regards the third proposition, the District Court held that although it contained a reference to statements of the given Minister in another paper, it could not be considered a quotation and the mentioning of the reference did not deprive the applicant company from the duty independently to verify the truthfulness of the information published, which it had failed to do.

20. As to the claim for compensation, the District Court found that B. had failed to show having suffered the damage he alleged.

21. Both parties appealed, the applicant company against the ruling on the apology and B. against the ruling concerning damages. The appeals fell to be determined by the Bratislava Regional Court ( Krajský súd ), which again held a hearing and gave its judgment 14 April 2011. In it, it made some adjustments in the apology to be published and overturned the ruling on damages, ordering the applicant company to pay B. EUR 7,000 in compensation for non-pecuniary damage, and to reimburse his legal costs.

22. In support of its rulings, the Regional Court held that, as regards the above-mentioned part of the apology, the District Court had properly established and evaluated the facts and it had properly interpreted and applied the relevant law. Conversely, it found that the applicant company had not submitted anything capable of disproving the findings of the District Court.

23. In addition to the findings of the first-instance court, the Regional Court observed that, as to the context surrounding the arrest and extradition of C. , it had only been invoked as being subject of public concern at the given time at the appellate stage, but had not been referred to in the article itself. Moreover, the events and matters reported on dated ten years back, which was why there could not have been any urgency in reporting on them in the article.

24. It also noted that A. was one of the most widely read national daily newspapers and found that B. was not to be considered a public figure, in respect of whose privacy a higher degree of interference was acceptable, because he had retired from politics long before the events referred to in the article and before its publication.

25. Referring to test of proportionality, the Regional Court further held that the impugned information was not true, that the applicant had failed in its duty only to publish verified and accurate information, that untrue information could not provide a basis for justified criticism, and that it fell outside the purview of the right to freedom of expression.

4. Constitutional complaint

26 . On 31 August 2011 the applicant company challenged the Regional Court ’ s judgment before the Constitutional Court ( Ústavný súd ) by way of a complaint under Article 127 of the Constitution, alleging a violation of its rights of access to a court, to a fair trial, and to respect for its freedom of expression.

The applicant company pursued the same line of argument as specified above and emphasised, in particular, that the article concerned matters of public interest in that ( i ) it bore on the use of public funds, (ii) B. had been an active politician, (iii) his family belonged to one of the richest in the country, (iv) the subsistence of C. in the South African Republic at the given time had been an issue of the day.

In the applicant company ’ s submission, the courts had failed properly to examine the case with reference to the tests of legitimate aim and necessity, and had instead wrongfully limited themselves to examining no more than the truthfulness of the information published.

As regards those allegedly omitted tests, the applicant company submitted that it had proceeded with utmost diligence and without any mala fides .

Moreover, and in any event, the applicant company contested the ordinary courts ’ factual conclusions and submitted that they lacked a basis in the evidence taken and were not supported by adequate reasoning. In more specific terms, it contested as lacking objectivity the evidence relied on by B. which stemmed from witnesses who had links to him.

In addition, it contended that, as regards the second proposition, the ordinary courts had failed to take proper account of the qualifying language “alleged” and “were thought to have signed” and, as regards the third proposition, they had failed to explain why they did not consider it to be a quotation of the former minister identified in the article itself.

27 . On 19 October 2011 the Constitutional Court rejected the complaint essentially as manifestly ill-founded. It concluded that the contested judgment had constituted an interference with the applicant company ’ s right to freedom of expression , that it had been prescribed by law; and that the interference had pursu ed the legitimate aim of protecting the reputation and rights of B. , with the only open question being its proportionality.

28. In that respect, the Constitutional Court concurred with the ordinary courts ’ conclusion that, at the time of the publication of the article, B. could no longer be considered a public figure.

29. With regard to the nature of the information published, the Constitutional Court found that it was a mix of statements of fact and value judgments, the former being untrue, and the latter lacking the appropriate factual basis. In that respect, it acknowledged the journalists ’ right to simplification and even to some degree of imprecision. However, the published information had to be based on truthful elements.

30. All in all, the interference with the applicant company ’ s right to freedom of expression was found to have been necessary in a democratic society.

31. The applicant company ’ s complaint was examined by the same Chamber of the Constitutional Court as several others of its previous complaints over the precedent years. The President of that Chamber is the husband of a practicing lawyer representing claimants in several other libel actions against the applicant company.

32. No hearing was held before the Constitutional Court and the applicant company only learned of the composition of its Chamber, which had decided on the case, from the written version of the Constitutional Court ’ s decision, which was served on the applicant company on 11 November 2011. The decision was amenable to no appeal.

COMPLAINTS

33. The applicant company complains under Articles 6 § 1 and 10 of the Convention that:

- the decisions of the domestic courts lack proper reasoning, the courts ’ conclusions do not stem from their factual findings, and the decisions are in general arbitrary;

- although cases before the Constitutional Court are to be assigned to its various Chambers by a random choice, there has been no automated tool for it, and it is implausible that it was a coincidence that the present and many other cases were assigned to the same Chamber, the President of which is closely related to a lawyer representing claimants in libel actions against the applicant company;

- in the assessment of the status of B. and the context of the article the courts failed to appreciate that he used to be an active politician, that he was a businessm a n actively involved in the affairs of large public companies , that he had an immense fortune, that he had been involved in denationalisation of State-owned property, that the article concerned matters linked to the use of public moneys, that it also concerned the publically notorious person of C.; that it had immediately followed the current topic of C. ’ s arrest, extradition, and his previous livelihood; and that at the given time these matters had been subject to wide media coverage anyway;

- the courts failed to appreciate that the third proposition was a mere citation of a previous minister of finances, which the applicant company was under no duty independently to verify, and

- the courts wrongfully focused on the truthfulness of the published information, took no account of the applicant company ’ s bona fides , and unjustly favoured the protection of privacy of B. to disadvantage of the applicant company ’ s freedom of expression.

QUESTIONS TO THE PARTIES

1. Having regard to the applicant company ’ s claim that, contrary to the applicable rules, its constitutional complaint was not assigned to a Chamber of the Constitutional Court by a random choice, w as the tribunal which dealt with the applicant company ’ s constitutional complaint “established by law”, as required by Article 6 § 1 of the Convention?

2 . Has there been a violation of the applicant company ’ s right to freedom of expression, in particular its right to impart information, contrary to Article 10 of the Convention?

In particular, to what extent are the duties and responsibilities inherent in the applicant company ’ s activities relevant to its claim and the State ’ s margin of appreciation in this field?