THIRD SECTION

Application no. 21666/09 RINGIER AXEL SPRINGER SLOVAKIA, A.S. against Slovakia lodged on 14 April 2009

STATEMENT OF FACTS

1. The applicant, Ringier Axel Springer Slovakia, a. s. (“the applicant company”), is a joint-stock company established under the laws of Slovakia in 1999 with its head office in Bratislava . At the time of the introduction of the application, the applicant company was called RINGIER SLOVAKIA a.s .

The applicant company is represented by Mr J. Havlát , a lawyer practising in Bratislava .

A. The circumstances of the case

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

1. The applicant company

2. The applicant company is a multimedia publishing house. Its legal predecessor in respect of the events giving rise t o the present application was a limited-liability company established under the laws of Slovakia in 1994 and had its seat in Bratislava . The latter company was the publisher of a popular national daily newspaper.

3. In the course of the proceedings described below, in 2004, the applicant company ’ s legal predecessor was merged with the applicant company. Hereinafter “the applicant company” includes the applicant company ’ s legal predecessor.

2. Accident

4. In the evening of an unspecified day in 2001 an accident happened on a car park in the town of Svidník . It involved a collision between a car, driven by A., and a pedestrian, B.

5. Short l y after the accident, B. succumbed to his injuries and A. was arrested and detained on remand on charges related to the accident.

6. B. ’ s father, C., was a prosecutor with the Svidník District Office of the Public Prosecution Service (“the PPS”).

7. Following the accident, a reporter with the daily, D., contacted C. and asked him for a position. C. gave him a short statement.

3. Published article

8. On 24 October 2001 the applicant company published an article, written by D., in the above-mentioned paper concerning the accident. The title of the article was:

“The [PPS] and courts violate human rights of a driver who is being prosecuted for running over a son of a district prosecutor of Svidník .

The article also had a subtitle reading:

“The investigation file travels around the region like a hot potato”.

9. The article described the accident and referred to B. and C. by full name, while A. was referred to by his first name and the initial of his surname.

10. The article contained, inter alia , the following passages:

“ ... The case in the Northeast Slovakia has become the centre of an unprecedented merry-go-round of pushing the files around from the [PPS] to the courts and back.

...

‘ My wife I, we have lost the meaning of life ’ , said in a short interview for our daily the district prosecutor [C.], devastated by the loss of his son.

... .

[A.] has been charged by an investigator and remanded in detention by a judge of the Svidník District Court. If his guilt is established, he risks being jailed for up to five years.

After one month the defence lawyer for A. requested his release on bail. Then the transferring of the file from one institution to another started. From the regional prosecutor to the Prešov District Court, and from there to Svidník and back to the prosecutor. The judges of the Svidník District Court pronounced themselves biased and the case was transferred to the Prešov Regional Court . The latter assigned it to the Prešov District Court last Thursday.

We are not advocating for the release of the accused from detention, but we point out the disproportionately long period of the determination of the request.

Towards the end of the last week our daily notified the suspicion of a human-rights violation to the Minister of Justice. On the basis of a written reply of the Minister we conclude that none of his co-workers has obtained detailed information about the case. The Minister [name] has also been addressed by the girlfriend of [A.]. ‘ I have not received any answer from the Minister, not even a few lines ’ , told the young lady to our daily. ‘ Only after the [daily] started taking interest in the case have I received an answer from the Justice Ministry to turn to the Office of the Prosecutor General ’ , added the young lady.

When examining complaints, the European Court of Human Rights emphasises that in dealing with requests for release from pre-trial detention the courts must act promptly. It is known that in similar cases a period of several months is considered by Strasbourg to be a violation of the citizen ’ s rights.”

4. Libel action

11. At an unspecified date, presumably in 2003, C. sued the applicant company for libel. He submitted that, more than two months after the death of B., at a time when he and his wife had slowly been recovering from the tragedy, he had been visited at home by D. The latter asked C. and his wife for their position. C. had been unable to speak and had limited himself to three sentences. There had been no talk of disclosing the full names of B. and C. H e considered the affair to be a highly private matter. Moreover, after the publishing of the article, acquaintances of C., who had not been informed of the tragedy, had started calling C. with condolences and had thus been reopening an old wound.

12. In terms of relief, C. sought an order for the publication of an apology, specifically for the disclosure of the full names of B. and his own, and the equivalent of some 4,800 euros (EUR) by way of damages.

13. In defence, the applicant company submitted that the aim of the article had been to criticise the actions of the courts and the PPS in the Prešov region constituting a violation of the human rights of A.

14. When questioned as a witness, D. submitted that the article was not aimed against C., although he had originally wanted to suggest in the article that the state of affairs might have been indirectly influenced by C. As C. was a lawyer and had a university degree, D. had presumed that the question of disclosing the full names was clear and pointed out that neither in the short interview nor after it and before the publication of the article had C. presented any objections in that respect. As C. was a public official, in the opinion of D. he had to accept a higher degree of interference with his personal integrity. In the view of D., it was common for the daily to write about public officials and their children and to indicate their full names without receiving any complaints.

15. On 2 February 2005 the Prešov District Court ( Okresný súd ) granted the action by ordering apology and a payment of the equivalent of some EUR 2,600 in damages. The remainder of the claim for damages was dismissed.

16. The District Court acknowledged that C. was a public official and that, as such, he had to accept a higher degree of interference with his privacy. However, the accident had no link to his public functions and was therefore exempted from that rule.

17. On 17 January 2007, following the applicant company ’ s appeal ( odvolanie ), the Prešov Regional Court ( Krajský súd ) upheld the District Court ’ s judgment in so far as the order for an apology was concerned. At the same time, it overturned the contest judgment as to the order for the payment of damages.

18. The Regional Court concurred with the District Court ’ s conclusions as to the pivotal point of the case, that is to say the question of interference with the claimant ’ s personal integrity. It took for established that the aim of the article had been to point out a violation of human rights of A.

However, as the full names of B. and C. were disclosed without an authorisation, there had been an interference with their personal integrity.

The Regional Court also held that, although not being relevant to the question of the interference with the claimant ’ s personal integrity as such, the public function of C. had to be taken into account in connection with the scope of the relief to be granted. Bearing it in mind, the Regional Court found that an order for an apology was sufficient and that there was no call for ordering the payment of damages.

19. On 26 September 2007, following an appeal on points of law ( dovolanie ) by C., the Supreme Court ( Najvyšší súd ) quashed the Regional Court ’ s ruling concerning damages, having found that it was not supported by adequate reasoning.

20. The applicant company ’ s appeal concerning the ruling on damages thus fell to be determined by the Regional Court anew, the ruling concerning the order for an apology having meanwhile become final and binding. The applicant company challenge d the latter ruling by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), the details of which are described below.

21. On 19 May 2008 the Regional Court ruled on the claim for damages anew, upholding the District Court ’ s order (see paragraph 15 above). It considered the amount of the damages appropriate, noting that the article concerned a great tragedy in the claimant ’ s family, the fact that by disclosing the full names of B. and C. the article allowed for total identification of the claimant, and the fact that the paper was one of the most read papers in Slovakia . Without providing any details, the Regional Court also took into account the consequences of the article.

22. The applicant company challenged the judgment of 19 May 2008 by way of an appeal on points of law. Relying on Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended), it was argued that the Regional Court had failed adequately to address the applicant company ’ s relevant arguments. In particular, the Regional Court had failed to take into account that the published information was true, that the applicant company ’ s bona fides had not been disputed, that there was no proposition that C. had been involved in any wrongdoing, that the published information concerned a matter of public interest, and that the amount of the awarded damages was as high as one third of the maximum amount of indemnity payable by the State to victims of violent criminal offences under the relevant legislation. Furthermore, it was argued that the Regional Court ’ s conclusions lacked basis in evidence.

23. On 24 February 2009 the Supreme Court declared the applicant company ’ s appeal on points of law inadmissible. It observed that an appeal on points of law was an extraordinary remedy against rulings that – after the exhaustion of an ordinary appeal – had become final and binding. The applicant company ’ s right to have the contested ruling properly reasoned had thus to be counterbalanced by the general interest in legal certainty. From that perspective, and considering the Regional Court ’ s judgment as a whole, the judgment and the reasoning behind it was not incompatible with the applicant company ’ s fair-trial rights.

No further appeal was available.

5. Constitutional proceedings

(a) Ruling concerning the apology

24. On 10 May 2007 the applicant company lodged a complaint with the Constitutional Court ( Ústavný súd ). Relying – inter alia - on Articles 6 and 10 of the Convention, it challenged the ruling concerning the apology, as contained in the judgments of 2 February 2005 and 17 January 2007 (see paragraphs 15 and 17 above).

25. The principal argument was that the assessment of the essence of the case – that is to say the question of the alleged interference with the claimant ’ s personal integrity – had been made without taking into account any considerations of proportionality. It was furthermore argued that the courts ’ conclusions in that respect had not been based on an acceptable assessment of the relevant facts.

26. The disclosure of the names of B. and C., as such, could not be considered as concerning their intimate sphere, all the more so that they had been affected by deeds that were investigated into as a criminal offence, and in the proceedings concerning that offence there had been a suspicion of a violation of another individual ’ s fundamental rights. C. was a person of “public concern” in view of his official function. B. for his part had become a person of “public concern” by becoming a victim of a suspected crime.

27. The object of the article was to report on a suspected violation of A. ’ s fundamental rights. It could not be excluded that the suspected violation of his rights had been due to the fact that he was suspected of having caused the death of the son of a high-ranking official of the PPS.

In that respect, connections and solidarity among the prosecuting authorities were not to be underestimated. It was therefore necessary, in the given circumstances, and in the interest of providing complete and objective information, to disclose the names of B. and C.

28. It was not relevant whether C. had in fact interfered with the prosecuting authorities. The press, as a public watchdog, had the right to express publically doubts as to the impartial exercise of public power and to report on facts giving rise to such doubts.

29. The procedural conduct of C. in the context of his libel action suggested that, had the full names of himself and B. not been disclosed, no action in libel would have been filed. The name of C. was however in the public domain anyway because, being a member of the PPS, it was available on the official Internet site of the PPS.

30. The above-mentioned aspects of the case had not been examined by the courts and neither had been the applicant company ’ s material arguments in that respect.

31. On 18 September 2008 the Constitutional Court declared the complaint inadmissible. It found no constitutionally relevant arbitrariness, unlawfulness, deficiency or irregularity in the courts ’ reasoning. Moreover, it reiterated that, pursuant to its established case-law, a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. As no violation of any procedural rule had been established, there could not have been any violation of any substantive right either.

The decision was served on the applicant ’ s company on 15 October 2008.

(b) Ruling concerning damages

32. On 25 August 2008 the applicant company lodged another constitutional complaint. It relied again, inter alia , on Articles 6 and 10 of the Convention and challenged the ruling on the damages, as contained in the judgments of 2 February 2005 and 19 May 2008 (see paragraphs 15 and 21 above). It mounted a similar line of reasoning as in the previous complaint (see paragraphs 25 et seq. above).

33. From its official Internet page it appears that the Constitutional Court declared the applicant company ’ s complaint i nadmissible, on 9 April 2009. Similarly as before, the Constitutional Court had found no constitutionally relevant deficiency in the challenged decisions.

B. Relevant domestic law and practice

34. The relevant domestic law has been summarised in, for example, Ringier Axel Springer Slovakia , a.s . v. Slovakia (no. 41262/05, §§ 53 et seq., 26 July 2011) and Ringier Axel Springer Slovakia , a.s . v. Slovakia (( dec .), no. 35090/07, 4 October 2011).

COMPLAINTS

35. The applicant company complains under Article 6 § 1 of the Convention that the domestic courts had failed to support their judgments in the libel case by adequate reasoning.

36. The applicant company also complains under Article 10 of the Convention that the outcome of the proceedings was arbitrary, disproportionate and based on one-sided assessment of the facts, focusing exclusively on the protection of the privacy of the claimant and completely disrespecting its right to freedom of expression.

QUESTIONS TO THE PARTIES

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?

Have the domestic courts applied standards which were in conformity with the principles embodied in Article 10 of the Convention and have they based themselves on an acceptable assessment of the relevant facts (see Ringier Axel Springer Slovakia, v. Slovakia , no. 41262/05 , § 109 , 26 July 2011, with further references )?