FIFTH SECTION

Application no. 20981/10 MLADINA D.D. LJUBLJANA against Slovenia lodged on 8 April 2010

STATEMENT OF FACTS

The applicant, private company Mladina D.D. Ljubljana, is the publisher of the weekly magazine Mladina , whose registered office is in Ljubljana . It is represented before the Court by Ms N. Zidar Klemenčič , a lawyer practising in Ljubljana .

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

On 27 June 2005 Mladina published an article entitled “Registration of a Same-Sex Civil Partnership adopted”, which included a summary of the parliamentary debate on the adoption of the Registration of a Same-Sex Civil Partnership Act. The relevant part of the article reads:

“[S.P.], also from the SNP [Slovenian Nationalist Party], assured with a playful smile that there was most probably not a single person in the assembly hall who wished for their ‘ fruit of loins to declare themselves to be for what we are voting on today by our rights ... in other words, none of us would want to have a son or a daughter who would opt for this kind of marriage ’ . If our homeless people can follow the breadcrumb trail to Finland or even further, let these ladies and gentlemen also go there to marry. But the most important victims of this law would be the children in such a marriage, as ‘ Only imagine a child whose father comes to pick him up from school and greets him with “ Heeeeey , I ’ ve come to take you hooooome ! Are you dressed yet ? ’ He accompanied his brilliant idea with a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically feminised and phoney fagot, whereas it really turned out to be just the normal range of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person with his characteristics can even end up in the Parliament, when in any normal country worthy of respect he could not even be a janitor in an average urban primary school.”

On 26 August 2005 the Member of Parliament S.P. brought an action for defamation of his honour and reputation against the applicant company before the Ljubljana District Court, claiming that he had suffered severe mental distress due to the offensiveness of the article. He alleged that the depiction of him as “cerebral bankrupt” was objectively and subjectively offensive, its sole intent being to belittle him.

On 20 September 2005 the applicant company replied that it considered its actions to be lawful, as a balance had to be struck between S.P. ’ s right to honour and reputation and its own right to the freedom of expression. It invoked the standards and case-law of the European Court of Human Rights regarding the freedom of the press to impart information on matters of public interest. The applicant company considered that S.P. ’ s statements in the parliamentary debate amounted to an attack, insult and degradation of homosexuals, which gave rise to the criticism published in Mladina . Nevertheless, the critical article was not aimed at belittling S.P. as a person, but constituted a reaction to his own extreme statements using the same level of communication.

On 28 February 2006 the Ljubljana District Court held an unsuccessful settlement hearing.

On 16 May 2006 another hearing was held in which the court heard S.P., who stated that he had not offended anyone with his remarks, nor had he wished to do so. He understood the offensive remarks in Mladina as an attack on his personality and was very hurt by them, especially as he became the subject of ridicule in his local community.

On the same day the Ljubljana District Court handed down its judgment in which it partially upheld S.P. ’ s claim and ordered the applicant company to pay him damages in the amount of 700,000 Slovenian Tolars (approximately 2,920 Euros). The applicant company was also ordered to publish the introductory and operative part of the judgment in Mladina . The remainder of S.P. ’ s claim was dismissed. The court acknowledged that the applicant company had had the right to publish information on S.P. ’ s participation in the parliamentary debate, along the critical comments on his conduct. However, the term “cerebral bankrupt” was aimed at S.P. ’ s personal characteristics and was therefore objectively offensive. Moreover, the description in the article did not constitute a serious criticism of S.P. ’ s work. As regarded S.P. ’ s conduct, the court held that the gestures he had used to mimic the behaviour of a homosexual man were simply similar to gestures made by actors to convey the idea of homosexuals. The court neither found S.P. ’ s speech or conduct to be offensive to homosexuals, nor did it consider it aimed at promoting prejudice and intolerance against them. It held that S.P. merely expressed his opinion which, wrong as it might have been, was not to be regarded as extreme and thus justifying the expression used in the impugned article.

Both parties appealed against this judgment before the Ljubljana Higher Court .

On 24 January 2007 the Ljubljana Higher Court dismissed the applicant company ’ s appeal. It upheld S.P. ’ s appeal in respect of the text to be published in Mladina informing the public of the judgment, but dismissed his claim for higher damages. The Higher Court upheld the district court ’ s view that the statements in the impugned article constituted an offensive judgment of S.P. ’ s personality which he did not have to endure. Furthermore, the court held that even assuming that S.P. ’ s speech was offensive to homosexuals, this did not justify the applicant company ’ s offensive response aimed at him as a person.

On 10 November 2011 the applicant company lodged a constitutional complaint before the Constitutional Court . It alleged that the impugned article was to be considered as a political satire in which the journalist expressed his opinion on S.P. ’ s conduct in a public parliamentary debate. It further maintained that the remark on the “normal range of a cerebral bankrupt” was not aimed at S.P. as a person but at his mimicking of the gestures allegedly typical of homosexual men.

On 10 September 2009 the Constitutional Court by a majority of six votes against three dismissed the applicant company ’ s complaint, holding that the lower courts had struck a fair balance between its freedom of expression and S.P. ’ s personal dignity. The court acknowledged the broad boundaries of freedom of the press, especially when reporting on matters of a great public interest, but found on the facts of the case at issue that the lower courts appropriately used the criteria resulting from its own case-law and the case-law of the European Court of Human Rights. The court dismissed the applicant company ’ s complaint that the criticism in question had not been aimed at S.P. as a person but at his mimicking of homosexuals, as it concluded that the average reader would understand the remark as an assessment of S.P. ’ s low intelligence and poor personal characteristics. It also dismissed the applicant company ’ s argument that the article was to be regarded as a satire, as it was evident from the text that it was intended to inform the public about the parliamentary debate and to express critical opinions on the speeches of individual deputies. As regards the applicant company ’ s argument that the offensive statement was a response to S.P. ’ s own offensive speech, the Constitutional Court acknowledged that in such cases sharper criticism might be permissible, but only if there was a substantive connection between S.P. ’ s statements and the criticism thereof. As the court found no such connection between S.P. ’ s speech and the assessment of his intellectual abilities, it concluded that the criticism was not justified. In the Constitutional Court ’ s view, the impugned article did not contribute to people being informed or to a socially important public discussion on the position of homosexuals.

Constitutional judge C.R. submitted a dissenting opinion in which he illustrated a climate of general tolerance for intolerant and offensive statements made against homosexuals. Furthermore, he expressed the view that the courts of lower instances had been biased and that also the Constitutional Court failed to appropriately apply the standards of the freedom of the press developed in the case-law of the European Court of Human Rights.

COMPLAINT

The applicant company complains under Article 10 of the Convention that the decisions of the domestic courts violated its right to the freedom of expression, in particular as they failed to recognise that the critical statements about Mr S.P. were not aimed at his personal characteristics but at the content of his speech and the manner of his conduct. They allegedly also failed to examine the broader context and particular circumstances in which the statement published in the applicant company ’ s magazine Mladina was made.

QUESTION TO THE PARTIES

Did the award of civil damages for defamation to Mr S.P. violate the applicant company ’ s right to freedom of expression guaranteed by Article 10 of the Convention? In particular, was the interference “necessary in a democratic society” within the meaning of the relevant Court ’s case ‑ law ?