DISSENTING OPINION OF JUDGES FISCHBACH AND LORENZEN

We do not share the view of the majority of judges that there has been a violation of Article 10 of the Convention.

The main point in question in the present case is whether the interference with the applicant’s right to freedom of expression was proportionate to the legitimate aim pursued and whether the reasons given by the national courts to justify it were relevant and sufficient. In this respect, we point out at the outset that it is not the Court’s task to take the place of the domestic courts in assessing the factual background of the case or, in particular, to give any qualification whatsoever to the relevant period of the past of Mr Slobodník .

It is apparent from the statement of 29 July 1992, when read as a whole, that the applicant’s main concern was to show that the past of Mr Slobodník , which “came out in public” and which he characterised as being “fascist” constituted a threat to the democratic development and image of Slovakia, and that it was incompatible with the personal qualities required of a member of the government. The applicant further called for the resignation of Mr Slobodník as, in his view, Slovakia could otherwise find itself in political, economic and cultural isolation. In doing so, the applicant expressly referred to the philosophy of the Nuremberg trials, namely the philosophy governing the proceedings before the International Military Tribunal, the purpose of which had been to try and punish the major war criminals of the European Axis bearing individual responsibility for crimes against peace, war crimes and crimes against humanity.

In their judgments, the appellate court and the court of cassation noted that the relevant period of the life of Mr Slobodník had been described in the book written by himself and published in 1991. It had also been covered by the press in Slovakia and abroad both prior to and after the applicant’s statement, and on several occasions Mr Slobodník had commented and given interviews on the subject.

Thus, the applicant’s statement was based only on information which had already been published in 1991 and no other relevant facts were established in the course of the public debate and court proceedings in Slovakia . In his statement the applicant referred to the fact that Mr Slobodn ík had been appointed Minister for Culture and Education in June 1992 and added that “... the next thing was that his fascist past came out in public”. That sentence could give the reader the impression that the allegation of a “fascist past” was based on information that had become public only after Mr Slobodn í k’s appointment as a minister of the government.

We admit that the opinion expressed in the statement was a value judgment on an issue of public interest, as it concerned a minister, that is, a public figure in respect of whom the limits of acceptable criticism are admittedly wider than for a private individual.

As to the question whether there existed a sufficient factual basis for the impugned statement, it should be recalled that the appellate court held that the applicant himself had given a restrictive interpretation to the term “fascist past” in that he had expressly referred to the philosophy of the Nuremberg trials.

The appellate court examined all the available documents and evidence used during the Nuremberg trials and relating to Slovakia , but it found no reference in them to the Hlinka Youth in connection with fascist organisations. It established that the propagation or implementation of fascist theories had not been inherent in the statutory rules and regulations governing the Hlinka Youth. The appellate court found that Mr Slobodn í k had joined that organisation because he had wanted to participate in sports activities and had not been motivated by fascist sympathies. As to the training course in Sekule , it found that Mr Slobodn í k had not completed it and accepted the latter’s argument that he had learned about the purpose of the course only after he had started attending it. The appellate court concluded that Mr Slobodn í k was not individually responsible for any action which would justify describing his past as fascist.

The court of cassation upheld the finding of the appellate court that a person could be considered to have a fascist past only if he had propagated or practised fascism in an active manner. Mere membership of an organisation and participation in a terrorist training course which had not been followed by any practical actions could not be characterised as a fascist past. As the applicant had not proved that Mr Slobodn í k had a fascist past within that meaning, the court of cassation found that the statement of 29 July 1992 had been an unjustified interference with his personality rights. However, the court of cassation did not exclude that the applicant’s statement could be regarded as a value judgment, which would not require any proof, if it had been accompanied by reference to the facts on which the applicant had based his judgment.

In our opinion, the term “fascist past” used by the applicant in his statement is a vast term capable of evoking in those who read it different notions as to its content and significance. Admittedly, the role of a journalist and the press in general is to impart information and ideas on matters of public interest, even those that may offend, shock or disturb. However, that information must permit readers to understand the circumstances or events on which the author has expressed a value judgment so that they do not gain the wrong impression about the content of the information.

In his statement, the applicant made no reference to the book by Mr Slobodník , the relevant newspaper articles or other sources of information, nor did he reveal the circumstances or events from which he derived his value judgment, merely mentioning Mr Slobodník’s “fascist past” which “came out in public”. By indicating that the information on Mr Slobodn ík ’s past came out after he had become Minister for Culture and Education, the applicant gave the impression that his statement was based on information that was not already publicly known. This is all the more important as he expressly referred to the philosophy of the Nuremberg trials. In doing so, the applicant opened the door to all kinds of speculations about the fascist and criminal past of Mr Slobodn í k even for those who had read the material concerning Mr Slobodník’s past. The applicant thereby exceeded the wide limits of acceptable criticism afforded by the Court’s case-law in respect of a politician or a member of the government.

In these circumstances, and having regard to the duties and responsibilities inherent in the right to freedom of expression guaranteed by Article 10 of the Convention and the Contracting States’ obligation to provide a measure of protection to the right of an individual to respect for his private life, we consider that it was not unreasonable that, having examined and balanced the interests at issue, the appellate court and the court of cassation rejected the argument that the applicant’s right to freedom of expression should outweigh Mr Slobodník’s right to protection of his reputation and reached the opposite conclusion.

In our opinion, the appellate court and the court of cassation exercised their discretion carefully and reasonably. The reasons adduced by them appear to be based on an acceptable assessment of the facts and they are relevant and sufficient. Furthermore, there is no indication that the applicant was deprived of an effective opportunity to adduce evidence in support of his statement and thereby show that it constituted a fair comment. We therefore consider that the standards applied were compatible with the principles embodied in Article 10.

In addition, taking into account the fact that the court of cassation ordered the applicant only to endure publication of a declaration of the defamatory character of his statement but dismissed Mr Slobodn í k’s claim for non-pecuniary damage as being unsubstantiated, we find that the ruling complained of was not disproportionate to the legitimate aim pursued.

We therefore consider that the interference with the applicant’s right to freedom of expression can reasonably be regarded as having been “necessary in a democratic society” within the meaning of paragraph 2 of Article 10 and that, accordingly, there has been no violation of Article 10 of the Convention.