European Court of Human Rights
27 May 2014
Facts
The applicants were ordered by the civil courts to pay damages for defamation on account of the publication of an article written by one of the applicants, a constitutional law professor, criticising a decision of the Constitutional Court to dissolve a political party and questioning the professional competence and impartiality of the majority of judges who heard the case.
Complaint
The applicants complained that the judgments given in the civil cases against them had breached their right to freedom of expression as provided in Article 10 of the Convention.
Court’s ruling
The Court noted that the subject matter of the article in question, written by an academic, concerned an important and topical issue in a democratic society – the functioning of the system of justice – which the public had a legitimate interest in being informed of. It therefore contributed to a debate of general interest.
The claimants in the 3 sets of proceedings were members of the Constitutional Court who had voted in favour of the dissolution of the political party. Whilst it could not be said that they knowingly laid themselves open to scrutiny of their every word and deed to the same extent as politicians, members of the judiciary acting in an official capacity could nevertheless be subject to wider limits of acceptable criticism than ordinary citizens. At the same time, however, the Court had on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially because judges who have been criticised are subject to a duty of discretion that precludes them from replying.
The domestic courts considered that certain expressions used in the article were defamatory of the claimants and that the author had overstepped the boundaries of acceptable criticism. The Court accepted that some of the language and expressions used were harsh and could be perceived as offensive. That said, they were mostly value judgments, coloured by the author’s own political and legal opinions and perceptions. In this connection, they were based on the way the Constitutional Court had ruled on certain issues and the rulings concerned, including the decision to dissolve the political party, were already subject to virulent public debate, as the applicant had sought to demonstrate in the domestic proceedings. They could therefore be considered to have had a sufficient factual basis. The domestic courts had not attempted to distinguish the statements of fact in the impugned article from value judgments, and did not appear to have examined whether the “duties and responsibilities” incumbent on the applicants within the meaning of Article 10 (2) of the Convention were observed or to have assessed whether the article was published in good faith. They had not placed the impugned remarks within the context in which they were expressed. In that connection, the Court reiterated that style constitutes part of the communication as the form of expression and, as such, is protected together with the content of the expression. When account was taken of the content of the article as a whole and of the context, the impugned remarks could not be construed as a gratuitous personal attack against the claimants.
In the light of the above, the national authorities had not adduced sufficient reasons to show that the interference with the applicants’ freedom of expression had been necessary in a democratic society to protect the reputation and rights of others. The Court found a violation of Article 10.