CASE OF FELDEK v. SLOVAKIA

1. The case originated in an application (no. 29032/95) against the Slovak Republic lodged with the European Commission of Human Rights under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Ľubomír Feldek (“the applicant”), on 11 September 1995. The applicant, who is a poet, writer and publicist, later acquired Czech nationality.
2. Before the Court, the applicant was represented by Mr E. Valko, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mr R. Fico, who, on 14 April 2000, was succeeded by Mr P. Vršanský.
3. The applicant alleged, in particular, that his rights to freedom of expression and to freedom of thought had been violated and that he had been discriminated against in the context of defamation proceedings brought against him.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. By a decision of 15 June 2000 the Chamber declared the application partly admissible [ Note by the Registry. The Court’s decision is obtainable from the Registry].
7. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine ), the parties submitted additional observations on the merits. In addition, third-party comments were received from Mr Dušan Slobodník, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).
I. THE CIRCUMSTANCES OF THE CASE
8. In 1991 Mr Dušan Slobodník, a research worker in the field of literature, published an autobiography entitled Paragraph: Polar Circle. He described in it, inter alia, his conviction by a Soviet military tribunal in 1945 on the ground that he had been ordered to spy on the Soviet army after having been enrolled, in 1944 when he was 17 years old, in a military training course organised by Germans. In the book, Mr Slobodník also wrote about his detention in Soviet gulags and his rehabilitation by the Supreme Court of the Union of the Soviet Socialist Republics in 1960. In June 1992 Mr Slobodník became Minister for Culture and Education of the Slovak Republic.
9. On 20 July 1992 the newspaper Telegraf published a poem by the applicant. It was dated 17 July 1992 (the day when the sovereignty of the Slovak Republic was solemnly proclaimed) and entitled “Good night, my beloved” (“ Dobrú noc, má milá ”). One of its verses read as follows:
“In Prague prisoner Havel is giving up his presidential office. In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB [The ŠTB ( Štátna bezpečnosť ) was the secret police during the communist regime in Czechoslovakia ] embraced each other.”
10. The poem was later published in another newspaper. In separate articles, two journalists alleged that the expression “member of the SS” stood for Mr Dušan Slobodník.
11. On 30 July 1992 several newspapers published a statement which the applicant had distributed to the Public Information Service ( Verejná informačná služba ) the day before. It was entitled “For a better picture of Slovakia – without a minister with a fascist past” (“ Za lepší obraz Slovenska – bez ministra s fašistickou minulosťou ”). It read as follows:
“There has been a problem about how to keep a democratic character in [the Slovakian] national emancipation process, which we have tried to resolve many times. Until now, Slovakia has lost most when matters related to the Slovakian nation were in the hands of the wrong people who led us away from democratic evolution. The cost was high: for example, the combatants’ lives lost in the Slovakian National Uprising [in 1944 and 1945].
Now, we are scared that this mistake could be made again. To say that our way to Europe is by working together and cooperating in its democratic evolution is not enough. This is a direct condition arising from international law without the fulfilment of which no one in Europe will take notice of us.
I expressed this concern in my polemics with Mr Dušan Slobodník last year; life has finished the writing of our polemics, and my views were proved correct.
This year Mr Slobodník became the Slovak Republic ’s Minister for Culture and Education and the next thing was that his fascist past came out in public. Mr Slobodník managed this situation in a way that allowed the writer Ladislav Mňačko to prove he was a liar. But he still has not given up his ministerial post, although in any other democratic country he would have had to do so a long time ago.
Does Mr Slobodník think that Slovakia is some special exception and that it is the only country having the right to revise the philosophy of the Nuremberg trials, which is binding on the post-war development of all other European countries? Or is the message of the Slovakian National Uprising not correct? ... Does Mr Mečiar think that having this minister in the government will help him to persuade people in Europe that his talk about the democratic intentions of his government is serious? Is it good to have Mr Slobodník in the government when this fact will lead to the political, economic and cultural isolation of Slovakia?
Mr Slobodník likes to use every chance to talk about improving the image of Slovakia around the world. I fully agree with him on this. He has a personal opportunity to do something in order to improve the image of Slovakia : to resign.”
12. On 5 August 1992 Mr Slobodník publicly declared that he would sue the applicant for the above statement.
13. In an interview published in the Czech daily Lidové noviny on 12 August 1992 the applicant stated, inter alia :
“... when I speak of the fascist past [of Mr Slobodník], I do not characterise him, I only think that the fact that he attended a terrorist training course organised by the SS falls within the term ‘fascist past’. I consider that such a person has nothing to do in the government of a democratic State ...”
14. In the context of the nomination of Mr Slobodník to a post in the government, issues relating to his past were taken up by several Slovakian and Czech newspapers both before and after the publication of the applicant’s statement. Articles concerning this subject were also published in The New York Times, on 22 July 1992, the Tribune de Genève, on 18 September 1992, Izvestia on 31 August 1992, as well as by the Austrian Press Agency. The New York Times, the Tribune de Genève and Izvestia later published the reaction of Mr Slobodník to their respective articles.
15. On 9 September 1992 Mr Slobodník sued the applicant for defamation under Article 11 et seq. of the Civil Code before the Bratislava City Court ( Mestský súd ). He later extended the action and alleged that the verses “In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB embraced each other” from the applicant’s poem referred to him. He also alleged that the above-mentioned statement published in the newspapers wrongly referred to his fascist past. The plaintiff claimed that the applicant should bear the costs of publication of an apology in five newspapers and also pay him 250,000 Slovakian korunas (SKK) as compensation.
A. Proceedings before the Bratislava City Court
16. On 18 October 1993 the Bratislava City Court dismissed the action. It established that the plaintiff had been a member of the Hlinka Youth ( Hlinkova mládež ) and that in February and March 1945 he had participated in a terrorist training course in Sekule. It observed that the Hlinka Youth had been a military corps of the Hlinka Slovakian People’s Party ( Hlinkova slovenská ľudová strana ) and that under the law then in force the Slovak nation had participated in the exercise of State power through the intermediary of that party. The court pointed out that, under Article 5 of Presidential Decree no. 5/1945 of 19 May 1945, legal persons which had deliberately promoted the war waged by Germany and Hungary or had served fascist and Nazi aims were to be considered unworthy of the State’s trust.
17. The City Court further established that in May 1945 a military tribunal of the Soviet army had sentenced Mr Slobodník to fifteen years’ imprisonment on the ground that he had attended the training course in Sekule and had been ordered, on 22 March 1945, to cross the front line and to spy on Soviet troops. The military tribunal’s judgment further stated that Mr Slobodník had not crossed the front line but had gone home in April 1945, when he had been arrested. The City Court also noted that the plaintiff had served the sentence in Soviet camps until his release in 1953. In 1960 the Supreme Court of the USSR had quashed the sentence and discontinued the proceedings for the lack of factual elements of an offence.
18. Before the City Court, Mr Slobodník claimed that he had been a member of the Hlinka Youth only for a short time and that he had joined the organisation only because it had been a prerequisite for his participation in a table-tennis tournament. He further explained that he had been summoned to the training course in Sekule and that he had complied with the summons out of fear for himself and his family. Mr Slobodník alleged that he had been excluded from the course as being unreliable after he had expressed his negative opinion about it. He had then been taken to the Hlinka Youth headquarters in Bratislava, from where he had been allowed to return home to Banská Bystrica under the condition that he would report on the Soviet army. However, the City Court did not find these facts established. In particular, it did not consider as relevant evidence the description of the events contained in the plaintiff’s book Paragraph: Polar Circle, which had been published earlier. In its view, the fact that the 1945 sentence had been quashed did not prove that the plaintiff had not been a member of the Hlinka Youth and that he had not attended the training course in Sekule.
19. The City Court also noted that the relevant period of Mr Slobodník ’ s life had been covered by the press both in Slovakia and abroad prior to the applicant’s statement, and that on several occasions Mr Slobodník himself had commented and given interviews on those issues, both in Slovakia and abroad. The court concluded that, in the statement, the applicant had expressed his opinion on the basis of information which had already been published in the press. The statement concerned a public figure who was inevitably exposed to close scrutiny and sometimes also to criticism by other members of society. By making the statement, the applicant had exercised his right to freedom of expression and he had not unjustifiably interfered with the plaintiff’s personality rights.
20. Mr Slobodník appealed to the Supreme Court ( Najvyšší súd ), alleging that the applicant had not proved that he had a “fascist past”, and that the City Court had not established the meaning of that term. Mr Slobodník argued that he had been summoned to the training course in Sekule by an order and that he had left it at the first opportunity after he had learned about its real purpose. He also explained that martial law had been in force at the material time and that people had been unlawfully executed or detained. Members of the Hlinka Youth had been incorporated in the armed forces by a presidential order and had fallen under military judicial and disciplinary rules. The plaintiff maintained that he had done nothing against his homeland or the anti-fascist allies and concluded that the applicant’s statement and poem were defamatory.
21. The applicant contended, in particular, that the courts should abandon their established practice according to which the defendant has to prove the truthfulness of his statements in defamation proceedings. He maintained that the burden of proof should be shifted onto the plaintiff or shared between the parties. The applicant further argued that his statement was a value judgment based on the undisputed facts that the plaintiff had been a member of the Hlinka Youth and that he had attended a terrorist training course in Sekule. It was irrelevant to what extent the plaintiff had been involved in the activities of the Hlinka Youth or for how long he had been a member of it. What mattered was that the plaintiff had voluntarily joined the organisation and that, after his alleged exclusion from the training course in Sekule, he had undertaken, as shown by the Soviet military tribunal’s judgment of 19 May 1945, to provide information on the movements of Soviet troops to the headquarters of the Hlinka Youth. The applicant therefore proposed that the appeal be dismissed.
22. On 23 March 1994 the Supreme Court reversed the first-instance judgment, ruling as follows:
“... [the applicant] has to accept that ... Dušan Slobodník will distribute, if he thinks fit, to the Press Agency of the Slovak Republic as well as to five newspapers of his choice, both in Slovakia and abroad, the following declaration to be published at [the applicant’s] expense:
‘(1) [The applicant’s] statement addressed to [the Public Information Service] and published in daily newspapers on 30 July 1992 which reads: “...This year Mr Slobodník became the Slovak Republic’s Minister for Culture and Education and the next thing was that his fascist past came out in public ... Does Mr Slobodník think that Slovakia is some special exception and that it is the only country having the right to revise the philosophy of the Nuremberg trials, which is binding on the post-war development of all other European countries? ...”
(2) The occasional poem ... entitled “Good night, my beloved” in its part “... In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB embraced each other ...”
... represent a gross slander and disparagement of the civil honour and life, and an unjustified interference with the personality of the plaintiff Dušan Slobodník .’
(4) [The applicant] is liable to pay SKK 200,000 to the plaintiff in respect of non-pecuniary damage. ...’ ”
23. The applicant was also ordered to pay costs and the other party’s expenses.
24. The Supreme Court noted that the plaintiff had described the relevant events in his book Paragraph: Polar Circle before the dispute concerning his past had arisen, and that no other relevant facts had been established in the course of the proceedings.
25. In the appellate court’s view, the term “fascist past” was equivalent to the statement that a person was a fascist in the past. The court considered that the applicant himself had given a restrictive interpretation of that term in connection with the plaintiff, namely the interpretation according to the philosophy of the Nuremberg trials. This philosophy was derived from the multilateral agreement of 8 August 1945, which included also the statute of the International Military Tribunal, and which had become part of the Czechoslovakian legal order on 2 October 1947. The Supreme Court held that it was bound by the principle of individual responsibility set out in that agreement.
26. The Supreme Court further studied all available documents and evidence used during the Nuremberg trials relating to Slovakia. It found no reference in those documents 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. If some persons had abused the Christian principles on which the organisation had been built, this had contravened the rules then in force. Such persons and, as the case might be, those who had let themselves be abused for criminal purposes, were individually responsible. However, such was not the case of the plaintiff. The Supreme Court accepted the latter’s argument that he had learned about the character of the training course in Sekule only after he had started attending it.
27. The appellate court found irrelevant the reference, in the first-instance court’s judgment, to Presidential Decree no. 5/1945 of 19 May 1945 as that decree had only concerned property, in that it had placed under national administration the property of persons whom the State had considered unreliable.
28. The Supreme Court recalled that, at the relevant time, criminal and moral liability had been governed by Order no. 33 on the punishment of fascist criminals, occupants, traitors and collaborators and on the establishment of the people’s judiciary adopted by the Slovakian National Council on 15 May 1945 and also by Presidential Decree no. 16/1945 of 19 June 1945 on the punishment of Nazi criminals, traitors and their assistants and on extra-ordinary people’s courts. These rules were partly based on the principle of collective liability, but they did not mention the Hlinka Youth.
29. As regards the poem by the applicant, the Supreme Court noted that it was dated 17 July 1992, that is, the day on which the sovereignty of the Slovak Republic had been proclaimed from the balcony of the Slovakian National Council, where Mr Slobodník had also been present. Shortly afterwards, the applicant had written his statement concerning Mr Slobodník’s past and two journalists had interpreted the poem as a description of the scene during the proclamation. They had alleged that by “member of the SS” the applicant had meant to designate Mr Slobodník. The court therefore concluded that the applicant had infringed the plaintiff’s personality rights by his poem as well as by his statement of 29 July 1992.
30. The applicant’s request that the burden of proof in the case should be shifted onto the plaintiff or at least shared between the parties was not accepted as it had no basis in domestic law and practice. The Supreme Court concluded that the applicant had not proved that Mr Slobodník had been a fascist in the past, holding that the latter had joined the Hlinka Youth 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 Slobodník had not completed it, and it was irrelevant whether he had been excluded or had left it on his own initiative. The only relevant fact was that the plaintiff’s past could not be considered fascist from that point of view.
C. Proceedings concerning the applicant’s appeal on points of law
31. The applicant filed an appeal on points of law alleging, inter alia, a violation of his rights under Article 10 of the Convention. He claimed that the Supreme Court should have concluded from the relevant provisions of Presidential Decree no. 5/1945 that the Hlinka Youth was a fascist organisation and that, in accordance with the relevant provisions of the Slovakian National Council’s Orders nos. 1/1944 and 4/1944, participation in any activity within the Hlinka Youth was to be considered as participation in an unlawful fascist organisation. He further complained that the Supreme Court had not established with sufficient certainty whether the plaintiff had actually been excluded from the training course in Sekule, and whether he had undertaken to carry out terrorist activities or not.
32. On 25 May 1995 a different Chamber of the Supreme Court sitting as a court of cassation upheld the part of the appeal judgment of 23 March 1994 according to which the plaintiff was entitled to arrange for publication of the text set out in it and concerning the applicant’s statement of 29 July 1992. As for the remainder, the court of cassation quashed both the first and second-instance judgments and sent the case back to the Bratislava City Court.
33. The court of cassation did not share the applicant’s view that the plaintiff should be required to prove that the applicant’s allegations were untrue. It further held that a person could be considered as having a fascist past only if he or she 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.
34. As the applicant had failed to prove that the plaintiff had a fascist past within the above meaning, the court found that his statement had infringed without justification the plaintiff’s personality rights. In the judgment, the court admitted that Slovakian law characterised the Hlinka Youth as a fascist organisation. It recalled, however, that the relevant legal rules, including those relied on by the applicant, applied to natural persons only where justified by their specific actions. Applying those rules to all members of such organisations without considering their actual deeds would entail the recognition of their collective guilt. It recalled that children over the age of 6 had been admitted to the Hlinka Youth.
35. The court considered that the applicant’s argument according to which his statement was a value judgment could only have been accepted if the applicant had expressly referred, in that statement, to the particular facts on which such a value judgment was based. The court stated, inter alia :
“Indicating that the plaintiff has had a fascist past is not a value judgment based on an analysis of facts, but an allegation (statement) made without any concurrent justification of factual circumstances from which a conclusion can be inferred by the person making the judgment. It could have been a value judgment if the statement [of the applicant] had been accompanied by reference to the [plaintiff’s] membership of the Hlinka Youth and his participation in the training course, namely, to the activities which the person making the judgment considers to constitute a fascist past. Only such a statement, based on circumstantial facts used by the person making the judgment, would be a value judgment the truthfulness of which would not require any proof. Only such an interpretation will guarantee a balance between the freedom of expression and the right to the protection of [a person’s] reputation within the meaning of Article 10 of the Convention.”
36. The court then found the restriction on the applicant’s freedom of expression compatible with the requirements of Article 10 § 2 of the Convention as it was necessary for the protection of the plaintiff’s reputation in accordance with Articles 11 et seq. of the Civil Code.
37. As to the poem, the court of cassation quashed both the first and second-instance judgments for lack of evidence and held that in further proceedings the plaintiff would have to prove that the applicant had referred to him in the poem. It also quashed the part of the appeal concerning compensation for non-pecuniary damage and costs since their award depended on an assessment of both the interferences complained of by the plaintiff.
38. On 15 April 1996 the Bratislava City Court reached a new decision on the remainder of the case. It stayed the proceedings as far as the poem was concerned on the ground that the plaintiff had withdrawn that part of the action.
39. The City Court further dismissed the claim in respect of non-pecuniary damage as it did not find it established that the applicant’s statement had considerably diminished the plaintiff’s dignity and position in society within the meaning of Article 13 § 2 of the Civil Code. In its view, the plaintiff had failed to show that the considerable publicity concerning his person had arisen as a result of the applicant’s statement and not, as the case might be, as a consequence of newspaper articles and the plaintiff’s book published prior to the applicant’s statement.
40. Having considered to what extent the parties had been successful in the proceedings, the City Court ordered the plaintiff to pay SKK 56,780 to the applicant in reimbursement of the relevant part of the latter’s costs. The applicant and the plaintiff were further ordered to pay respectively SKK 875 and 2,625 in reimbursement of the costs paid in advance by the court.
41. On 25 November 1998 the Supreme Court upheld the decision of the Bratislava City Court to discontinue the proceedings in respect of the poem and to dismiss the plaintiff’s claim for non-pecuniary damage. The Supreme Court held that neither party was entitled to have the costs reimbursed. It further ordered each party to pay half of the costs paid in advance by the State, namely SKK 1,750. Mr Slobodník filed an appeal on points of law. The proceedings are pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Presidential Decree no. 5/1945
42. The above decree was issued by President Beneš on 19 May 1945 and concerned, inter alia, the placing under national administration of the property of “Germans, Hungarians, traitors and collaborators and of certain organisations and institutions”.
43. Article 4 (b) qualifies as unworthy of the State’s trust
“persons who carried out activities directed against State sovereignty, the independence, integrity, democratic and republican form of the State, or the security and defence of the Czechoslovak Republic, who incited other persons to take part in such activities and deliberately supported the German and Hungarian occupants in any way whatsoever. Persons falling under this category shall include, for example, ... leading representatives of ... the Hlinka Youth ... and other fascist organisations of a similar nature.”
44. Article 5 qualifies as being unworthy of the State’s trust those legal persons whose administrations had deliberately promoted the conduct of war by Germany and Hungary or served fascist and Nazi aims.
B. The Civil Code and the relevant practice
45. The right to protection of a person’s dignity, honour, reputation and good name is guaranteed by Articles 11 et seq. of the Civil Code.
46. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
47. According to Article 13 § 1, any natural person has the right to request that unjustified infringement of his or her personality rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
48. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage.
49. In accordance with the established practice, a plaintiff in defamation proceedings has to prove that the defendant’s allegations were objectively capable of affecting his or her rights under Article 11 of the Civil Code. If this requirement is met, the defendant is obliged to produce evidence capable of proving the truth of his or her allegations if the defence is to succeed.
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
50. The applicant complained that his right to freedom of expression had been violated in that the courts had granted Mr Slobodník ’s action concerning the statement published on 30 July 1992. He alleged a violation of Article 10 of the Convention which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Existence of an interference
51. The Court finds that it is clear and undisputed that there has been an interference with the applicant’s right to freedom of expression in that the relevant judicial decisions declared the applicant’s statement defamatory and ordered him to endure the publication of this conclusion in five newspapers of the plaintiff’s choice.
B. Justification of the interference
52. This interference would contravene Article 10 of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of Article 10, and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn.
53. The applicant contended that the legal basis for the restriction of his freedom of expression was not sufficiently foreseeable as required by the Court’s case-law. He alleged, in particular, that Slovakian law, as interpreted and applied by the domestic courts, does not adequately define what is defamation in that it does not distinguish between value judgments and facts and between public officials and private persons. The foreseeability of the restriction could also be questioned because the applicant had justifiably believed that the national courts would proceed in compliance with the case-law under the Convention relating to the notions of fair comment and burden of proof in similar cases.
54. The Government disagreed and maintained that the interference was prescribed by law, namely, by Articles 11 et seq. of the Civil Code.
55. As to the applicant’s argument that the domestic courts failed to proceed in compliance with the case-law under the Convention, the Court finds that this issue falls to be examined below when determining whether the interference was “necessary in a democratic society”.
56. To the extent that the applicant alleges that the relevant law was not sufficiently foreseeable, the Court recalls that one of the requirements flowing from the expression “prescribed by law” is the foreseeability of the measure concerned. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Whilst certainty in the law is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, for example, Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III).
57. The interference complained of had a legal basis, namely Articles 11 and 13 § 1 of the Civil Code. Under the latter provision, any natural person may request that unjustified infringement of his or her personality rights within the meaning of Article 11 of the Civil Code should be stopped, that the consequences of such interference should be eliminated and that he or she should be granted appropriate satisfaction. It is within the national courts’ discretion to consider any specific complaint of an alleged infringement and to decide on the appropriate satisfaction. In accordance with the established practice, a plaintiff in defamation proceedings has to prove that the defendant’s allegations were objectively capable of affecting his or her rights under Article 11 of the Civil Code, in which case the defendant is required to produce evidence capable of proving the truth of his or her allegations if the defence is to succeed. The Court is satisfied that the application of these legal provisions and practice to the applicant’s case did not go beyond what could reasonably be foreseen in the circumstances. Accordingly, the interference was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.
58. The Court finds, and this was not in dispute between the parties, that the grounds relied on by the Slovakian courts were consistent with the aim of protecting the personality rights of the plaintiff, who considered himself affected by the applicant’s statement. The interference therefore had a legitimate aim for the purposes of paragraph 2 of Article 10, namely, to protect “the reputation or rights of others”.
3. “Necessary in a democratic society”
( a ) Arguments before the Court
59. The applicant maintained that the interference had not been “necessary in the democratic society” because the domestic courts had failed to respect the principle of proportionality between the restriction of freedom of expression and the objective set out in Article 10 § 2 of the Convention. In particular, he had been sanctioned for criticism of a member of the government in respect of whom the limits of acceptable criticism should be wider than in respect of a private individual. He further argued that a free political debate is the core concept of a democratic society, that the discussions about political issues deserve a greater protection than non-political discussions and that, consequently, the State has very narrow margins for restricting such expression.
60. The applicant submitted, with reference to the Court’s case-law, that the freedom of expression was applicable also to information or ideas that offend, shock or disturb and that journalistic freedom also covered possible recourse to a degree of exaggeration, or even provocation.
61. His statement about the past of Mr Slobodník was a value judgment which he had formulated after he had learned, through the media and from the book written by Mr Slobodník, that the latter had been a member of the Hlinka Youth and had participated in a terrorist training course in Sekule. The applicant deemed it necessary to express his opinion to the public, who have the right to be informed about the past of a public figure. He did not act in bad faith, making the statement on the basis of widely known facts which, as he believed, justified using the term “fascist past”.
62. In the applicant’s view, the Supreme Court’s opinion according to which his statement could have been considered a value judgment only if he had simultaneously referred to the facts on which it had been based was too restrictive and erroneous. He contended that the burden of proof imposed on him in conformity with the domestic practice had been in violation of his right to freedom of expression. In this regard he argued, in particular, that (i) the Supreme Court had denied him the means of proving the truthfulness of his allegations by distorting what constituted a fascist past or, in the alternative, had unlawfully denied him a reasonable margin of error for making statements about a member of the government which were not devoid of foundation or good faith, and (ii) he had been required to prove the truthfulness of his opinion expressed in the statement even though statements of opinion are not susceptible of proof.
63. Finally, the applicant underlined that his statement had been made in the context of a free political debate and that it involved a matter of public interest, namely the assessment of a politician’s past. The statement pursued a legitimate objective, namely to show that, if there was even a shadow of suspicion, the person concerned should not hold any public position. It also concerned, in a broader context, the history of Slovakia during the Second World War, which is still a topical issue in Slovakia. The applicant concluded that his right to freedom of expression had been violated.
64. The Government argued that the interference was proportionate to the legitimate aim pursued and that the reasons adduced by the domestic courts were sufficient and relevant. In their view, labelling a politician as a person with a fascist past could have a serious impact on the reputation of the person concerned.
65. They submitted that the applicant had made his statement shortly after the parliamentary election of 1992 and after Mr Slobodník had become the Minister for Culture and Education. According to the Government, the applicant had learned all about Mr Slobodník’s past long before the election from the latter’s book. Apart from the statement about Mr Slobodník ’ s alleged fascist past, the applicant had not mentioned any other relevant facts, such as that Mr Slobodník had been 17 years old in 1945, the reasons for his participation in the terrorist training course, his exclusion from the course, his later conviction and eight-year incarceration in Soviet camps, and finally the decision of 1960 of the Supreme Court of the USSR by which Mr Slobodník’s conviction had been quashed on the ground that he had committed no offence. In addition, the comparison of Mr Slobodník ’ s conduct and fascist history had not been based on precise or correct facts, nor had it corresponded to a bona fide evaluation of the relevant facts.
66. The Government recalled that the national courts had not required the applicant to publish an apology, that they had given the plaintiff the possibility of having the declaration of the defamatory character of the applicant’s statement published in five newspapers at the cost of the applicant who had, therefore, only been required to endure the exercise of the plaintiff’s right in this respect.
67. Finally, the Government pointed out that the case attracted the attention of the public at large in Slovakia and underlined that the Court’s decision on the merits of the present application would be important for the Slovakian courts when deciding on similar issues.
68. In his comments submitted under Article 36 § 2 of the Convention and Rule 61 § 3 of the Rules of Court, Mr Slobodník observed that he had written his book Paragraph: Polar Circle between 1989 and 1990, that is, when he had been a research worker in the field of literature, and that it had been published in 1991. The book contained a detailed description of the relevant events which, in Mr Slobodník’s view, the applicant had failed to take into consideration when making his statement. In this context, Mr Slobodník maintained, in particular, that (i) he had joined the Hlinka Youth after he had won, in May 1944, a regional table-tennis championship, as membership of the organisation had been a prerequisite for his participation in the ensuing all-Slovakian tournament, and (ii) in 1944, after the Slovakian National Uprising had been suppressed and martial law had been declared, he and his mother had helped four foreign partisans to escape from a German hospital.
69. As to the training course in Sekule, Mr Slobodník had to comply with the summons by the headquarters of the Hlinka Youth for fear of reprisals. He futher explained that he had learned about the real purpose of the course only after his arrival in Sekule, that he had attended it only for some ten or twelve days and that he had been excluded after he had expressed his negative attitude towards the course. Subsequently he had promised the representatives of the Hlinka Youth headquarters to provide them with information concerning the Soviet army as he had wanted to get back home. He had not, however, carried out any spying. Mr Slobodník submitted that these facts were supported by the relevant documents kept in the archives and that the courts at second and third instance had held them to be established.
70. According to Mr Slobodník, the applicant had distorted the relevant facts and had made the statement about his past because they had started having different political views in the context of the 1992 parliamentary election. Mr Slobodník contended that, while the applicant had publicly referred to his book in 1991 as having been “written by the kind, forgiving pen of a Christian ”, it had become for him the proof of Mr Slobodník’s fascist past one year later. The applicant had not, therefore, made his statement in good faith.
71. Finally, Mr Slobodník asserted that by linking his past to the Nuremberg trials the applicant had grossly interfered with his privacy. Moreover, the applicant had criticised his past and not his actions as a member of the government. Mr Slobodník concluded that the interference with the applicant’s right to freedom of expression had been justified.
72. According to the Court’s case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be construed strictly (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII, and Lehideux and Isorni v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2886, § 52).
73. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The Court’s task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, pp. 25-26, § 52, and Jerusalem v. Austria, no. 26958/95, § 33, ECHR 2001-II, with further references).
74. The Court further recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61,ECHR 1999-IV). Moreover, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42, or Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54).
75. In its practice, the Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Lingens, cited above, p. 28, § 46, and Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 27, § 63).
76. Where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, p. 236, § 47, and Jerusalem, cited above, § 43).
(ii) Application of the aforementioned principles to the instant case
77. In the present case, the Court is called upon to examine the applicant’s complaint that the judgment of the court of cassation whereby he was obliged to endure the publication of a text declaring his statement defamatory interfered with his freedom of expression in violation of Article 10 of the Convention. In exercising its supervisory jurisdiction the Court must look at the impugned interference with the applicant’s right to freedom of expression in the light of the case as a whole, including the content of the statement concerned, the context in which it was made and also the particular circumstances of those involved.
78. As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction. In cases concerning the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see Thoma v. Luxembourg, no. 38432/97, § 48, ECHR 2001-III).
79. The applicant’s statement was published shortly after the parliamentary election in 1992 and the setting up of a new government, and after the proclamation of Slovakia ’s sovereignty. Mr Slobodník had been appointed Minister for Culture and Education.
80. In the statement, the applicant expressed serious concern about maintaining the democratic character of the Slovakian emancipation process. The applicant was particularly worried about the political leaders of Slovakia. He criticised Mr Slobodník for his alleged fascist past, which he considered incompatible with the personal qualities required of a member of the government. The applicant called for the resignation of Mr Slobodník, considering that otherwise Slovakia might find itself isolated because of doubts which might arise as to the government’s democratic intentions.
81. The Court notes that the applicant’s statement was made and published as part of a political debate on matters of general and public concern relating to the history of Slovakia which might have repercussions on its future democratic development. Moreover, although the statement did not indicate the sources, it was based on facts which had been published both by Mr Slobodník himself and by the press prior to the publication of the applicant’s statement.
82. As regards the reasons adduced by the court of cassation to justify the interference with the applicant’s rights, the Court notes that it admitted that Slovakian law characterised the Hlinka Youth as a fascist organisation. Nevertheless, that court found that the applicant’s argument that his statement was a value judgment could only have been accepted if the statement had been accompanied by a reference to the facts on which the applicant had based his conclusion, namely Mr Slobodník’s membership of the Hlinka Youth and his participation in the training course in Sekule. The court of cassation held that in such a case the opinion expressed by the applicant would not have required any proof. Thus, the highest judicial instance deciding on the merits of the relevant part of the case admitted, in substance, that the applicant’s statement was not devoid of a factual basis for the opinion expressed. However, the court of cassation also held that the term “fascist past” implied that a person had propagated or practised fascism in an active manner. Since the applicant had failed to prove that Mr Slobodník had a fascist past in that sense, his statement had unjustifiably infringed Mr Slobodník’s personality rights.
83. The Court emphasises that the promotion of free political debate is a very important feature of a democratic society. It attaches the highest importance to the freedom of expression in the context of political debate and considers that very strong reasons are required to justify restrictions on political speech. Allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned.
84. The applicant’s statement was clearly made in a very political context and one that was crucial for the development of Slovakia. It contained harsh words, but was not without a factual basis. There is nothing to suggest that it was made otherwise than in good faith and in pursuit of the legitimate aim of protecting the democratic development of the newly established State of which the applicant was a national.
85. The Court finds that the applicant’s statement was a value judgment the truthfulness of which is not susceptible of proof. It was made in the context of a free debate on an issue of general interest, namely the political development of Slovakia in the light of the country’s historical background. The statement concerned a public figure, a government minister, in respect of whom the limits of acceptable criticism are wider than for a private individual.
86. As regards the reasons adduced by the court of cassation, the Court cannot accept the proposition, as a matter of principle, that a value judgment can only be considered as such if it is accompanied by the facts on which that judgment is based (see paragraph 35 above). The necessity of a link between a value judgment and its supporting facts may vary from case to case according to the specific circumstances. In the present case, the Court is satisfied that the value judgment made by the applicant was based on information which was already known to the general public, both because Mr Slobodník’s political life was known, and because information about his past was disclosed, by him in his book, and in publications by the press which preceded the statement by the applicant. Nor can the Court subscribe to a restrictive definition of the term “fascist past”. The term is a wide one, capable of evoking in those who read it different notions as to its content and significance. One of them can be that a person participated in a fascist organisation, as a member, even if this was not coupled with specific activities propagating fascist ideals.
87. The court of cassation did not convincingly establish any pressing social need for putting the protection of the personality rights of a public figure above the applicant’s right to freedom of expression and the general interest in promoting this freedom where issues of public interest are concerned. In particular, it does not appear from the domestic courts ’ decisions that the applicant’s statement affected Mr Slobodník ’s political career or his professional and private life.
88. In conclusion, the Court finds that the reasons adduced by the court of cassation cannot be regarded as a sufficient and relevant justification for the interference with the applicant’s right to freedom of expression. The national authorities therefore failed to strike a fair balance between the relevant interests.
89. Accordingly, the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.
90. There has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
91. The applicant further complained that his right to freedom of thought had been violated in that he had been ordered to endure the publication of a text declaring his statement defamatory. He alleged a violation of Article 9 of the Convention which provides:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
92. The Court considers that the impugned measure constituted an interference with the applicant’s exercise of his freedom of expression, which it has examined above under Article 10 of the Convention, and that no separate issue arises in relation to Article 9 in this respect.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
93. The applicant complained that he had been discriminated against on the basis of his political opinion in that the domestic courts had placed an unreasonable burden of proof on him, that they had distorted the definition of the term “fascist”, and that he had had to endure the publication of a text declaring his statement defamatory. He alleged a violation of Article 14 of the Convention which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
94. The Government maintained that the applicant’s complaint of discrimination was unsubstantiated.
95. The Court has examined this complaint in conjunction with Articles 9 and 10 of the Convention but finds no indication that the measure complained of can be attributed to a difference in treatment based on the applicant’s political opinion or any other relevant ground.
96. Accordingly, the Court concludes that there has been no violation of Article 14 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
97. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
98. The applicant claimed 1,000,000 Slovakian korunas (SKK) as compensation for both pecuniary and non-pecuniary damage. He explained that during the time the government of which Mr Slobodník had been a member was in place he had been dismissed from the theatre where he was employed and could not publish his works as the publishers, distributors and booksellers had not wanted to deal with him on account of the negative attitude several officials had shown towards him. The applicant further argued that the loss of income, pressure brought to bear on him and threats against his person had obliged him to move to the Czech Republic and that he had incurred significant costs in this connection.
99. The Government replied that there was no causal connection between the alleged violations of the Convention and the damage claimed.
100. The Court finds that there is not sufficient evidence of a causal link between the violation of Article 10 it has found and the pecuniary damage allegedly sustained by the applicant. This claim must therefore be dismissed.
101. As to the applicant’s claim for non-pecuniary damage, the Court considers that the applicant sustained prejudice as a result of the breach of Article 10, on account of the inconvenience occasioned by the proceedings and decisions in question. Having regard to the relevant circumstances, it awards the applicant SKK 65,000 under this head.
102. The applicant claimed SKK 701,750 for his costs and expenses. This sum included SKK 250,000 as compensation for the costs and expenses incurred by the applicant in the context of the proceedings before the Convention organs.
103. The Government contended that the sum claimed was excessive and that the applicant had not furnished any relevant document in support of this claim.
104. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see, among others, Jėčius v. Lithuania, no. 34578/97, § 112, ECHR 2000-IX). The Court is not satisfied that these conditions are met as regards the applicant’s claims. Since it is obvious that the applicant incurred costs and expenses both at national level and in the proceedings before the Convention organs, the Court, making its assessment on an equitable basis, awards the applicant a total sum of SKK 500,000.
105. According to the information available to the Court, the statutory rate of interest applicable in Slovakia at the date of adoption of the present judgment is 17.6% per annum.
1. Holds by five votes to two that there has been a violation of Article 10 of the Convention;