CASE OF MLADINA D.D. LJUBLJANA v. SLOVENIA
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant, the private company Mladina d.d. Ljubljana, whose registered office is in Ljubljana, is the publisher of the weekly magazine Mladina. 6. On 16 and 22 June 2005 the National Assembly (hereinafter –“Parliament”) examined a draft law on same-sex civil partnerships. At a later date it adopted the Registration of Same-Sex Civil Partnerships Act (hereinafter – “the Act”). During the parliamentary debate on the issue, certain deputies of the Slovenian National Party (hereinafter – “the SNP”), which opposed legal recognition of same-sex partnerships, took the floor in order to express their disagreement with the proposed draft. 7. On 27 June 2005 the Mladina magazine published a one-page article entitled “Registration of Same-Sex Civil Partnerships Act adopted”, with the standfirst: “Right-wingers full of pride, but according to non-governmental organisations the Act is not consistent with the Constitution”, summarising the parliamentary debate preceding the adoption of the Act. The first three paragraphs of the article read as follows: “Last week, the second reading of the proposed Act on the registration of same-sex civil partnerships ended up as a crash course in narrow-mindedness, pervaded by a Stone Age mentality. Our elected representatives were so keen to reject amendments to the draft [and the] actual rights of same-sex oriented citizens that they decided to pass the Act at the third attempt within one single parliamentary session. On Wednesday, the Act came to fruition, the outcome being 44 votes to 3 ... The SNP’s gunslingers ... shone brilliantly during the explanation of their votes. [B.Z.] spouted forth all the same stupidities as at the previous reading (such as that the Act was completely unnecessary, that the Act had been extorted by marginal groups, that there were other groups which merited the legislature’s priority), and touched on the objections against his use of words such as ʻfaggotsʼ and ʻlesbiansʼ a week ago. He stated: ʻWhere I come from, we call them “faggots” and “lesbians”; in Primorska [a region in Slovenia], they are called “kulotini” and in Ljubljana they are “gays”. I am not someone who would change his way of speaking just because he has come to Ljubljana. In Štajerska [another region in Slovenia], we simply have faggots and lesbians.ʼ [S.P.], also from the SNP, assured with a playful smile that there was probably not a single person in the assembly hall who wished for the ‘fruit of their loins to declare themselves to be what we are voting on today, with 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 could follow the breadcrumb trail to Finland or even further, let these ladies and gentlemen also go there to marry. But the biggest victims of this law would be the children of such a marriage: ‘Just imagine a child whose father comes to pick him up from school and greets him with “Heeeeey, I’ve come to take you hooooome! Have you got your coat on yet?’ He accompanied this brilliant remark with a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot, whereas in reality [what it illustrated was] just the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school.” 8. In the second half of the article, the author first described the responses of other parliamentarians to the SNP members’ speeches, and in the last two paragraphs concluded with the views on the newly adopted Act expressed by the non-governmental organisations advocating for the rights of same-sex couples, which mainly deplored the fact that the Act accorded a very limited set of rights to these couples. It ended by reporting the announcement by the representatives of these organisations that they would be challenging the newly adopted Act before the Constitutional Court. 9. On 26 August 2005 the SNP member S.P. brought an action before the Ljubljana District Court for defamation of his honour and reputation against the applicant company, claiming that he had suffered severe mental distress due to the offensiveness of the article. He claimed that the depiction of him as “cerebral bankrupt” was objectively and subjectively offensive, its sole intent being to belittle him. 10. On 20 September 2005 the applicant company replied that it considered its actions to have been 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 had amounted to an insulting attack which degraded homosexuals, and hence the criticism published in Mladina. Nevertheless, the critical article had not been aimed at belittling S.P. as a person, but constituted a reaction to his own extreme statements in similar terms. 11. On 28 February 2006 the Ljubljana District Court held an unsuccessful settlement hearing. 12. On 16 May 2006 another hearing was held at 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 had taken the offensive remarks in Mladina as an attack on his character and had been very hurt by them, especially as he had become the subject of ridicule in his local community. 13. On the same date, 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 (2,921.05 euros (EUR)). 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 critical comments on S.P.’s conduct in the parliamentary debate; however, the term “cerebral bankrupt” had referred to his personal characteristics and was therefore objectively offensive. In the court’s opinion, the use of such offensive language did not simply serve the purpose of imparting information to the public. Moreover, the description in the article did not constitute a serious criticism of S.P.’s work. 14. As to S.P.’s conduct, the court held that the gestures he had used to mimic the behaviour of a homosexual man were simply reminiscent of gestures made by actors to convey the idea of homosexuality. The court neither found S.P.’s speech and conduct to be offensive to homosexuals, nor considered it to have been aimed at promoting prejudice and intolerance against them. It held that S.P. had merely expressed his opinion, which, wrong as it might have been, was not to be regarded as extreme and thus justifying the treatment in the impugned article. 15. Both parties appealed against the judgment before the Ljubljana Higher Court. 16. 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 greater damages. The Higher Court upheld the District Court’s finding that the statements in the impugned article constituted an offensive judgment of S.P.’s personality which he was not required to endure. The court further held that, even assuming that S.P.’s speech had been offensive to homosexuals, that did not justify the applicant company’s crude response aimed at him personally. 17. On 10 November 2007 the applicant company lodged a constitutional complaint with the Constitutional Court. It claimed, inter alia, that the impugned article was to be considered a political satire in which the author had merely expressed his opinion on S.P.’s conduct in a public parliamentary debate. It further maintained that the words “typical attitude of a cerebral bankrupt” had not been aimed at S.P. as a person but at his mimicking of the gestures allegedly typical of homosexual men. 18. On 10 September 2009 the Constitutional Court, by a majority of six votes to 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 associated with the freedom of the press, especially when reporting on matters of great public interest, but found on the facts of the case in issue that the lower courts had appropriately applied the criteria resulting from their own case-law and the case-law of the European Court of Human Rights. The court dismissed the applicant company’s assertion that the criticism in question had not been aimed at S.P. as a person but at his mimicking of homosexuals, concluding that the average reader would understand the remark as an assessment of S.P.’s intelligence and personal characteristics. 19. 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 content of the parliamentary debate and to express a critical opinion of the speeches of the individual deputies. As regards the applicant company’s argument that the offensive statement had been a response to S.P.’s own offensive remarks, the Constitutional Court acknowledged that in such cases sharper criticism might be permissible, but only if there was a sufficient factual basis for it. As the court found no substantive 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 and its author’s offensive characterisation of S.P. had not contributed either to people being informed or to a socially responsible public discussion on the position of homosexuals. 20. Constitutional judge C.R. submitted a dissenting opinion in which he referred to a climate of general tolerance towards intolerant and offensive statements against homosexuals. He further expressed the view that the lower courts had been biased and also that the Constitutional Court had failed to appropriately apply the standards of freedom of the press developed in the case-law of the European Court of Human Rights.