RUJAK v. CROATIA
Inadmissible
Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Mr Vladimir Rujak, is a Croatian citizen of Serbian ethnic origin, who was born in 1981 and lives in Marinići. He is represented before the Court by Mr T. Sabljar, a lawyer practising in Rijeka. 2. The Croatian Government (“the Government”) are represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 8 April 2004 the applicant, who was serving in the Croatian Army at the time, was involved in a quarrel in the Knez Trpimir military barracks in Divulje with two other recruits, Mr I.H. and Mr I.Š. The quarrel was witnessed by a number of other soldiers. At some point during the quarrel the applicant said to I.H. and I.Š.: “I fuck your baptised mother!” 5. It would appear that shortly afterwards corporal D.B. summoned the applicant through a duty officer to report to him concerning the incident. As the applicant refused to do so, corporal D.B. went to look for him and, after having found him, asked why he had not reported to him as instructed. The applicant replied: “This is not my State, I am not its national, I don’t recognise [respect] you, your rank or the Croatian Army!” 6. The applicant repeated this statement in the presence of other officers during a subsequent conversation with the battalion commander, first lieutenant B.V. Asked whether he intended to offend someone’s religion and ethnic origin he replied: “Yes! I fuck your baptised mother! I fuck your Ustaše mother! You all originated from Serbs!” 7. On 6 April 2005 the Split County State Attorney’s Office (Županijsko državno odvjetništvo u Splitu) indicted the applicant before the Split County Court (Županijski sud u Splitu), accusing him of the criminal offence of tarnishing the reputation of the Republic of Croatia, defined in Article 151 of the Criminal Code. 8. At a hearing held on 28 February 2007 the applicant admitted making the above statements, expressed remorse and stated that he considered himself a national of the Republic of Croatia, that he recognised it as his State, and therefore that he also recognised its Army. 9. On the same date, the County Court delivered a judgment whereby it found the applicant guilty as charged and sentenced him to six months’ imprisonment. The relevant part of that judgment reads as follows: “The [value] protected by [proscribing] this criminal offence is the reputation of the Republic of Croatia [and] its dignity, symbolised in the objects [listed in the definition of the offence]. The acts described [therein], that is, exposure to ridicule, contempt and severe disdain, indicate that the law [the Criminal Code] requires grave denigration, malice, hatred and demonstrative disrespect for those values and symbols, such that they would lose their dignity in the eyes of citizens and the world. ... The [court] finds it proven ... that the accused committed the criminal offence defined in Article 151 of the Criminal Code because he publicly exposed the Republic of Croatia and the Croatian people to contempt and severe disdain by saying publicly, ..., in the presence of a large number of people that ... this State (the Republic of Croatia) was not his State, that he did not recognise it, that he was not its national, that he did not recognise the Croatian Army – which is, parenthetically, the foundation of the constitutional integrity and territorial existence of any legally organised state such as the Republic of Croatia – that he did not recognise the legitimacy of his superior officer in the Croatian Army ... and his rank, which [statements] were accompanied by [further statements] which offend religious and national affiliation, such as those in which he said that he fucks their baptised mothers, Ustaše mothers and that they all (Croats, Croatian people) originated from Serbs. Those [statements] indicate severe denigration, malice, hatred and demonstrative disrespect for the values and symbols [listed in the definition of the offence], whereby those values and symbols of the Republic of Croatia, by being treated in such a way in front of citizens (members of the Croatian Army), lost their dignity. [When deciding on a penalty, the court takes into account] the fact that the accused admitted committing the offence, the fact that he [does not have a criminal record], his young age and correct conduct before the court, whereas, as an aggravating circumstance, it takes into account the manner in which the offence was committed, that is, a high level of perseverance and contempt in making the offending statements. Taking into account all the above circumstances ... [the court] sentences the accused to six months’ imprisonment, considering that the purpose of the punishment may, given the type and gravity of the criminal offence, be achieved only by a prison sentence. This prison sentence will, in the opinion of [this court], primarily achieve the purpose of individual prevention, so that the accused will not commit this or a similar offence [in the future]. [It will also meet] the purpose of general prevention by deterring others from committing this or similar offences.” 10. The applicant appealed. He argued that his statements could have been qualified as the criminal offence of insult against recruits I.H. and I.Š. and/or a disciplinary offence of disobedience to his superior officers, rather than the criminal offence of tarnishing the reputation of the Republic of Croatia. Furthermore, his conviction for that criminal offence interfered with his freedom of expression because he had been entitled to express his opinion that Croats had originated from Serbs who had converted to Catholicism. 11. On 11 November 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the first-instance judgment in part and reversed it in part. It upheld the lower court’s finding that the applicant was guilty of the offence in question. However, it overturned the sentence imposed and replaced it with a suspended sentence of six months’ imprisonment with a two-year probation period. The relevant part of the judgment reads as follows: “The argument of the accused that ... the operative part of the contested judgment is incomprehensible and self-contradictory because the facts [of the case] do not correspond to the legal definition of the criminal offence [for which he has been convicted] is unfounded. In explaining this argument, the accused ... claims that cursing I.H. and I.Š.’s baptised mothers constitutes the criminal offence of insult defined in Article 199 of the Criminal Code, that by stating that he did not recognise the Croatian State, the Croatian Army and its officers [he had only] exposed himself to ridicule and contempt and not the Republic of Croatia, its Army or its officers, and that by saying that all Croats had originated from Serbs he [was merely expressing] one possible theory on the ethnogenesis of Croats, which [he] has the right to [do] on the basis of the Croatian Constitution, which, in [its] Article 38, guarantees the freedom of thought and freedom of expression. Contrary to the foregoing, nothing in the appeal of the accused suggests that the operative part of the contested judgment is incomprehensible or contradictory, as the appellant argues ... ... The first-instance court ... did not give sufficient weight to mitigating circumstances, that is, to the fact that the accused [does not have a criminal record], to his young age and correct conduct before the court, which was also demonstrated by his admission that he committed the ... offence and ... clearly expressed remorse for doing so, which suggests that the criminal offence perpetrated by the accused is a result of the impudence of youngsters. The Supreme Court ... therefore considers that in this particular case the purpose of the punishment may be achieved without imposing a prison sentence. For these reasons, the appeal of the accused has to be allowed in part [as regards] the penalty [imposed] and the first-instance judgment [must accordingly be] reversed ...” 12. The applicant subsequently lodged a constitutional complaint alleging, inter alia, a violation of his freedom of expression, guaranteed by Article 38 of the Croatian Constitution. 13. On 9 April 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s complaint inadmissible. It found that even though the applicant relied on the relevant Articles of the Constitution in his constitutional complaint, he had not substantiated his complaint by any constitutional-law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint. The Constitutional Court’s decision was served on the applicant’s representative on 11 May 2010. 14. The relevant parts of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provide as follows: “(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health. (2) Every restriction of rights and freedoms should be proportionate to the nature of the necessity for the restriction in each individual case.” “(1) Freedom of thought and expression shall be guaranteed. (2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and public expression, and free establishment of all media institutions. (3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information. (4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or a statute were breached by public information.” 15. Article 151 of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) reads as follows: “Anyone who publicly exposes the Republic of Croatia, its flag, coat of arms or [national] anthem, the Croatian people, or ... national ... minorities living in the Republic of Croatia to ridicule, contempt or severe disdain, shall be punished by imprisonment from three months to three years.”