ECHR Ordinance dated November 8, 2018 in the case of the Organization Narodni List d. (Narodni List d.d.) v. Croatia (application No. 2782/12).
In 2012, the applicant organization was assisted in the preparation of the application. Subsequently, the application was communicated to Croatia.
The case was successfully considered the application of the applicant to impose on him the obligation to compensate for the harm caused by the publication of an article that recognized the discrediting honor of the judge. The case has violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant organization was ordered to pay compensation for publishing information in the weekly newspaper discrediting the judge’s honor. Two years before the publication of the controversial article, the judge ordered the search of the premises of the applicant organization, which, in the opinion of one of the journalists, violated the freedom of journalists. The same judge again attracted the attention of newspaper journalists when he appeared at an evening dedicated to the opening of a new newspaper, founded by a local entrepreneur, whose opinions about the identity were contradictory. As a result, an article was published, which indicated that the judge was in a situation of potential conflict of interest. It referred to the issuance of a search permit two years ago and claimed that the judge should have been "tied to the pillory."
QUESTIONS OF RIGHT
Regarding compliance with Article 10 of the Convention. The present case concerned the freedom of the press in covering the professional activities of judges. Remarks on matters of public interest are usually given a high level of protection. However, it is necessary to take into account the special role of the judiciary in society. As the guarantor of justice, of fundamental value in a state subordinate to the rule of law, justice must enjoy the trust of the public in order to successfully carry out its functions. Consequently, it may be necessary to protect such trust from encroachment, causing him serious damage and by and large unjustified, especially given the fact that judges addressed to criticism are bound by the duty of confidentiality and therefore cannot respond to it. However, judges may be subject to personal criticism within the limits allowed, and not only in a theoretical or general way. In the exercise of official powers, they, therefore, can be the object of criticism in a wider range than ordinary citizens.
The purpose of the controversial article was to draw public attention to issues relating to the functioning of the judicial system. To distinguish between statements of fact and value judgments, it was necessary to take into account all the circumstances of the case and the general nature of the comments, given that statements on matters of public interest could be value judgments rather than statements of facts. The European Court agreed with the conclusion of the Croatian courts that the article contained value judgments. However, since the courts of the respondent State decided that the article was insulting and constituted an unfounded accusation of one particular judge, they further did not consider whether the value judgments contained in the article had sufficient factual grounds.
The European Court rejected the Croatian authorities' argument that the sole purpose of the controversial article was to publicly discredit the judge. The content of the article really left an imprint on the personal experience of journalists and their dissatisfaction with a particular judge, however, under the circumstances, this did not change the fact that the article concerned a matter of public interest. Although the article was caustic and contained serious criticism, exaggeration and harsh metaphor, it was not insulting in its essence. The use of a caustic tone in the comments concerning the judge, in principle, does not contradict the requirements of Article 10 of the Convention.
The present case concerned a situation in which the journalist, in discussing matters of public interest, expressed value judgments that caused damage to the judge’s reputation. The applicant organization was required to pay EUR 6,870 in respect of non-pecuniary damage. It is difficult to assume that an encroachment on the reputation of a judge was of such a level of seriousness that would justify awarding compensation in such a size. The amount of compensation awarded may prevent open discussion of issues of public interest.
Therefore, interfering with freedom of expression was not “necessary in a democratic society.”
The case was a violation of Article 10 of the Convention (adopted unanimously).
In application of Article 41 of the Convention, the Court awarded the applicant organization EUR 5,000 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.