ECHR judgment of 25 June 2020 in the case "Miljevic v. Croatia" (aplication No. 68317/13).
in 2013, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Croatia.
The case successfully considered an aplication against the applicant's conviction in a criminal defamation case initiated in connection with the applicant's appearance in court during the proceedings in a criminal war crimes case with statements in his defense, in which he accused a third person of initiating criminal prosecution against him, exerting pressure on witnesses and organizing criminal activities to convict him. The case violated the requirements of article 10 of the Convention for the protection of human rights and fundamental freedoms.
CIRCUMSTANCES OF THE CASE
During the trial in the criminal war crimes case, the applicant made statements in his own defense, in which he accused I. P., a third person who was not involved in the proceedings, of initiating criminal proceedings against him, exerting pressure on witnesses and organizing criminal activities to convict him. The applicant was acquitted of war crimes charges, but was later convicted in a criminal defamation case initiated by I. P. in connection with the above-mentioned statements.
Regarding compliance with article 10 of the Convention. (a) the presence of an intervention. Taking into account the fact that the applicant complained specifically about the criminal conviction for defamation against I. P., and that the Croatian courts considered the case from the point of view of an attack on the honor and reputation of I. P., the European Court regarded the applicant's conviction for defamation as an interference with his right to freedom of expression, without losing sight of the consequences for his right to defend himself effectively in the criminal proceedings.
(b) whether the interference was provided for by law, and whether it had a legitimate purpose. The intervention was provided for by law and had the legitimate aim of protecting the reputation and rights of others and ensuring the authority and impartiality of justice.
(c) the Need for a democratic society. The applicant accused I. P. of exerting pressure on witnesses, an act punishable under Croatian law that could clearly tarnish I. P.'s reputation and cause him harm in terms of his social environment, especially given his status as a military officer, a disabled person and a war veteran. In addition, I. P. took the applicant's statements to heart. Consequently, the applicant's charges reached the necessary level of seriousness to cause harm to I. P.'s rights guaranteed by article 8 of the Convention. The court therefore had to examine whether the Croatian authorities had struck a fair balance between the applicant's right to freedom of expression and I. P.'s right to respect for his reputation. In the present case, however, the applicant's right to freedom of expression guaranteed in article 10 of the Convention as a criminal defendant should also have been considered in the light of his right to a fair trial under article 6 of the Convention. In such cases, the discretion of the authorities of the Respondent state in relation to the scope of article 10 of the Convention should be narrower.
On the one hand, taking into account the right of the accused to freedom of expression and the public interest in the proper administration of criminal justice, priority should be given to allowing the accused to speak freely without fear of being prosecuted for defamation when his or her statements relate to statements and arguments made in connection with the exercise of the right to a defence. On the other hand, the less the defendant's statements relate to the case or the exercise of the right to a defence and the more they contain inappropriate or gratuitous attacks on a participant in the proceedings or a third person, the more legitimate the restriction of the right to freedom of expression will be, taking into account the interests of a third party protected by article 8 of the Convention. The statements and arguments of the defendant are protected, unless they constitute malicious accusations against the participant in the proceedings or any third party. The freedom of expression guaranteed to the defence party exists to the extent that it has not made statements that intentionally created false suspicions that a participant in the proceedings or a third party has committed a punishable act. In practice, in making such an assessment, the Court considers it particularly important to consider the seriousness or severity of the consequences for the person concerned by such expressions. The more severe the consequences, the more compelling the factual basis for the person to make the relevant allegations.
(i) the Nature and context of the contested statements. It should be noted that I. P. did not participate in any official capacity in the proceedings in the applicant's criminal case and did not play any formal role in the proceedings, he only attended public court sessions in the applicant's case. In addition, I. P. was a well-known public figure and activist in the field of detecting crimes committed during the war. In this capacity, he advised the editors of the TV show and contacted some of the witnesses in the applicant's criminal case. Thus, he was at the center of public attention in this area of public interest, and therefore, in principle, had to show a higher degree of tolerance for permissible criticism than any other private person.
The statements complained of by I. P. were uttered by the applicant in his last speech during the trial. They related to the defence's arguments and were sufficiently related to the applicant's case and served the purposes of his defence. If the applicant had been able to convince the court with his arguments, this would have raised serious questions about the reliability of the evidence, as well as about the General nature and background of the prosecution's position.
In principle, the defence should be able to speak freely about its impressions of possible influence on witnesses and improper motivation of the prosecution without fear of being subsequently prosecuted for defamation. In the present case, the applicant's allegations did relate to his opinion on the conduct of I. P. it did not matter That I. P. himself had not been questioned as a witness in the applicant's criminal case.
In view of the above, the contested statements were sufficiently relevant to the applicant's protection and thus deserved a higher level of protection under the Convention.
(ii) the Consequences for the I. P. and the factual basis for the contested statements. In the defamation proceedings, the Croatian courts considered the applicant's allegations against I. P. as allegations of fact and decided that they were devoid of sufficient grounds and therefore constituted gratuitous and unsubstantiated attacks. However, they did not sufficiently assess the fact that the applicant had seen that I. P. had been present at some of the court sessions and that I. P. himself had admitted that he had met some of the witnesses. In addition, they did not take into account the outstanding activities of I. P. in this area, and his connection with the television program, which, although he was not directly involved in it, concerned the applicant. Thus, it cannot be considered that the contested statements were devoid of any factual basis in terms of the applicant's arguments regarding the participation of I. P. in his case. Taking into account also the context in which these statements were made, namely the presentation to the court of the defence's arguments in the course of the criminal proceedings, these statements, although excessive, did not constitute a malicious accusation against I. P. Finally, objectively, the applicant's statements had limited consequences for I. P., in particular, since the authorities of the Respondent state did not conduct an investigation into the fact that I. P. might have exerted pressure on witnesses. In addition, despite the fact that I. P. sought medical attention for the stress caused by the applicant's statements, there was no convincing evidence that he suffered or could have objectively suffered from long-term consequences, including for his health.
(iii) the Severity of the sentence imposed. Despite the fact that the applicant was assigned the minimum of the penalties provided for by the relevant legislation, it was nevertheless a criminal conviction.
(iv) Conclusion. The Croatian courts failed to strike a fair balance between the applicant's right to freedom of expression in the context of his right to a defence, on the one hand, and I. P.'s interests in protecting his reputation, on the other. The Croatian authorities did not take into account the increased level of protection that the accused's statements deserved as part of his defence during the criminal proceedings.
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The court awarded the applicant EUR 2,281 in respect of pecuniary damage and held that the finding of a violation of the Convention was in itself sufficient just compensation for non-pecuniary damage.