Egle Bite against Lithuania. Views of the Human Rights Committee of 24 July 2019 Communication No. 2716/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Lithuania.
The author claimed that the criminal sentence imposed on her for criticizing the prosecutors who carried out the criminal prosecution was a violation of her right to freedom of expression in accordance with article 19, paragraph 2, of the Covenant.
The Committee's legal position: Paragraph 3 of article 19 [of the International Covenant on Civil and Political Rights] allows certain restrictions only in cases where this is provided for by law and is necessary to respect the rights and reputation of others or to protect State security or public order (ordre public), public health or morals. The Committee refers to its general comment No. 34, in which it stated that these freedoms are necessary conditions for the full development of the individual and are essential for any society. They are fundamental elements of any free and democratic society. Any restriction on the exercise of these freedoms must meet strict criteria of necessity and proportionality. Restrictions should be applied only for the purposes for which they were prescribed, and should be directly related to the specific need for which they were intended. The Committee recalls that it is for the State party to demonstrate that restrictions on the author's rights under article 19 are necessary and proportionate (paragraph 8.3 of the Views) (See, for example: Sudalenko and Poplavny v. Belarus (CCPR/C/122/D/2190/2012), paragraph 8.3.).
The Committee notes that, in the interests of the proper administration of justice, the following has previously been recognized - restrictions on the right to freedom of expression pursue legitimate goals, in a number of cases where sentences in criminal cases involving contempt of court have been challenged (See, for example: Fernando v. Sri Lanka (CCPR/C/83/D/1189/2003).). The Committee refers to its general comment No. 34, in paragraph 47 of which the Committee states the following: "It is necessary to take a careful approach to the development of laws relating to libel, to ensure their compliance with the provisions of paragraph 3 [of article 19], and also to prevent them from being used in practice to restrict the right to freedom of expression. All such laws, in particular criminal laws relating to libel, should include such forms of protection that are in the interests of truthfulness, and they should not be applied to such forms of expression that, by their nature, cannot be verified. At least with regard to comments affecting the interests of public figures, efforts should be made to prevent the imposition of penalties for statements that became public by mistake and without malicious intent, or their transfer to the category of illegal. In any case, the presence of public interest in the object of criticism should be considered as an element of protection. States parties should take measures to avoid excessive penalties and fines." At the same time, the Committee recognizes that prosecutors are not equated with public figures and, like judicial officials, need a certain degree of public confidence in order to effectively perform their functions (paragraph 8.7 of the Views).
The Committee refers to its jurisprudence, according to which considerable importance should be attached to the assessment carried out by the State party and it is considered that, as a rule, it is for the authorities of States parties to the Covenant to review and evaluate the facts and evidence to determine the existence of such a danger, unless it is established that such an assessment was clearly arbitrary or amounts to an obvious error or denial of justice (paragraph 8.5 of the Views) (See: C.H. v. Australia (CCPR/C/107/D/1957/2010), paragraph 9.3.).
The Committee's assessment of the factual circumstances of the case: the author's conviction constituted an interference with her right to freedom of expression, and therefore [The Committee] should consider whether the restriction of the author's rights in this case is justified in accordance with any of the criteria set out in paragraph 3 of article 19 [of the International Covenant on Civil and Political Rights] (paragraph 8.2 of the Views).
Regarding the question of whether the interference was provided for by law, the Committee noted that the parties disagreed on the interpretation of domestic legislation, in particular as to whether article 290 of the Criminal Code applies to prosecutors as public servants subject to protection from insults. In this regard, the Committee took note of the State party's arguments that the interference took place under article 290 of the Criminal Code in force at that time, and it was interpreted in accordance with the Commentary to the Lithuanian Criminal Code (According to the Commentary, this provision applies to all persons performing public functions, with the exception of only certain groups of persons who enjoy protection in accordance with certain articles of the Criminal Code.). The Committee also took note of the State party's argument that the Lithuanian Supreme Court had carefully considered the issue and found that the author's interpretation of the law would leave prosecutors without protection, and that this would be contrary to the practice of national courts and the European Court of Human Rights (European Court of Human Rights, Lesnik v. Slovakia.), and also the intentions of the legislature (paragraph 8.4 of the Considerations).
It cannot be argued that the Supreme Court's assessment was arbitrary or amounted to a denial of justice, since the interference in question had a legal basis and the application of the said legal norm to the applicant's case did not go beyond what could reasonably have been foreseen in the circumstances. In this regard, the Committee considered that the interference was provided for by law within the meaning of article 19, paragraph 3, of the Covenant. As for the author's arguments concerning the criminal nature of the Defamation Act and that providing public officials with greater protection from defamation than others should be considered discriminatory, they essentially relate to the question of whether interference with the application of the relevant law in this case was necessary and proportionate (paragraph 8.5 of the Considerations).
As to whether the interference in question had a legitimate purpose, the Committee took into account the State party's argument that article 290 of the Lithuanian Criminal Code is aimed at ensuring the protection of prosecutors in the performance of their specific functions, and this contributes to maintaining public confidence in the administration of justice in general. In the light of these considerations, the Committee is convinced that article 290 can be justified as contributing to the legitimate aim of protecting public order (paragraph 8.7 of the Views).
In assessing the necessity and proportionality of the intervention in the present case, the Committee carefully considered the arguments put forward by both sides. The Committee took into account the arguments of the Supreme Court that the author was convicted not for criticizing prosecutors as such, but for insulting statements addressed to them. However, the Committee noted that some parts of the author's statement were even excluded from the assessment of the national courts because they were vague or deplorable, only an abridged version of what the author said was given, and that no context was provided, as a result of which the entire statement was ambiguous. Moreover, the Committee was not satisfied that due attention was paid to the fact that the statements were made in the context of criminal proceedings in which serious criminal charges against the author were being considered, and they were a spontaneous reaction to the fact that the author should have been detained pending trial. The case attracted widespread public attention and may have had political aspects, and therefore the threshold for criticism contributing to public debate can reasonably be considered higher. The Committee also noted that, although the author was only sentenced to pay a fine and that her criminal record would be dropped, she was nevertheless prosecuted for statements made in connection with her own criminal case. In addition, the imposition of a fine could have become an excessive burden for the author, given her young age and her lack of work at that time. In carrying out its assessment, the Committee referred to its general comment No. 34, in paragraph 47 of which it stated the following: "States parties should consider the possibility of excluding defamation from the category of crimes, but in any case, criminal law should be applied only in connection with the most serious cases, and imprisonment should under no circumstances be considered an adequate punishment." In this regard, the Committee noted that article 290 of the Lithuanian Criminal Code had been in force since January 1, 2017. It was also repealed that article 507 of the new Code of Administrative Offences, applicable to cases similar to the author's case, provided only for administrative sanctions instead of criminal liability. In the light of these considerations, the Committee considered that this particular case could not be considered one of the "most serious cases" and concluded that the restrictions on the author's rights were disproportionate and therefore not justified under the conditions set out in article 19, paragraph 3, of the Covenant (paragraph 8.10 of the Views).
"With regard to the proportionality of this measure, the Committee takes note of the fact that the author disputes the criminal nature of the defamation law on the grounds that, by providing higher protection against defamation to public officials compared to other persons, it is discriminatory. The Committee also notes her contention that the limits of permissible criticism should be wider when a statement concerns the actions of a person in his/her public capacity, and that the right to freedom of expression also provides protection in relation to comments that are to some extent exaggerated or provocative. The Committee also takes note of the author's statement that she was under severe stress at the time she uttered the critical words. The Committee takes note of the alleged damage caused to the author by the negative consequences of her criminal punishment" (paragraph 8.8 of the Views).
"The Committee notes the State party's arguments that the national courts have carefully analyzed the circumstances of this case and concluded that the need to protect public order, namely, to protect the activities of prosecutors that contribute to the proper administration of justice, as well as the need to protect their rights and reputation, are more weighty considerations than the interests of the author in this case. The Committee further notes the State party's argument that, during the assessment, the national authorities took into account that the author's statements were broadcast on television and could be heard by an unlimited number of people, as a result of which the harm caused to the rights and values protected by the purpose of the contested legislation was aggravated. The authorities also duly considered that the author had failed to prove the veracity of her statements. The Committee further takes note of the State party's argument that, as follows from the Supreme Court's decision, the author was convicted not for criticizing prosecutors as such, but for insulting statements. Finally, the Committee takes note of the State party's argument that, despite the fact that the author's statement entailed criminal liability under the relevant Lithuanian legislation in force at the time, the punishment was not criminal in nature, the fine imposed was approximately equal to the minimum amount, and the conviction will be withdrawn after three years" (paragraph 8.9 of the Considerations).
The Committee's conclusions: The facts reveal a violation by the State party of article 19, paragraph 2, of the Covenant (paragraph 10 of the Views).