CONSEIL
DE ĽEUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE ĽHOMME
EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF FELDEK v. SLOVAKIA
(Application no. 29032/95)
JUDGMENT
STRASBOURG
12 July 2001
FINAL
12/10/2001
FELDEK v. SLOVAKIA JUDGMENT 1
In the case of Feldek v. Slovakia,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Mr C.L. ROZAKIS, President,
Mr A.B. BAKA,
Mr G. BONELLO,
Mrs V. STRÁŽNICKÁ,
Mr P. LORENZEN,
Mr M. FISCHBACH,
Mr A. KOVLER, judges,
and Mr E. FRIBERGH, Section Registrar,
Having deliberated in private on 15 June 2000 and 21 June 2001,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 29032/95) against the
Slovak Republic lodged with the European Commission of Human Rights
under former Article 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") by a Slovakian
national, Mr Ľubomír Feldek ("the applicant"), on 11 September 1995. The
applicant, who is a poet, writer and publicist, later acquired Czech
nationality.
2. Before the Court, the applicant was represented by Mr E. Valko, a
lawyer practising in Bratislava. The Government of the Slovak Republic
("the Government") were represented by their Agent, Mr R. Fico, who, on
14 April 2000, was succeeded by Mr P. Vršanský.
3. The applicant alleged, in particular, that his rights to freedom of
expression and to freedom of thought had been violated and that he had
been discriminated against in the context of defamation proceedings brought
against him.
4. The application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 § 2 of
Protocol No. 11).
5. The application was allocated to the Second Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
6. By a decision of 15 June 2000 the Chamber declared the application
partly admissible [Note by the Registry. The Courťs decision is obtainable
from the Registry].
2 FELDEK v. SLOVAKIA JUDGMENT
7. The Chamber having decided, after consulting the parties, that no
hearing on the merits was required (Rule 59 § 2 in fine), the parties
submitted additional observations on the merits. In addition, third-party
comments were received from Mr Dušan Slobodník, who had been given
leave by the President to intervene in the written procedure (Article 36 § 2
of the Convention and Rule 61 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. In 1991 Mr Dušan Slobodník, a research worker in the field of
literature, published an autobiography entitled Paragraph: Polar Circle. He
described in it, inter alia, his conviction by a Soviet military tribunal in
1945 on the ground that he had been ordered to spy on the Soviet army after
having been enrolled, in 1944 when he was 17 years old, in a military
training course organised by Germans. In the book, Mr Slobodník also
wrote about his detention in Soviet gulags and his rehabilitation by the
Supreme Court of the Union of the Soviet Socialist Republics in 1960. In
June 1992 Mr Slobodník became Minister for Culture and Education of the
Slovak Republic.
9. On 20 July 1992 the newspaper Telegraf published a poem by the
applicant. It was dated 17 July 1992 (the day when the sovereignty of the
Slovak Republic was solemnly proclaimed) and entitled "Good night, my
beloved" ("Dobrú noc, má milá"). One of its verses read as follows:
"In Prague prisoner Havel is giving up his presidential office. In Bratislava the
prosecutor rules again. And rule by one party is above the law. A member of the SS
and a member of the ŠTB [The ŠTB (Štátna bezpečnosť) was the secret police during
the communist regime in Czechoslovakia] embraced each other."
10. The poem was later published in another newspaper. In separate
articles, two journalists alleged that the expression "member of the SS"
stood for Mr Dušan Slobodník.
11. On 30 July 1992 several newspapers published a statement which the
applicant had distributed to the Public Information Service (Verejná
informačná služba) the day before. It was entitled "For a better picture of
Slovakia ­ without a minister with a fascist past" ("Za lepší obraz
Slovenska ­ bez ministra s fašistickou minulosťou"). It read as follows:
"There has been a problem about how to keep a democratic character in [the
Slovakian] national emancipation process, which we have tried to resolve many times.
Until now, Slovakia has lost most when matters related to the Slovakian nation were in
the hands of the wrong people who led us away from democratic evolution. The cost
FELDEK v. SLOVAKIA JUDGMENT 3
was high: for example, the combatants' lives lost in the Slovakian National Uprising
[in 1944 and 1945] .
Now, we are scared that this mistake could be made again. To say that our way to
Europe is by working together and cooperating in its democratic evolution is not
enough. This is a direct condition arising from international law without the fulfilment
of which no one in Europe will take notice of us.
I expressed this concern in my polemics with Mr Dušan Slobodník last year; life has
finished the writing of our polemics, and my views were proved correct.
This year Mr Slobodník became the Slovak Republic's Minister for Culture and
Education and the next thing was that his fascist past came out in public.
Mr Slobodník managed this situation in a way that allowed the writer Ladislav
Mňačko to prove he was a liar. But he still has not given up his ministerial post,
although in any other democratic country he would have had to do so a long time ago.
Does Mr Slobodník think that Slovakia is some special exception and that it is the
only country having the right to revise the philosophy of the Nuremberg trials, which
is binding on the post-war development of all other European countries? Or is the
message of the Slovakian National Uprising not correct? ... Does Mr Mečiar think that
having this minister in the government will help him to persuade people in Europe that
his talk about the democratic intentions of his government is serious? Is it good to
have Mr Slobodník in the government when this fact will lead to the political,
economic and cultural isolation of Slovakia?
Mr Slobodník likes to use every chance to talk about improving the image of
Slovakia around the world. I fully agree with him on this. He has a personal
opportunity to do something in order to improve the image of Slovakia: to resign."
12. On 5 August 1992 Mr Slobodník publicly declared that he would sue
the applicant for the above statement.
13. In an interview published in the Czech daily Lidové noviny on
12 August 1992 the applicant stated, inter alia:
"... when I speak of the fascist past [of Mr Slobodník], I do not characterise him, I
only think that the fact that he attended a terrorist training course organised by the SS
falls within the term `fascist pasť. I consider that such a person has nothing to do in
the government of a democratic State ..."
14. In the context of the nomination of Mr Slobodník to a post in the
government, issues relating to his past were taken up by several Slovakian
and Czech newspapers both before and after the publication of the
applicanťs statement. Articles concerning this subject were also published
in The New York Times, on 22 July 1992, the Tribune de Genve, on
18 September 1992, Izvestia on 31 August 1992, as well as by the Austrian
Press Agency. The New York Times, the Tribune de Genve and Izvestia later
published the reaction of Mr Slobodník to their respective articles.
15. On 9 September 1992 Mr Slobodník sued the applicant for
defamation under Article 11 et seq. of the Civil Code before the Bratislava
City Court (Mestský súd). He later extended the action and alleged that the
4 FELDEK v. SLOVAKIA JUDGMENT
verses "In Bratislava the prosecutor rules again. And rule by one party is
above the law. A member of the SS and a member of the ŠTB embraced
each other" from the applicanťs poem referred to him. He also alleged that
the above-mentioned statement published in the newspapers wrongly
referred to his fascist past. The plaintiff claimed that the applicant should
bear the costs of publication of an apology in five newspapers and also pay
him 250,000 Slovakian korunas (SKK) as compensation.
A. Proceedings before the Bratislava City Court
16. On 18 October 1993 the Bratislava City Court dismissed the action.
It established that the plaintiff had been a member of the Hlinka Youth
(Hlinkova mládež) and that in February and March 1945 he had participated
in a terrorist training course in Sekule. It observed that the Hlinka Youth had
been a military corps of the Hlinka Slovakian People's Party (Hlinkova
slovenská ľudová strana) and that under the law then in force the Slovak
nation had participated in the exercise of State power through the
intermediary of that party. The court pointed out that, under Article 5 of
Presidential Decree no. 5/1945 of 19 May 1945, legal persons which had
deliberately promoted the war waged by Germany and Hungary or had
served fascist and Nazi aims were to be considered unworthy of the State's
trust.
17. The City Court further established that in May 1945 a military
tribunal of the Soviet army had sentenced Mr Slobodník to fifteen years'
imprisonment on the ground that he had attended the training course in
Sekule and had been ordered, on 22 March 1945, to cross the front line and
to spy on Soviet troops. The military tribunaľs judgment further stated that
Mr Slobodník had not crossed the front line but had gone home in April
1945, when he had been arrested. The City Court also noted that the plaintiff
had served the sentence in Soviet camps until his release in 1953. In 1960
the Supreme Court of the USSR had quashed the sentence and discontinued
the proceedings for the lack of factual elements of an offence.
18. Before the City Court, Mr Slobodník claimed that he had been a
member of the Hlinka Youth only for a short time and that he had joined the
organisation only because it had been a prerequisite for his participation in a
table-tennis tournament. He further explained that he had been summoned
to the training course in Sekule and that he had complied with the summons
out of fear for himself and his family. Mr Slobodník alleged that he had
been excluded from the course as being unreliable after he had expressed his
negative opinion about it. He had then been taken to the Hlinka Youth
headquarters in Bratislava, from where he had been allowed to return home
to Banská Bystrica under the condition that he would report on the Soviet
army. However, the City Court did not find these facts established. In
FELDEK v. SLOVAKIA JUDGMENT 5
particular, it did not consider as relevant evidence the description of the
events contained in the plaintiff's book Paragraph: Polar Circle, which had
been published earlier. In its view, the fact that the 1945 sentence had been
quashed did not prove that the plaintiff had not been a member of the Hlinka
Youth and that he had not attended the training course in Sekule.
19. The City Court also noted that the relevant period of Mr Slobodník's
life had been covered by the press both in Slovakia and abroad prior to the
applicanťs statement, and that on several occasions Mr Slobodník himself
had commented and given interviews on those issues, both in Slovakia and
abroad. The court concluded that, in the statement, the applicant had
expressed his opinion on the basis of information which had already been
published in the press. The statement concerned a public figure who was
inevitably exposed to close scrutiny and sometimes also to criticism by
other members of society. By making the statement, the applicant had
exercised his right to freedom of expression and he had not unjustifiably
interfered with the plaintiff's personality rights.
B. Appeal proceedings
20. Mr Slobodník appealed to the Supreme Court (Najvyšší súd),
alleging that the applicant had not proved that he had a "fascist past", and
that the City Court had not established the meaning of that term.
Mr Slobodník argued that he had been summoned to the training course in
Sekule by an order and that he had left it at the first opportunity after he had
learned about its real purpose. He also explained that martial law had been
in force at the material time and that people had been unlawfully executed
or detained. Members of the Hlinka Youth had been incorporated in the
armed forces by a presidential order and had fallen under military judicial
and disciplinary rules. The plaintiff maintained that he had done nothing
against his homeland or the anti-fascist allies and concluded that the
applicanťs statement and poem were defamatory.
21. The applicant contended, in particular, that the courts should
abandon their established practice according to which the defendant has to
prove the truthfulness of his statements in defamation proceedings. He
maintained that the burden of proof should be shifted onto the plaintiff or
shared between the parties. The applicant further argued that his statement
was a value judgment based on the undisputed facts that the plaintiff had
been a member of the Hlinka Youth and that he had attended a terrorist
training course in Sekule. It was irrelevant to what extent the plaintiff had
been involved in the activities of the Hlinka Youth or for how long he had
been a member of it. What mattered was that the plaintiff had voluntarily
joined the organisation and that, after his alleged exclusion from the training
course in Sekule, he had undertaken, as shown by the Soviet military
tribunaľs judgment of 19 May 1945, to provide information on the
6 FELDEK v. SLOVAKIA JUDGMENT
movements of Soviet troops to the headquarters of the Hlinka Youth. The
applicant therefore proposed that the appeal be dismissed.
22. On 23 March 1994 the Supreme Court reversed the first-instance
judgment, ruling as follows:
"... [the applicant] has to accept that ... Dušan Slobodník will distribute, if he thinks
fit, to the Press Agency of the Slovak Republic as well as to five newspapers of his
choice, both in Slovakia and abroad, the following declaration to be published at [the
applicanťs] expense:
`(1) [The applicanťs] statement addressed to [the Public Information Service] and
published in daily newspapers on 30 July 1992 which reads: "...This year
Mr Slobodník became the Slovak Republic's Minister for Culture and Education and
the next thing was that his fascist past came out in public ... Does Mr Slobodník
think that Slovakia is some special exception and that it is the only country having
the right to revise the philosophy of the Nuremberg trials, which is binding on the
post-war development of all other European countries? ..."
(2) The occasional poem ... entitled "Good night, my beloved" in its part "... In
Bratislava the prosecutor rules again. And rule by one party is above the law. A
member of the SS and a member of the ŠTB embraced each other ..."
... represent a gross slander and disparagement of the civil honour and life, and an
unjustified interference with the personality of the plaintiff Dušan Slobodník.'
...
(4) [The applicant] is liable to pay SKK 200,000 to the plaintiff in respect of nonpecuniary
damage. ...' "
23. The applicant was also ordered to pay costs and the other party's
expenses.
24. The Supreme Court noted that the plaintiff had described the
relevant events in his book Paragraph: Polar Circle before the dispute
concerning his past had arisen, and that no other relevant facts had been
established in the course of the proceedings.
25. In the appellate courťs view, the term "fascist past" was equivalent
to the statement that a person was a fascist in the past. The court considered
that the applicant himself had given a restrictive interpretation of that term
in connection with the plaintiff, namely the interpretation according to the
philosophy of the Nuremberg trials. This philosophy was derived from the
multilateral agreement of 8 August 1945, which included also the statute of
the International Military Tribunal, and which had become part of the
Czechoslovakian legal order on 2 October 1947. The Supreme Court held
that it was bound by the principle of individual responsibility set out in that
agreement.
26. The Supreme Court further studied all available documents and
evidence used during the Nuremberg trials relating to Slovakia. It found no
FELDEK v. SLOVAKIA JUDGMENT 7
reference in those documents to the Hlinka Youth in connection with fascist
organisations. It established that the propagation or implementation of
fascist theories had not been inherent in the statutory rules and regulations
governing the Hlinka Youth. If some persons had abused the Christian
principles on which the organisation had been built, this had contravened
the rules then in force. Such persons and, as the case might be, those who
had let themselves be abused for criminal purposes, were individually
responsible. However, such was not the case of the plaintiff. The Supreme
Court accepted the latter's argument that he had learned about the character
of the training course in Sekule only after he had started attending it.
27. The appellate court found irrelevant the reference, in the firstinstance
courťs judgment, to Presidential Decree no. 5/1945 of 19 May
1945 as that decree had only concerned property, in that it had placed under
national administration the property of persons whom the State had
considered unreliable.
28. The Supreme Court recalled that, at the relevant time, criminal and
moral liability had been governed by Order no. 33 on the punishment of
fascist criminals, occupants, traitors and collaborators and on the
establishment of the people's judiciary adopted by the Slovakian National
Council on 15 May 1945 and also by Presidential Decree no. 16/1945 of
19 June 1945 on the punishment of Nazi criminals, traitors and their
assistants and on extra-ordinary people's courts. These rules were partly
based on the principle of collective liability, but they did not mention the
Hlinka Youth.
29. As regards the poem by the applicant, the Supreme Court noted that
it was dated 17 July 1992, that is, the day on which the sovereignty of the
Slovak Republic had been proclaimed from the balcony of the Slovakian
National Council, where Mr Slobodník had also been present. Shortly
afterwards, the applicant had written his statement concerning
Mr Slobodník's past and two journalists had interpreted the poem as a
description of the scene during the proclamation. They had alleged that by
"member of the SS" the applicant had meant to designate Mr Slobodník.
The court therefore concluded that the applicant had infringed the plaintiff's
personality rights by his poem as well as by his statement of 29 July 1992.
30. The applicanťs request that the burden of proof in the case should be
shifted onto the plaintiff or at least shared between the parties was not
accepted as it had no basis in domestic law and practice. The Supreme Court
concluded that the applicant had not proved that Mr Slobodník had been a
fascist in the past, holding that the latter had joined the Hlinka Youth
because he had wanted to participate in sports activities and had not been
motivated by fascist sympathies. As to the training course in Sekule, it
found that Mr Slobodník had not completed it, and it was irrelevant whether
he had been excluded or had left it on his own initiative. The only relevant
8 FELDEK v. SLOVAKIA JUDGMENT
fact was that the plaintiff's past could not be considered fascist from that
point of view.
C. Proceedings concerning the applicanťs appeal on points of law
31. The applicant filed an appeal on points of law alleging, inter alia, a
violation of his rights under Article 10 of the Convention. He claimed that
the Supreme Court should have concluded from the relevant provisions of
Presidential Decree no. 5/1945 that the Hlinka Youth was a fascist
organisation and that, in accordance with the relevant provisions of the
Slovakian National Counciľs Orders nos. 1/1944 and 4/1944, participation
in any activity within the Hlinka Youth was to be considered as participation
in an unlawful fascist organisation. He further complained that the Supreme
Court had not established with sufficient certainty whether the plaintiff had
actually been excluded from the training course in Sekule, and whether he
had undertaken to carry out terrorist activities or not.
32. On 25 May 1995 a different Chamber of the Supreme Court sitting
as a court of cassation upheld the part of the appeal judgment of 23 March
1994 according to which the plaintiff was entitled to arrange for publication
of the text set out in it and concerning the applicanťs statement of 29 July
1992. As for the remainder, the court of cassation quashed both the first and
second-instance judgments and sent the case back to the Bratislava City
Court.
33. The court of cassation did not share the applicanťs view that the
plaintiff should be required to prove that the applicanťs allegations were
untrue. It further held that a person could be considered as having a fascist
past only if he or she had propagated or practised fascism in an active
manner. Mere membership of an organisation and participation in a terrorist
training course which had not been followed by any practical actions could
not be characterised as a fascist past.
34. As the applicant had failed to prove that the plaintiff had a fascist
past within the above meaning, the court found that his statement had
infringed without justification the plaintiff's personality rights. In the
judgment, the court admitted that Slovakian law characterised the Hlinka
Youth as a fascist organisation. It recalled, however, that the relevant legal
rules, including those relied on by the applicant, applied to natural persons
only where justified by their specific actions. Applying those rules to all
members of such organisations without considering their actual deeds would
entail the recognition of their collective guilt. It recalled that children over
the age of 6 had been admitted to the Hlinka Youth.
35. The court considered that the applicanťs argument according to
which his statement was a value judgment could only have been accepted if
FELDEK v. SLOVAKIA JUDGMENT 9
the applicant had expressly referred, in that statement, to the particular facts
on which such a value judgment was based. The court stated, inter alia:
"Indicating that the plaintiff has had a fascist past is not a value judgment based on
an analysis of facts, but an allegation (statement) made without any concurrent
justification of factual circumstances from which a conclusion can be inferred by the
person making the judgment. It could have been a value judgment if the statement [of
the applicant] had been accompanied by reference to the [plaintiff's] membership of
the Hlinka Youth and his participation in the training course, namely, to the activities
which the person making the judgment considers to constitute a fascist past. Only such
a statement, based on circumstantial facts used by the person making the judgment,
would be a value judgment the truthfulness of which would not require any proof.
Only such an interpretation will guarantee a balance between the freedom of
expression and the right to the protection of [a person's] reputation within the meaning
of Article 10 of the Convention."
36. The court then found the restriction on the applicanťs freedom of
expression compatible with the requirements of Article 10 § 2 of the
Convention as it was necessary for the protection of the plaintiff's
reputation in accordance with Articles 11 et seq. of the Civil Code.
37. As to the poem, the court of cassation quashed both the first and
second-instance judgments for lack of evidence and held that in further
proceedings the plaintiff would have to prove that the applicant had referred
to him in the poem. It also quashed the part of the appeal concerning
compensation for non-pecuniary damage and costs since their award
depended on an assessment of both the interferences complained of by the
plaintiff.
D. Further proceedings
38. On 15 April 1996 the Bratislava City Court reached a new decision
on the remainder of the case. It stayed the proceedings as far as the poem
was concerned on the ground that the plaintiff had withdrawn that part of
the action.
39. The City Court further dismissed the claim in respect of nonpecuniary
damage as it did not find it established that the applicanťs
statement had considerably diminished the plaintiff's dignity and position in
society within the meaning of Article 13 § 2 of the Civil Code. In its view,
the plaintiff had failed to show that the considerable publicity concerning
his person had arisen as a result of the applicanťs statement and not, as the
case might be, as a consequence of newspaper articles and the plaintiff's
book published prior to the applicanťs statement.
40. Having considered to what extent the parties had been successful in
the proceedings, the City Court ordered the plaintiff to pay SKK 56,780 to
the applicant in reimbursement of the relevant part of the latter's costs. The
applicant and the plaintiff were further ordered to pay respectively SKK 875
and 2,625 in reimbursement of the costs paid in advance by the court.
10 FELDEK v. SLOVAKIA JUDGMENT
41. On 25 November 1998 the Supreme Court upheld the decision of the
Bratislava City Court to discontinue the proceedings in respect of the poem
and to dismiss the plaintiff's claim for non-pecuniary damage. The Supreme
Court held that neither party was entitled to have the costs reimbursed. It
further ordered each party to pay half of the costs paid in advance by the
State, namely SKK 1,750. Mr Slobodník filed an appeal on points of law.
The proceedings are pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Presidential Decree no. 5/1945
42. The above decree was issued by President Beneš on 19 May 1945
and concerned, inter alia, the placing under national administration of the
property of "Germans, Hungarians, traitors and collaborators and of certain
organisations and institutions".
43. Article 4 (b) qualifies as unworthy of the State's trust
"persons who carried out activities directed against State sovereignty, the
independence, integrity, democratic and republican form of the State, or the security
and defence of the Czechoslovak Republic, who incited other persons to take part in
such activities and deliberately supported the German and Hungarian occupants in any
way whatsoever. Persons falling under this category shall include, for example, ...
leading representatives of ... the Hlinka Youth ... and other fascist organisations of a
similar nature."
44. Article 5 qualifies as being unworthy of the State's trust those legal
persons whose administrations had deliberately promoted the conduct of
war by Germany and Hungary or served fascist and Nazi aims.
B. The Civil Code and the relevant practice
45. The right to protection of a person's dignity, honour, reputation and
good name is guaranteed by Articles 11 et seq. of the Civil Code.
46. According to Article 11, any natural person has the right to
protection of his or her personality, in particular of his or her life and health,
civil and human dignity, privacy, name and personal characteristics.
47. According to Article 13 § 1, any natural person has the right to
request that unjustified infringement of his or her personality rights should
be stopped and the consequences of such infringement eliminated, and to
obtain appropriate satisfaction.
48. Article 13 § 2 provides that, in cases where the satisfaction obtained
under Article 13 § 1 is insufficient, in particular because a person's dignity
FELDEK v. SLOVAKIA JUDGMENT 11
and position in society has been considerably diminished, the injured person
is entitled to compensation for non-pecuniary damage.
49. In accordance with the established practice, a plaintiff in defamation
proceedings has to prove that the defendanťs allegations were objectively
capable of affecting his or her rights under Article 11 of the Civil Code. If
this requirement is met, the defendant is obliged to produce evidence
capable of proving the truth of his or her allegations if the defence is to
succeed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
50. The applicant complained that his right to freedom of expression had
been violated in that the courts had granted Mr Slobodník's action
concerning the statement published on 30 July 1992. He alleged a violation
of Article 10 of the Convention which provides:
"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
A. Existence of an interference
51. The Court finds that it is clear and undisputed that there has been an
interference with the applicanťs right to freedom of expression in that the
relevant judicial decisions declared the applicanťs statement defamatory
and ordered him to endure the publication of this conclusion in five
newspapers of the plaintiff's choice.
B. Justification of the interference
12 FELDEK v. SLOVAKIA JUDGMENT
52. This interference would contravene Article 10 of the Convention
unless it was "prescribed by law", pursued one or more of the legitimate
aims referred to in paragraph 2 of Article 10, and was "necessary in a
democratic society" for achieving such aim or aims. The Court will examine
each of these criteria in turn.
1. "Prescribed by law"
53. The applicant contended that the legal basis for the restriction of his
freedom of expression was not sufficiently foreseeable as required by the
Courťs case-law. He alleged, in particular, that Slovakian law, as interpreted
and applied by the domestic courts, does not adequately define what is
defamation in that it does not distinguish between value judgments and facts
and between public officials and private persons. The foreseeability of the
restriction could also be questioned because the applicant had justifiably
believed that the national courts would proceed in compliance with the caselaw
under the Convention relating to the notions of fair comment and
burden of proof in similar cases.
54. The Government disagreed and maintained that the interference was
prescribed by law, namely, by Articles 11 et seq. of the Civil Code.
55. As to the applicanťs argument that the domestic courts failed to
proceed in compliance with the case-law under the Convention, the Court
finds that this issue falls to be examined below when determining whether
the interference was "necessary in a democratic society".
56. To the extent that the applicant alleges that the relevant law was not
sufficiently foreseeable, the Court recalls that one of the requirements
flowing from the expression "prescribed by law" is the foreseeability of the
measure concerned. A norm cannot be regarded as a "law" unless it is
formulated with sufficient precision to enable the citizen to regulate his
conduct: he must be able ­ if need be with appropriate advice ­ to foresee,
to a degree that is reasonable in the circumstances, the consequences which
a given action may entail. Those consequences need not be foreseeable with
absolute certainty: experience shows this to be unattainable. Whilst certainty
in the law is highly desirable, it may bring in its train excessive rigidity and
the law must be able to keep pace with changing circumstances.
Accordingly, many laws are inevitably couched in terms which, to a greater
or lesser extent, are vague and whose interpretation and application are
questions of practice (see, for example, Rekvényi v. Hungary [GC],
no. 25390/94, § 34, ECHR 1999-III).
57. The interference complained of had a legal basis, namely Articles 11
and 13 § 1 of the Civil Code. Under the latter provision, any natural person
may request that unjustified infringement of his or her personality rights
within the meaning of Article 11 of the Civil Code should be stopped, that
the consequences of such interference should be eliminated and that he or
FELDEK v. SLOVAKIA JUDGMENT 13
she should be granted appropriate satisfaction. It is within the national
courts' discretion to consider any specific complaint of an alleged
infringement and to decide on the appropriate satisfaction. In accordance
with the established practice, a plaintiff in defamation proceedings has to
prove that the defendanťs allegations were objectively capable of affecting
his or her rights under Article 11 of the Civil Code, in which case the
defendant is required to produce evidence capable of proving the truth of his
or her allegations if the defence is to succeed. The Court is satisfied that the
application of these legal provisions and practice to the applicanťs case did
not go beyond what could reasonably be foreseen in the circumstances.
Accordingly, the interference was "prescribed by law" within the meaning
of Article 10 § 2 of the Convention.
2. Legitimate aim
58. The Court finds, and this was not in dispute between the parties, that
the grounds relied on by the Slovakian courts were consistent with the aim
of protecting the personality rights of the plaintiff, who considered himself
affected by the applicanťs statement. The interference therefore had a
legitimate aim for the purposes of paragraph 2 of Article 10, namely, to
protect "the reputation or rights of others".
3. "Necessary in a democratic society"
(a) Arguments before the Court
(i) The applicant
59. The applicant maintained that the interference had not been
"necessary in the democratic society" because the domestic courts had
failed to respect the principle of proportionality between the restriction of
freedom of expression and the objective set out in Article 10 § 2 of the
Convention. In particular, he had been sanctioned for criticism of a member
of the government in respect of whom the limits of acceptable criticism
should be wider than in respect of a private individual. He further argued
that a free political debate is the core concept of a democratic society, that
the discussions about political issues deserve a greater protection than nonpolitical
discussions and that, consequently, the State has very narrow
margins for restricting such expression.
60. The applicant submitted, with reference to the Courťs case-law, that
the freedom of expression was applicable also to information or ideas that
offend, shock or disturb and that journalistic freedom also covered possible
recourse to a degree of exaggeration, or even provocation.
61. His statement about the past of Mr Slobodník was a value judgment
which he had formulated after he had learned, through the media and from
14 FELDEK v. SLOVAKIA JUDGMENT
the book written by Mr Slobodník, that the latter had been a member of the
Hlinka Youth and had participated in a terrorist training course in Sekule.
The applicant deemed it necessary to express his opinion to the public, who
have the right to be informed about the past of a public figure. He did not
act in bad faith, making the statement on the basis of widely known facts
which, as he believed, justified using the term "fascist past".
62. In the applicanťs view, the Supreme Courťs opinion according to
which his statement could have been considered a value judgment only if he
had simultaneously referred to the facts on which it had been based was too
restrictive and erroneous. He contended that the burden of proof imposed on
him in conformity with the domestic practice had been in violation of his
right to freedom of expression. In this regard he argued, in particular, that (i)
the Supreme Court had denied him the means of proving the truthfulness of
his allegations by distorting what constituted a fascist past or, in the
alternative, had unlawfully denied him a reasonable margin of error for
making statements about a member of the government which were not
devoid of foundation or good faith, and (ii) he had been required to prove
the truthfulness of his opinion expressed in the statement even though
statements of opinion are not susceptible of proof.
63. Finally, the applicant underlined that his statement had been made in
the context of a free political debate and that it involved a matter of public
interest, namely the assessment of a politician's past. The statement pursued
a legitimate objective, namely to show that, if there was even a shadow of
suspicion, the person concerned should not hold any public position. It also
concerned, in a broader context, the history of Slovakia during the Second
World War, which is still a topical issue in Slovakia. The applicant
concluded that his right to freedom of expression had been violated.
(ii) The Government
64. The Government argued that the interference was proportionate to
the legitimate aim pursued and that the reasons adduced by the domestic
courts were sufficient and relevant. In their view, labelling a politician as a
person with a fascist past could have a serious impact on the reputation of
the person concerned.
65. They submitted that the applicant had made his statement shortly
after the parliamentary election of 1992 and after Mr Slobodník had become
the Minister for Culture and Education. According to the Government, the
applicant had learned all about Mr Slobodník's past long before the election
from the latter's book. Apart from the statement about Mr Slobodník's
alleged fascist past, the applicant had not mentioned any other relevant
facts, such as that Mr Slobodník had been 17 years old in 1945, the reasons
for his participation in the terrorist training course, his exclusion from the
course, his later conviction and eight-year incarceration in Soviet camps,
FELDEK v. SLOVAKIA JUDGMENT 15
and finally the decision of 1960 of the Supreme Court of the USSR by
which Mr Slobodník's conviction had been quashed on the ground that he
had committed no offence. In addition, the comparison of Mr Slobodník's
conduct and fascist history had not been based on precise or correct facts,
nor had it corresponded to a bona fide evaluation of the relevant facts.
66. The Government recalled that the national courts had not required
the applicant to publish an apology, that they had given the plaintiff the
possibility of having the declaration of the defamatory character of the
applicanťs statement published in five newspapers at the cost of the
applicant who had, therefore, only been required to endure the exercise of
the plaintiff's right in this respect.
67. Finally, the Government pointed out that the case attracted the
attention of the public at large in Slovakia and underlined that the Courťs
decision on the merits of the present application would be important for the
Slovakian courts when deciding on similar issues.
(iii) Mr Slobodník
68. In his comments submitted under Article 36 § 2 of the Convention
and Rule 61 § 3 of the Rules of Court, Mr Slobodník observed that he had
written his book Paragraph: Polar Circle between 1989 and 1990, that is,
when he had been a research worker in the field of literature, and that it had
been published in 1991. The book contained a detailed description of the
relevant events which, in Mr Slobodník's view, the applicant had failed to
take into consideration when making his statement. In this context,
Mr Slobodník maintained, in particular, that (i) he had joined the Hlinka
Youth after he had won, in May 1944, a regional table-tennis championship,
as membership of the organisation had been a prerequisite for his
participation in the ensuing all-Slovakian tournament, and (ii) in 1944, after
the Slovakian National Uprising had been suppressed and martial law had
been declared, he and his mother had helped four foreign partisans to escape
from a German hospital.
69. As to the training course in Sekule, Mr Slobodník had to comply
with the summons by the headquarters of the Hlinka Youth for fear of
reprisals. He futher explained that he had learned about the real purpose of
the course only after his arrival in Sekule, that he had attended it only for
some ten or twelve days and that he had been excluded after he had
expressed his negative attitude towards the course. Subsequently he had
promised the representatives of the Hlinka Youth headquarters to provide
them with information concerning the Soviet army as he had wanted to get
back home. He had not, however, carried out any spying. Mr Slobodník
submitted that these facts were supported by the relevant documents kept in
the archives and that the courts at second and third instance had held them
to be established.
16 FELDEK v. SLOVAKIA JUDGMENT
70. According to Mr Slobodník, the applicant had distorted the relevant
facts and had made the statement about his past because they had started
having different political views in the context of the 1992 parliamentary
election. Mr Slobodník contended that, while the applicant had publicly
referred to his book in 1991 as having been "written by the kind, forgiving
pen of a Christian", it had become for him the proof of Mr Slobodník's
fascist past one year later. The applicant had not, therefore, made his
statement in good faith.
71. Finally, Mr Slobodník asserted that by linking his past to the
Nuremberg trials the applicant had grossly interfered with his privacy.
Moreover, the applicant had criticised his past and not his actions as
a member of the government. Mr Slobodník concluded that the interference
with the applicanťs right to freedom of expression had been justified.
(b) The Courťs assessment
(i) The relevant principles
72. According to the Courťs case-law, freedom of expression constitutes
one of the essential foundations of a democratic society and one of the basic
conditions for its progress and for each individuaľs self-fulfilment. Subject
to paragraph 2 of Article 10, it is applicable not only to "information" or
"ideas" that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or disturb.
Article 10 protects not only the substance of the ideas and information
expressed but also the form in which they are conveyed. This freedom is
subject to the exceptions set out in Article 10 § 2, which must, however, be
construed strictly (see Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 43, ECHR 1999-VIII, and Lehideux and Isorni v. France, judgment of
23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2886,
§ 52).
73. The test of "necessity in a democratic society" requires the Court to
determine whether the "interference" complained of corresponded to a
"pressing social need", whether it was proportionate to the legitimate aim
pursued and whether the reasons given by the national authorities to justify
it are relevant and sufficient. In assessing whether such a "need" exists and
what measures should be adopted to deal with it, the national authorities are
left a certain margin of appreciation. This power of appreciation is not,
however, unlimited but goes hand in hand with a European supervision by
the Court, whose task it is to give a final ruling on whether a restriction is
reconcilable with freedom of expression as protected by Article 10. The
Courťs task in exercising its supervisory function is not to take the place of
the national authorities, but rather to review under Article 10, in the light of
the case as a whole, the decisions they have taken pursuant to their power of
FELDEK v. SLOVAKIA JUDGMENT 17
appreciation. In so doing, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the principles
embodied in Article 10 and, moreover, that they based their decisions on an
acceptable assessment of the relevant facts (see Vogt v. Germany, judgment
of 26 September 1995, Series A no. 323, pp. 25-26, § 52, and Jerusalem v.
Austria, no. 26958/95, § 33, ECHR 2001-II, with further references).
74. The Court further recalls that there is little scope under Article 10 § 2
of the Convention for restrictions on political speech or on debate on
questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95,
§ 61,ECHR 1999-IV). Moreover, the limits of acceptable criticism are wider
as regards a politician as such than as regards a private individual. Unlike
the latter, the former inevitably and knowingly lays himself open to close
scrutiny of his words and deeds by journalists and the public at large, and he
must consequently display a greater degree of tolerance (see Lingens v.
Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42, or Incal v.
Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54).
75. In its practice, the Court has distinguished between statements of
fact and value judgments. While the existence of facts can be demonstrated,
the truth of value judgments is not susceptible of proof. The requirement to
prove the truth of a value judgment is impossible to fulfil and infringes
freedom of opinion itself, which is a fundamental part of the right secured
by Article 10 (see Lingens, cited above, p. 28, § 46, and Oberschlick v.
Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 27, § 63).
76. Where a statement amounts to a value judgment, the proportionality
of an interference may depend on whether there exists a sufficient factual
basis for the impugned statement, since even a value judgment without any
factual basis to support it may be excessive (see De Haes and Gijsels
v. Belgium, judgment of 24 February 1997, Reports 1997-I, p. 236, § 47, and
Jerusalem, cited above, § 43).
(ii) Application of the aforementioned principles to the instant case
77. In the present case, the Court is called upon to examine the
applicanťs complaint that the judgment of the court of cassation whereby he
was obliged to endure the publication of a text declaring his statement
defamatory interfered with his freedom of expression in violation of
Article 10 of the Convention. In exercising its supervisory jurisdiction the
Court must look at the impugned interference with the applicanťs right to
freedom of expression in the light of the case as a whole, including the
content of the statement concerned, the context in which it was made and
also the particular circumstances of those involved.
78. As a matter of general principle, the "necessity" for any restriction
on freedom of expression must be convincingly established. Admittedly, it is
in the first place for the national authorities to assess whether there is a
"pressing social need" for the restriction. In cases concerning the press, the
18 FELDEK v. SLOVAKIA JUDGMENT
national margin of appreciation is circumscribed by the interest of
democratic society in ensuring and maintaining a free press. Similarly, that
interest will weigh heavily in the balance in determining, as must be done
under paragraph 2 of Article 10, whether the restriction was proportionate to
the legitimate aim pursued (see Thoma v. Luxembourg, no. 38432/97, § 48,
ECHR 2001-III).
79. The applicanťs statement was published shortly after the
parliamentary election in 1992 and the setting up of a new government, and
after the proclamation of Slovakia's sovereignty. Mr Slobodník had been
appointed Minister for Culture and Education.
80. In the statement, the applicant expressed serious concern about
maintaining the democratic character of the Slovakian emancipation
process. The applicant was particularly worried about the political leaders of
Slovakia. He criticised Mr Slobodník for his alleged fascist past, which he
considered incompatible with the personal qualities required of a member of
the government. The applicant called for the resignation of Mr Slobodník,
considering that otherwise Slovakia might find itself isolated because of
doubts which might arise as to the governmenťs democratic intentions.
81. The Court notes that the applicanťs statement was made and
published as part of a political debate on matters of general and public
concern relating to the history of Slovakia which might have repercussions
on its future democratic development. Moreover, although the statement did
not indicate the sources, it was based on facts which had been published
both by Mr Slobodník himself and by the press prior to the publication of
the applicanťs statement.
82. As regards the reasons adduced by the court of cassation to justify
the interference with the applicanťs rights, the Court notes that it admitted
that Slovakian law characterised the Hlinka Youth as a fascist organisation.
Nevertheless, that court found that the applicanťs argument that his
statement was a value judgment could only have been accepted if the
statement had been accompanied by a reference to the facts on which the
applicant had based his conclusion, namely Mr Slobodník's membership of
the Hlinka Youth and his participation in the training course in Sekule. The
court of cassation held that in such a case the opinion expressed by the
applicant would not have required any proof. Thus, the highest judicial
instance deciding on the merits of the relevant part of the case admitted, in
substance, that the applicanťs statement was not devoid of a factual basis
for the opinion expressed. However, the court of cassation also held that the
term "fascist past" implied that a person had propagated or practised
fascism in an active manner. Since the applicant had failed to prove that
Mr Slobodník had a fascist past in that sense, his statement had unjustifiably
infringed Mr Slobodník's personality rights.
FELDEK v. SLOVAKIA JUDGMENT 19
83. The Court emphasises that the promotion of free political debate is a
very important feature of a democratic society. It attaches the highest
importance to the freedom of expression in the context of political debate
and considers that very strong reasons are required to justify restrictions on
political speech. Allowing broad restrictions on political speech in
individual cases would undoubtedly affect respect for the freedom of
expression in general in the State concerned.
84. The applicanťs statement was clearly made in a very political
context and one that was crucial for the development of Slovakia. It
contained harsh words, but was not without a factual basis. There is nothing
to suggest that it was made otherwise than in good faith and in pursuit of the
legitimate aim of protecting the democratic development of the newly
established State of which the applicant was a national.
85. The Court finds that the applicanťs statement was a value judgment
the truthfulness of which is not susceptible of proof. It was made in the
context of a free debate on an issue of general interest, namely the political
development of Slovakia in the light of the country's historical background.
The statement concerned a public figure, a government minister, in respect
of whom the limits of acceptable criticism are wider than for a private
individual.
86. As regards the reasons adduced by the court of cassation, the Court
cannot accept the proposition, as a matter of principle, that a value judgment
can only be considered as such if it is accompanied by the facts on which
that judgment is based (see paragraph 35 above). The necessity of a link
between a value judgment and its supporting facts may vary from case to
case according to the specific circumstances. In the present case, the Court
is satisfied that the value judgment made by the applicant was based on
information which was already known to the general public, both because
Mr Slobodník's political life was known, and because information about his
past was disclosed, by him in his book, and in publications by the press
which preceded the statement by the applicant. Nor can the Court subscribe
to a restrictive definition of the term "fascist past". The term is a wide one,
capable of evoking in those who read it different notions as to its content
and significance. One of them can be that a person participated in a fascist
organisation, as a member, even if this was not coupled with specific
activities propagating fascist ideals.
87. The court of cassation did not convincingly establish any pressing
social need for putting the protection of the personality rights of a public
figure above the applicanťs right to freedom of expression and the general
interest in promoting this freedom where issues of public interest are
concerned. In particular, it does not appear from the domestic courts'
decisions that the applicanťs statement affected Mr Slobodník's political
career or his professional and private life.
20 FELDEK v. SLOVAKIA JUDGMENT
88. In conclusion, the Court finds that the reasons adduced by the court
of cassation cannot be regarded as a sufficient and relevant justification for
the interference with the applicanťs right to freedom of expression. The
national authorities therefore failed to strike a fair balance between the
relevant interests.
89. Accordingly, the interference complained of was not "necessary in a
democratic society" within the meaning of Article 10 § 2 of the Convention.
90. There has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
91. The applicant further complained that his right to freedom of thought
had been violated in that he had been ordered to endure the publication of a
text declaring his statement defamatory. He alleged a violation of Article 9
of the Convention which provides:
"1. Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others."
92. The Court considers that the impugned measure constituted an
interference with the applicanťs exercise of his freedom of expression,
which it has examined above under Article 10 of the Convention, and that
no separate issue arises in relation to Article 9 in this respect.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
93. The applicant complained that he had been discriminated against on
the basis of his political opinion in that the domestic courts had placed an
unreasonable burden of proof on him, that they had distorted the definition
of the term "fascist", and that he had had to endure the publication of a text
declaring his statement defamatory. He alleged a violation of Article 14 of
the Convention which provides:
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status."
94. The Government maintained that the applicanťs complaint of
discrimination was unsubstantiated.
FELDEK v. SLOVAKIA JUDGMENT 21
95. The Court has examined this complaint in conjunction with
Articles 9 and 10 of the Convention but finds no indication that the measure
complained of can be attributed to a difference in treatment based on the
applicanťs political opinion or any other relevant ground.
96. Accordingly, the Court concludes that there has been no violation of
Article 14 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
97. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party."
A. Damage
98. The applicant claimed 1,000,000 Slovakian korunas (SKK) as
compensation for both pecuniary and non-pecuniary damage. He explained
that during the time the government of which Mr Slobodník had been a
member was in place he had been dismissed from the theatre where he was
employed and could not publish his works as the publishers, distributors and
booksellers had not wanted to deal with him on account of the negative
attitude several officials had shown towards him. The applicant further
argued that the loss of income, pressure brought to bear on him and threats
against his person had obliged him to move to the Czech Republic and that
he had incurred significant costs in this connection.
99. The Government replied that there was no causal connection
between the alleged violations of the Convention and the damage claimed.
100. The Court finds that there is not sufficient evidence of a causal link
between the violation of Article 10 it has found and the pecuniary damage
allegedly sustained by the applicant. This claim must therefore be
dismissed.
101. As to the applicanťs claim for non-pecuniary damage, the Court
considers that the applicant sustained prejudice as a result of the breach of
Article 10, on account of the inconvenience occasioned by the proceedings
and decisions in question. Having regard to the relevant circumstances, it
awards the applicant SKK 65,000 under this head.
B. Costs and expenses
22 FELDEK v. SLOVAKIA JUDGMENT
102. The applicant claimed SKK 701,750 for his costs and expenses.
This sum included SKK 250,000 as compensation for the costs and
expenses incurred by the applicant in the context of the proceedings before
the Convention organs.
103. The Government contended that the sum claimed was excessive
and that the applicant had not furnished any relevant document in support of
this claim.
104. The Court reiterates that in order for costs and expenses to be
included in an award under Article 41 of the Convention, it must be
established that they were actually and necessarily incurred and reasonable
as to quantum (see, among others, Jčius v. Lithuania, no. 34578/97, § 112,
ECHR 2000-IX). The Court is not satisfied that these conditions are met as
regards the applicanťs claims. Since it is obvious that the applicant incurred
costs and expenses both at national level and in the proceedings before the
Convention organs, the Court, making its assessment on an equitable basis,
awards the applicant a total sum of SKK 500,000.
C. Default interest
105. According to the information available to the Court, the statutory
rate of interest applicable in Slovakia at the date of adoption of the present
judgment is 17.6% per annum.
FOR THESE REASONS, THE COURT
1. Holds by five votes to two that there has been a violation of Article 10 of
the Convention;
2. Holds unanimously that no separate issue arises under Article 9 of the
Convention;
3. Holds unanimously that there has been no violation of Article 14 of the
Convention;
4. Holds by five votes to two
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts:
(i) SKK 65,000 (sixty-five thousand Slovakian korunas) in respect
of non-pecuniary damage;
(ii) SKK 500,000 (five hundred thousand Slovakian korunas) in
respect of costs and expenses;
FELDEK v. SLOVAKIA JUDGMENT 23
(b) that simple interest at an annual rate of 17.6% shall be payable from
the expiry of the above-mentioned three months until settlement;
5. Dismisses unanimously the remainder of the applicanťs claims for just
satisfaction.
Done in English, and notified in writing on 12 July 2001, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Erik FRIBERGH Christos ROZAKIS
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the dissenting opinion of Mr Fischbach and
Mr Lorenzen is annexed to this judgment.
C.L.R.
E.F.
24 FELDEK v. SLOVAKIA JUDGMENT
DISSENTING OPINION OF JUDGES FISCHBACH
AND LORENZEN
We do not share the view of the majority of judges that there has been a
violation of Article 10 of the Convention.
The main point in question in the present case is whether the interference
with the applicanťs right to freedom of expression was proportionate to the
legitimate aim pursued and whether the reasons given by the national courts
to justify it were relevant and sufficient. In this respect, we point out at the
outset that it is not the Courťs task to take the place of the domestic courts
in assessing the factual background of the case or, in particular, to give any
qualification whatsoever to the relevant period of the past of Mr Slobodník.
It is apparent from the statement of 29 July 1992, when read as a whole,
that the applicanťs main concern was to show that the past of
Mr Slobodník, which "came out in public" and which he characterised as
being "fascist" constituted a threat to the democratic development and
image of Slovakia, and that it was incompatible with the personal qualities
required of a member of the government. The applicant further called for
the resignation of Mr Slobodník as, in his view, Slovakia could otherwise
find itself in political, economic and cultural isolation. In doing so, the
applicant expressly referred to the philosophy of the Nuremberg trials,
namely the philosophy governing the proceedings before the International
Military Tribunal, the purpose of which had been to try and punish the
major war criminals of the European Axis bearing individual responsibility
for crimes against peace, war crimes and crimes against humanity.
In their judgments, the appellate court and the court of cassation noted
that the relevant period of the life of Mr Slobodník had been described in
the book written by himself and published in 1991. It had also been covered
by the press in Slovakia and abroad both prior to and after the applicanťs
statement, and on several occasions Mr Slobodník had commented and
given interviews on the subject.
Thus, the applicanťs statement was based only on information which had
already been published in 1991 and no other relevant facts were established
in the course of the public debate and court proceedings in Slovakia. In his
statement the applicant referred to the fact that Mr Slobodník had been
appointed Minister for Culture and Education in June 1992 and added that
"... the next thing was that his fascist past came out in public". That
sentence could give the reader the impression that the allegation of a "fascist
past" was based on information that had become public only after
Mr Slobodník's appointment as a minister of the government.
We admit that the opinion expressed in the statement was a value
judgment on an issue of public interest, as it concerned a minister, that is, a
FELDEK v. SLOVAKIA JUDGMENT 25
public figure in respect of whom the limits of acceptable criticism are
admittedly wider than for a private individual.
FELDEK v. SLOVAKIA JUDGMENT ­ DISSENTING OPINION
OF JUDGES FISCHBACH AND LORENZEN 25
As to the question whether there existed a sufficient factual basis for the
impugned statement, it should be recalled that the appellate court held that
the applicant himself had given a restrictive interpretation to the term
"fascist past" in that he had expressly referred to the philosophy of the
Nuremberg trials.
The appellate court examined all the available documents and evidence
used during the Nuremberg trials and relating to Slovakia, but it found no
reference in them to the Hlinka Youth in connection with fascist
organisations. It established that the propagation or implementation of
fascist theories had not been inherent in the statutory rules and regulations
governing the Hlinka Youth. The appellate court found that Mr Slobodník
had joined that organisation because he had wanted to participate in sports
activities and had not been motivated by fascist sympathies. As to the
training course in Sekule, it found that Mr Slobodník had not completed it
and accepted the latter's argument that he had learned about the purpose of
the course only after he had started attending it. The appellate court
concluded that Mr Slobodník was not individually responsible for any
action which would justify describing his past as fascist.
The court of cassation upheld the finding of the appellate court that a
person could be considered to have a fascist past only if he had propagated
or practised fascism in an active manner. Mere membership of an
organisation and participation in a terrorist training course which had not
been followed by any practical actions could not be characterised as a
fascist past. As the applicant had not proved that Mr Slobodník had a fascist
past within that meaning, the court of cassation found that the statement of
29 July 1992 had been an unjustified interference with his personality
rights. However, the court of cassation did not exclude that the applicanťs
statement could be regarded as a value judgment, which would not require
any proof, if it had been accompanied by reference to the facts on which the
applicant had based his judgment.
In our opinion, the term "fascist past" used by the applicant in his
statement is a vast term capable of evoking in those who read it different
notions as to its content and significance. Admittedly, the role of a journalist
and the press in general is to impart information and ideas on matters of
public interest, even those that may offend, shock or disturb. However, that
information must permit readers to understand the circumstances or events
on which the author has expressed a value judgment so that they do not gain
the wrong impression about the content of the information.
In his statement, the applicant made no reference to the book by
Mr Slobodník, the relevant newspaper articles or other sources of
information, nor did he reveal the circumstances or events from which he
derived his value judgment, merely mentioning Mr Slobodník's "fascist
past" which "came out in public". By indicating that the information on
Mr Slobodník's past came out after he had become Minister for Culture and
26 FELDEK v. SLOVAKIA JUDGMENT ­ DISSENTING OPINION
OF JUDGES FISCHBACH AND LORENZEN
Education, the applicant gave the impression that his statement was based
on information that was not already publicly known. This is all the more
important as he expressly referred to the philosophy of the Nuremberg trials.
In doing so, the applicant opened the door to all kinds of speculations about
the fascist and criminal past of Mr Slobodník even for those who had read
the material concerning Mr Slobodník's past. The applicant thereby
exceeded the wide limits of acceptable criticism afforded by the Courťs
case-law in respect of a politician or a member of the government.
In these circumstances, and having regard to the duties and
responsibilities inherent in the right to freedom of expression guaranteed by
Article 10 of the Convention and the Contracting States' obligation to
provide a measure of protection to the right of an individual to respect for
his private life, we consider that it was not unreasonable that, having
examined and balanced the interests at issue, the appellate court and the
court of cassation rejected the argument that the applicanťs right to freedom
of expression should outweigh Mr Slobodník's right to protection of his
reputation and reached the opposite conclusion.
In our opinion, the appellate court and the court of cassation exercised
their discretion carefully and reasonably. The reasons adduced by them
appear to be based on an acceptable assessment of the facts and they are
relevant and sufficient. Furthermore, there is no indication that the applicant
was deprived of an effective opportunity to adduce evidence in support of
his statement and thereby show that it constituted a fair comment. We
therefore consider that the standards applied were compatible with the
principles embodied in Article 10.
In addition, taking into account the fact that the court of cassation
ordered the applicant only to endure publication of a declaration of the
defamatory character of his statement but dismissed Mr Slobodník's claim
for non-pecuniary damage as being unsubstantiated, we find that the ruling
complained of was not disproportionate to the legitimate aim pursued.
We therefore consider that the interference with the applicanťs right to
freedom of expression can reasonably be regarded as having been
"necessary in a democratic society" within the meaning of paragraph 2 of
Article 10 and that, accordingly, there has been no violation of Article 10 of
the Convention.