THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-4256/2004
Zagreb, 6 July 2006
The Constitutional Court of the Republic of Croatia, in the First Panel for
deciding on constitutional complaints, composed of Judge Željko Potočnjak,
President of the Panel, and Judges Ivan Matija, Agata Račan, Smiljko Sokol,
Nevenka Šernhorst and Milan Vuković, Panel Members, in proceedings instituted by
the constitutional complaint of N. l. d.d. R., represented by the law firm of V., J., Š.,
S., J. & J. from R., at its session held on 6 July 2006, unanimously rendered the
following
DECISION
I.
The constitutional complaint is hereby refused.
II.
This Decision shall be published in Narodne novine.
Statement of reasons
1.
The constitutional complaint was lodged against the judgment of the Rijeka
County Court, No.: Gž-386/02-2 of 12 February 2003, in which the applicant’s appeal
was refused and the judgment of the Rijeka Municipal Court, No.: P-816/99-46 of 29
May 2001, ordering the applicant to pay the plaintiff Š. B. damages of 29,000.00
kunas, upheld.
2.
The applicant of the constitutional complaint deems that the above judgments
violated his constitutional rights guaranteed in Articles 14/2, 26 and 38 of the
Constitution of the Republic of Croatia.
In the reasons for the constitutional complaint the applicant repeats his arguments
from the earlier proceedings, mainly disputing the findings of the courts on the
grounds that they had wrongly and incompletely established facts of the case. He
maintains that the journalist validly reported true facts. He also deems that the
arguments the court used to substantiate the judgment are completely unconvincing.
He says that the plaintiff did act fraudulently and that the reports about this were
truthful, that the journalist D. C., the author of the disputed articled, had good reasons
to believe that the facts were true, and that did everything in his power to check the
accuracy of the information on which he based his article. The author of the article
acted in good faith. The applicant deems that the plaintiff did not suffer any mental
suffering because of the publication of the article, and proposes that the Court
quashes the disputed judgments.
2
The constitutional complaint is not well founded.
3.
Article 62/1 of the Constitutional Act on the Constitutional Court of the
Republic of Croatia (Narodne novine, Nos. 99/99, 29/02 and 49/02 – consolidated
wording, hereinafter: Constitutional Act) provides that anyone may lodge a
constitutional complaint with the Constitutional Court if he deems that the decision of
a governmental body, a body of local and regional self-government, or a legal person
with public authority, which decided about his rights and obligations, or about
suspicion or accusation for a criminal act, has violated his human rights or
fundamental freedoms guaranteed in the Constitution.
In pursuance of the above the Constitutional Court, during its proceedings of offering
constitutional-law protection, as a rule within the limits of the request specified in the
constitutional complaint, establishes whether there has been a constitutionally
impermissible encroachment into the applicant’s constitutionally guaranteed human
rights and fundamental freedoms in the proceedings of deciding about his rights and
obligations.
4.
The court of first instance found that the applicant published an article in the
daily newspaper N. l. of 12 January 1999, on page 16, entitled: “Bought a flat which
he cannot enter”, with the introductory title: “Another case of fraud on the Rijeka
property market”, and the introductory subtitle: “Vendor Š.B. from Rijeka deceives
purchaser Ž. B. and the ‘AD N.’ agency from Rijeka, hushes up ongoing ownership
dispute for flat in Ul. G. C., regularly recorded in the land registry department of the
Rijeka Municipal Court. A fraud of 60.000 DEM."
That court found that the plaintiff sold the disputed flat to Ž. B. in September 1998, he
entered into possession of the flat at the beginning of October 1998, and that she
was at that time recorded as the owner of the disputed flat. It found that at the time
when the sales and purchase contract was signed the plaintiff did not know that her
former husband had filed proceedings No.: P-3126/98, requesting that the court
proclaims him co-owner of the disputed flat on the grounds of matrimonial home
rights.
From the testimony of D. C., the author of the article, the first-instance court found
that the journalist had spoken to the purchaser of the disputed flat Ž. B., the plaintiff’s
former husband and the owner of the ‘AD N.’ agency before publishing the disputed
article, but that he had not spoken to the plaintiff nor had he examined the land
registry books of the Rijeka Municipal Court.
The first-instance court found that the applicant did not prove reasons within the
framework of Article 23/1 points 3,6 of the Public Communications Act (Narodne
novine, No. 83/96) to free him from liability for paying compensation. Point 3 of the
above article provides that the publisher shall not pay damages if the damaging
information is based on true facts or on facts that the author was justified to believe
were true, if he undertook everything necessary to check their accuracy and there is
justified public interest in the publication of this information, and if he acted in good
faith. Point 6 of the act provides that the publisher shall not pay damages if the
disputed information refers to the author’s value judgments and publication was in
the public interest, and if he acted in good faith.
3
Finally, the first-instance court found that the publication of the above article, because
of its content, defamed the plaintiff’s dignity, reputation and honour. She experienced
stress and her way of communicating with her environment changed. Thus she was
awarded fair damages for the defamation of dignity, reputation and honour.
The second-instance court upheld the first-instance judgment and found that the
disputed article stated twice that the plaintiff had committed fraud, and that this
qualification of the her acts at the time when the disputed article was published was
not true, as the implication was that she was guilty of the criminal offence of fraud. No
legally effective judgment had been passed proclaiming the plaintiff guilty of fraud,
there was thus no evidence that she had acted fraudulently, and for this reason the
information, in the way in which it was published, was in fact not true. The author of
the disputed article did not undertake all the necessary activities before publication to
check the truth of the information published, so there are no preconditions to free him
from liability.
Since this case involves a civil-law relationship between the plaintiff, her former
husband and the purchaser of the disputed flat, the second-instance court found that
no justified public interest was served by the publication of the information and
especially not by the wording of the introductory title and subtitle of the disputed
article. If the applicant, by publishing the disputed article, wanted to inform the public
about such or similar cases in the sale of property, then the public interest would
have been served if he had left out the word “fraud” in the introductory title. It was
also not necessary to publish the plaintiff’s full name.
Thus the court found that the publication of the above article, considering its content,
defamed the plaintiff’s dignity, reputation and honour. She experienced stress and
her way of communicating with her environment changed. Therefore she was
awarded fair damages for the defamation of her dignity, reputation and honour.
5.
Article 38 of the Constitution provides as follows:
Freedom of thought and expression shall be guaranteed.
Freedom of expression shall specifically include freedom of the press and
other media of communication, freedom of speech and public expression, and free
establishment of all institutions of public communication.
Censorship shall be forbidden. Journalists shall have the right to freedom of
reporting and access to information.
The right to correction shall be guaranteed to anyone whose constitutional and
legal rights have been violated by public information.
The Public Communications Act lays down the preconditions for realising the
principle of the freedom of the press and other public communications media, the
right of journalists and other participants in public communications to the freedom of
reporting and access to information and their other rights and liabilities for information
published, compensation for damage caused by the information published, the
publication of announcements and correction of information.
4
In this case, the courts found the first respondent liable and awarded the plaintiff
damages on the grounds of Article 22 of the Public Communications Act, which
provides as follows:
(1) The publisher who causes damage to another person by information
published in a public medium has the obligation to compensate it.
(2) Damage is (...) causing another person (...) mental suffering (...)
(4) Non-material damage is compensated for (…) by paying just monetary
compensation for the pain suffered (…) if the intensity and duration of the pain …
justify this, in accordance with the general provisions of the law of obligations.
(7) In deciding on the amount of the compensation for non-material damage
the court shall take into account the degree of the publisher’s liability, the importance
of the infringed good and the intensity of the pain suffered (…) the objective of the
compensation, circulation, (…) and other circumstances of the case, and also that
compensation does not satisfy desires that cannot be connected with its nature and
social objective.
6.
The Constitutional Court finds that in this case Article 38/1,2 of the
Constitution is relevant for reviewing the reasons given in the constitutional
complaint.
The constitutionally guaranteed freedom of thought and expression, which includes
the freedom of press, does not have the meaning of absolute freedom but is subject
to restrictions provided for in the Constitution and law.
In the case of the public media, for example, these restrictions emerge from Article
13 of the Public Communications Act, in which the legislator, defining the obligations
of the media, provided:
The public media shall publish exact, complete and timely information,
honouring the right of the public to be informed about events, phenomena, persons,
objects or activities, and complying with other rules of the journalist profession and
ethics (paragraph 1); the public media shall respect the privacy, dignity, reputation
and honour of citizens, and especially of children, young people and the family
(paragraph 2).
Freedom of expression is one of the fundaments of every democratic society. Its
protection in the case of the press is of special importance, because it is one of the
duties of the press to publish information of public importance. However, the freedom
of the press to publish information is restricted by the protection of the reputation and
rights of other people. Thus it is important to establish the circumstances under which
government bodies take measures that may influence the activities of the press in
cases which are of legitimate public interest.
In the view of the Constitutional Court, the findings of the courts, that the applicant of
the constitutional complaint defamed the plaintiff’s dignity, reputation and honour by
publishing untrue information, are acceptable in constitutional law.
5
The Constitutional Court finds that the measures taken for the protection of a
person’s reputation, i.e. the compensation order in the above amount, is proportional
to the gravity of the defamation of the person’s reputation and the gravity of judicial
interference in the freedom of expression, which this act brought about. Since the
applicant, as a publisher, did not in his activities comply with the provisions of the
Public Communications Act, the Constitutional Court finds that the published article
harmed the reputation of another person.
Pursuant to all the above, the Constitutional Court finds that the applicant’s
constitutional rights guaranteed in Article 38/1,2 of the Constitution have, in this case,
not been violated.
7.
Starting from the finding in Point 6 of these Reasons, the Constitutional Court
did not examine the reasons for the constitutional complaint in relation to the other
provisions of the constitution put forward.
8.
In accordance with the above findings, on the grounds of Articles 73 and 75 of
the Constitutional Act, the Court has decided as in Point I of the Pronouncement.
Point II of the Pronouncement is grounded on Article 29 of the Constitutional Act.
PRESIDENT OF THE PANEL
Željko Potočnjak, LLD, m. p.