THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-2723/2003
Zagreb, 23 November 2006
The Constitutional Court of the Republic of Croatia, composed of Petar Klarić,
President of the Court, and Judges Marijan Hranjski, Mario Kos, Ivan Matija, Ivan
Mrkonjić, Jasna Omejec, Željko Potočnjak, Agata Račan, Emilija Rajić, Smiljko Sokol,
Nevenka Šernhorst, Vice Vukojević and Milan Vuković, in proceedings instituted by
the constitutional complaint of E. H. d.o.o. Z., represented by V. A., attorney in Z., at
its session held on 23 November 2005, passed 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 Supreme
Court of the Republic of Croatia, No.: Rev-2496/1999-2 of 19 December 2002,
rejecting the applications of the respondents G. I. d.d. from Z. and N. l. d.d. from R,
for the judicial revision of the judgement of the Zagreb County Court No.: Gž9361/98-2 of 1 December 1998, which partly upheld and partly altered the judgment
of the Zagreb Municipal Court, No.: Pn-3024/96 of 27 February 1998.
The disputed judgment of the Supreme Court of the Republic of Croatia, and the
lower-instance judgments, were made in the legal matter of the plaintiff B. Š. from Z.
against the respondents: 1. G. I. d.d. from Z., 2. N. l. d.d. from R. and 3. M. c. G. S.
d.d. from O., for the compensation of (non-material) damage resulting from the
violation of the plaintiff’s dignity, reputation and honour published in the press.
The applicant of the constitutional complaint is the legal successor of the principal
respondent G. I. d.d. from Z. Therefore the Constitutional Court, in deciding on the
grounds for the constitutional complaint, considered only the judicial findings and
legal opinions relating to the principal respondent.
2.
The first-instance court ordered the principal respondent to pay the plaintiff
100,000.00 kn with the statutory default interest and recompense his legal expenses,
and rejected the plaintiff’s claim for a further 400,000.00 kn.
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In the reasons for this decision the first-instance court states that the principal
respondent, the publisher of the weekly G., published an article in that weekly on 2
February 1996 entitled "M. Š. points gun at journalist E. V.!" and in it violated the
plaintiff’s dignity, reputation and honour, and it finds that his claim for compensation
of non-material damage is partly well founded. The first-instance court found that the
respondents, by publishing untrue information about an “incident” that took place on
26 January 1996, when the plaintiff, allegedly, threatened the journalist E. V. with a
gun saying “I’ll kill you right now”, damaged the plaintiff, and that “the respondents did
not, as prescribed in Article 23/1 point 3 of the Act, do all they could to verify the truth
of the information that they published, because of which they cannot in this case be
exculpated.”
During the proceedings the court examined file No.: K-36/96 and also found that the
plaintiff had, by a legally effective judgment of the same court of 14 May 1997, been
found got guilty of the charge of the private plaintiff E.V. that he had, on 26 January
1996, on the premises of Banski dvori in Zagreb, committed the criminal offence of
abuse and serious threat in Article 72/1 and Article 35/1 of the Criminal Act of the
Republic of Croatia (Narodne novine, Nos. 32/93, 38/93, 16/96, 28/96 and 110/97).
3.
The court of second instance, in relation to the first respondent, confirmed the
compensation order for the sum of 60,000.00 kn and refused the plaintiff’s claim for
the further 40,000.00 kn granted by the first-instance court, and also altered the
judgment in relation to payment of the expenses of the lawsuit. This court found that
the first-instance court had rightly and completely established all the facts necessary
for reaching a valid decision, however, in the opinion of the second-instance court the
first-instance court had misapplied Article 22/4,7 of the Public Communications Act
(Narodne novine, Nos. 83/96, 143/98 and 96/01, hereinafter: PCA) and Article 200 of
the Obligations Act (Narodne novine, Nos. 53/91, 73/91, 111/93, 3/94, 107/95, 7/96,
91/96, 112/99 and 88/01). In decreasing the sum of the damages, the secondinstance court took the stand that the”purpose of damages is to provide the damaged
party with satisfaction and compensate for his non-material loss, i.e., offer him the
satisfaction he would have had if the wrongful act had not taken place", and pointed
out that "monetary compensation does not repair the non-material damage but is
satisfaction for this damage".
4.
The Supreme Court of the Republic of Croatia, in the disputed judgment,
refused the first respondent’s application for judicial revision as without grounds,
finding that no essential infringements of civil procedure had taken place in the
proceedings before the lower-instance courts and that the relevant substantive law
had been properly applied. In the view of the Supreme Court, the disputed
newspaper articles “were of such a nature that they objectively offended the plaintiff’s
dignity, reputation and honour, which caused him mental suffering, because
defamation leads to hurt feelings, dissatisfaction, feeling uncomfortable among other
people and so on, all of which is covered by the concept of mental suffering."
5.
The applicant of the constitutional complaint, as the legal successor of the
principal respondent, deems that the judgment of the Supreme Court of the Republic
of Croatia violated his constitutional rights guaranteed in Articles 16 and 38 of the
Constitution of the Republic of Croatia.
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The applicant also indicates the violation of Article 10 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (Narodne novine Međunarodni ugovori, International Agreements, Nos. 18/97, 6/99 – consolidated
wording, 8/99 – correction and 14/02, hereinafter: the Convention), and gives a
detailed elaboration of the content of this article and its interpretation and application
in the case law of the European Court of Human Rights.
In the reasons for the constitutional complaint the applicant repeats the reasons he
gave during the earlier proceedings, and he mostly disputes the findings and
standpoints of the courts because they wrongly and incompletely established the
facts of the case and, in the applicant’s opinion, misunderstood the circumstances,
participants and the significance of the wrongful act ("the incident") for the plaintiff.
Therefore the applicant disputes the grounds and the need for compensation of
damage in this case. The applicant deems that ordering monetary satisfaction to the
plaintiff – “the main actor in the incident”, for damage he suffered "because
information about such an incident was published” is a “restriction of the freedom of
the press of a kind” that “cannot be considered proportional and therefore neither
indispensable in a democratic society, nor is there an indispensable social need for
such a restriction”.
Therefore, the applicant proposes that the Court accepts the constitutional complaint
and quashes the judgment of the Supreme Court of the Republic of Croatia, and the
lower-instance judgments, and refers the case back to the court of first instance for
retrial.
The constitutional complaint is not well founded.
6.
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.
The Constitutional Court, during its proceedings of offering constitutional-law
protection, as a rule, within the framework of the request put forward in the
constitutional complaint, establishes whether there has been a constitutionally
impermissible encroachment into human rights and fundamental freedoms in the
procedure of deciding about an individual’s rights and obligations.
7.
Article 16 of the Constitutional provides as follows:
Freedoms and rights may only be restricted by law in order to protect
freedoms and rights of others, public order, public morality and health.
Every restriction of freedoms or rights shall be proportional to the nature of the
necessity for restriction in each individual case.
Article 38 of the Constitution provides as follows:
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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.
Article 10 of the Convention provides as follows:
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 the rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.
8.
The provisions of the PCA regulate the preconditions for exercising the
freedom of the press and other media of public communication, the right of journalists
and other participants in public communication to the freedom of and access to
information, and their other rights and responsibilities in publishing information,
compensating for damage caused by the information published, publishing the
statement about and correction of the information.
Article 6 PCA provides that every person has the right to the protection of … dignity,
reputation and honour (paragraph1).
In this case, the courts found that the principal respondent was liable for the wrongful
act and ordered that the plaintiff should be compensated for the damage he suffered
on the grounds of Article 22 PCA, which provides as follows:
(1) The publisher who causes damage to someone by the information
published in a public medium has the obligation to compensate it.
(2) Damage is … causing another person … mental suffering… (non-material
damage).
...
(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.
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(5) Non-material damage shall be compensated by the publisher who … in
some other information published in the public medium offends … the person’s
dignity, reputation, honour or some other constitutionally or legally protected right.
...
(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 responsibility, 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.
9.
The Constitutional Court found that the disputed judgments did not violate the
applicant’s constitutional rights guaranteed in Article 38/1,2 of the Constitution.
The constitutionally guaranteed freedom of thought, which also includes freedom of
the press, does not have the meaning of absolute freedom, but is subject to
restrictions provided for by the Constitution and law.
In the case of the public media, for example, these restrictions emerge from Article
13 PCA, 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).
Considering that the courts found that the applicant of the constitutional complaint
violated the plaintiff’s dignity, reputation and honour by publishing untrue information,
they ordered him, in the disputed judgments, to pay the plaintiff compensation for the
damaged caused in this way. The applicant has therefore no grounds for referring to
a violation of Article 38/1,2 of the Constitution.
10.
In relation to Article 10 of the Convention, whereby the exercise of freedom of
expression includes duties and responsibilities and may be subject to restrictions, the
Constitutional Court remarks the following:
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.
Freedom of expression does not only mean expressing and publishing information
and ideas that are positive, but also publishing information that may have a negative
public echo. Nevertheless, freedom of expression is not absolute but is subject to
certain restrictions, even in relation to press items concerning information of public
interest. The constitutional guarantee of free expression includes obligations and
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responsibilities that also refer to the press. These obligations and responsibilities
come to expression when, as in this case, the reputation of a state official is
defamed. It is because people who exercise their right to the freedom of expression
are bound by these obligations and responsibilities that the press, when it brings
information of public interest, is obliged to act in good faith and provide valid
information in accordance with journalist ethics.
In assessing whether there has been a violation of free expression it is necessary to
view each case in the light of all the circumstances, including the content of the
disputed allegations and the context in which these allegations were expressed. It is
especially necessary to establish whether the measures taken to restrict the freedom
of expression are proportional with the legitimate goal that this restriction is to
achieve. The protection of state officials from harassment must be balanced against
the right and interest of the press to free reporting and enable it to freely publish
information of public interest.
The article because of which the predecessor of the applicant of the constitutional
complaint was ordered to pay compensation was in content of such a nature that it
represented an attack on the person suffering the loss, as a public person, especially
on his reputation, and it certainly affected public confidence in him, considering his
function at that time of vice-president of the Government of the Republic of Croatia.
On the grounds of the findings of the courts, the Constitutional Court finds, in this
case, that the disputed article contained allegations about the behaviour of a (public)
person, which damaged that person’s reputation.
We must add that the disputed allegations were based on someone’s statement and
were not entirely arbitrary. Although the case involved a public person, it was the
applicant’s duty to confirm the truth of the information before publishing it, especially
as the disputed allegations referred to a specific event. The courts found that the
predecessor of the applicant of the constitutional complaint, by publishing data that
could harm the dignity, reputation and honour and another person, did not undertake
everything necessary to verify the truth of these data.
11.
Since the predecessor of the applicant of the constitutional complaint, in this
case, did not fulfil his obligation to verify the information before publishing it, which he
was obliged to do considering his activities, and since the information harmed the
reputation and honour of another person, the Constitutional Court deems that the
measures taken to restrict the freedom of expression of the predecessor of the
applicant of the constitutional complaint were necessary and justified.
With relation to the compensation order for the payment of damages for the violation
of a person’s reputation, the Constitutional Court notes that courts have a
discretionary right to decide about the amount of compensation to be paid for the
damaged person’s mental suffered, bearing in mind the circumstances of each case.
However, the decision of the court about the amount of these damages may mar the
principle of proportionality between the gravity of the courts interfering in the freedom
of expression and the importance of the interest that is to be achieved by this
restriction.
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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 this person’s character and the gravity of the courts
interfering in the freedom of expression, which this act brought about. Since the
applicant, as a newspaper house, did not comply with the provisions of the PCA in
his activities, the Constitutional Court finds that the published article harmed the
reputation of another person and decreased public confidence in this person, as the
bearer of a public office.
Thus the Court finds that the measure taken in this case, to restrict the freedom of
the press, is entirely proportional with the achievement of a justified goal – the
protection of a person’s reputation, and that the disputed judgments do not restrict
the applicant’s freedoms and rights in breach of Article 16 of the Constitution.
12.
In the constitutional complaint, the applicant does not specify the reasons for
the violation of Article 38/3,4 of the Constitution nor has the Constitutional Court
found that the disputed judgments have violated these provisions.
13.
Pursuant to the above, the Court has found that the disputed judgments have
not violated the rights of the applicant of the constitutional complaint guaranteed in
the Constitution or the Convention, as put forward in the constitutional compliant.
14.
In accordance with the above finding, on the grounds of Articles 73 and 75 of
the Constitutional Act, the Court has decided as in the pronouncement (point I).
The publication of this decision is grounded in Article 29 of the Constitutional Act
(point II of the pronouncement).
PRESIDENT
Petar Klarić, LLD, m. p.