THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-I-241/2000
Zagreb, 10 May 2000
The Constitutional Court of the Republic of Croatia, composed of Smiljko
Sokol, President of the Court, and judges Velimir Belajec, Marijan Hranjski, Jurica
Malčić, Ivan Matija, Ivan Mrkonjić, Jasna Omejec, Emilija Rajić, Vice Vukojević and
Milan Vuković, in connection with the proposal lodged by Vesna Alaburić from
Zagreb, and Jagoda Vukušić from Zagreb, to review the constitutionality of a law, at a session held on 10 May 2000, rendered the following
D E C I S I O N
Proceedings have been initiated to review conformity with the Constitution of
Article 204, paragraphs 2 and 3, of the Criminal Law (Official Gazette of the Republic of Croatia, Narodne novine , No. 110/97 and 27/98-corr.), and the above paragraphs have been repealed.
S t a t e m e n t o f r e a s o n s
The applicants lodged the proposal for the Constitutional Court to review the constitutionality of the provisions stated in the dictum because they doubted the conformity of the said provisions with Articles 14, 35 and 38, paragraphs 1 and 3 (first sentence), of the Constitution.
The provisions of Article 204 of the Criminal Law stipulate:
(1) Criminal proceedings for criminal acts against honour and reputation in Articles
199 to 202 of this Law are brought in a private suit.
(2) If the criminal acts in Articles 199 and 200 of this Law are committed against the
President of the Republic of Croatia, the President of the Parliament of the Republic of Croatia, the Prime Minister of the Republic of Croatia, the President of the
Constitutional Court of the Republic of Croatia and the President of the Supreme
Court of the Republic of Croatia, in connection with their work or position, criminal proceedings shall be brought by the Public Prosecutor by virtue of office, after first acquiring the consent in writing of these persons.
(3) The persons in paragraph 2 of this article may revoke their consent for criminal proceedings until the court decision becomes final.
(4) If the criminal acts in Articles 199 to 202 of this Law are committed against a deceased person, criminal proceedings are brought in a private action by the spouse,

2 children, parents, adopted parents, adopted children, brothers or sisters of the deceased.
3.
In challenging the constitutionality of the above legal provisions the applicants for the main part claim that:
- the disputed provisions depart from constitutional principles that guarantee equal rights for citizens and the equality of all before the law because they stipulate a different procedure for some categories of citizens in the protection of the same personal good, i.e. their reputation and honour, which has no foundation in any constitutional provision;
- the difference in initiating criminal proceedings for the same criminal acts for different categories of citizens results in their fundamental inequality and inequality before the law in criminal practice;
- on one hand, the disputed provisions place the five aforementioned state officials in an exceptionally privileged position in comparison with all other citizens from the aspect of protecting their reputation and honour, but on the other hand they are deprivileged, i.e. stripped of some rights enjoyed by all other citizens;
- there is no rational reason (or weighty legitimate state interest) or imperative necessity to protect the reputation and honour of the five aforementioned state officials in cases of libel and defamation in connection with their work or position by bringing criminal proceedings by virtue of office, because they may act like all other citizens, including all other highest state officials;
- a court decision does not depend on whether criminal proceedings were initiated in a private action or on the proposal of the Public Prosecutor, a nd a person’s reputation and honour will be protected in criminal proceedings equally efficiently regardless of how they were brought;
- the disputed provisions have by their very existence in the legal system, and through their application to date, indisputably had significant self-censorship
(freezing) effects on the constitutionally guaranteed freedom of expression;
- although Article 38 of the Constitution does not specifically mention self-censorship or freezing effects there is no doubt that they fall within the concept of censorship, which can be seen from the European Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights in connection with Article 10, paragraph 1, of that Convention;
- due to practically non-existent censorship in its classical form, its most subtle and because of its consequences most dangerous form is self-censorship, which is taken to mean any refusal to publish information or opinions motivated not by professional reasons but exclusively by fear of possible detrimental consequences (criminal action, criminal sanctions, blackmail, loss of job or position);
- there is no doubt that the right to free expression and the right to the protection of reputation and honour are two basic human rights, which are partly in opposition in

3 the sense that one limits the other; the degree and form of limiting one right for the protection of the other is controversial;
- the privileged legal protection of the reputation and honour of the five state officials in connection with their work and position, stipulated by the disputed provisions, not only unjustifiably facilitates criminal action for such criminal acts, but produces significant self-censorship (freezing) effects on the freedom of expression.
4.
Before it presents its views about whether or not the proposal is founded, the
Constitutional Court must remark that it has already ruled on the constitutionality of legal provisions stipulating how criminal proceedings will be initiated in cases of libel and defamation against the aforementioned state officials.
5.
On 10 July 1996 the Constitutional Court rendered the decision No.: U-I-
274/1996, published in Narodne novine , No. 61/96, whereby it rejected the proposal to review the constitutionality of Article 77, paragraphs 2 and 3, of the Criminal Law of the Republic of Croatia then in force ( Narodne novine , Nos. 55/77, 50/78, 52/87,
43/89, 8/90, 9/91 and 28/96), in connection with Article 4 of the Law on the Revisions and Amendments of the Criminal Law of the Republic of Croatia ( Narodne novine ,
No. 28/96).
The statement of reasons in that decision gives the grounds on which the
Constitutional Court established that the aforementioned proposal was not founded.
6.
In accordance with Article 52 of the Constitutional Law on the Constitutional
Court of the Republic of Croatia ( Narodne novine , no. 99/99), the Constitutional Court may review the constitutionality of a law, or the constitutionality and legality of other regulations, even in the case when the same law or regulation has already been reviewed by the Constitutional Court.
7.
In conformity with the above, and on the basis of the proposal cited in the introduction, the Constitutional Court again reviewed the constitutionality of the provisions of the Criminal Law now in force, which prescribe an identical procedure for bringing criminal action in cases of libel or defamation in connection with the work or position of the aforementioned officials of the Republic of Croatia.
8.
Based on the reasons set forth in the proposal to review the provisions, the
Constitutional Court established that the proposal is founded.
9. In reviewing the constitutionality of the disputed decisions of the Criminal Law it is necessary to start from the constitutional values in Article 3 of the Constitution, such as freedom, equal rights, respect for human rights and the rule of law. Each of them, and all of them jointly with the other highest constitutional values in Article 3 of the Constitution, make up the foundations of the constitutional order of the Republic of Croatia as a democratic state.
10.
In establishing fundamental freedoms and human rights, the Constitution laid down the common provisions that:

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- in Article 14: everyone in the Republic of Croatia shall enjoy all rights and freedoms regardless of race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics; all shall be equal before law;
- in Article 16: freedoms and rights may only be restricted by law in order to protect freedoms and rights of others, public order, public morality and health;
- in Article 35: everyone shall be guaranteed respect for and legal protection of private and family life, dignity, reputation and honour;
- in Article 38: freedom of thought and expression shall be guaranteed (paragraph 1); 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 (paragraph 2); censorship shall be forbidden (paragraph 3, first sentence).
11.
In the specific case the Constitutional Court found that the disputed provisions are not in conformity with the cited provisions of the Constitution so the stands taken in the aforementioned Constitutional Court decision must be changed.
12.
Article 204 of the Criminal Law stipulates how proceedings shall be initiated for criminal acts against a person’s reputation and honour which, however, are not equal for all who consider that their reputation or honour have been violated.
Every citizen may demand protection for his/her reputation or honour in court by bringing a private suit in cases of libel, defamation, communicating personal or family conditions or charging with criminal acts,.
However, when libel or defamation have been committed against the President of the
Republic and the other aforementioned state officials in connection with their work or position, a different procedure is stipulated. Criminal proceedings are not brought by the injured parties themselves but by the Public Prosecutor by virtue of office. The aforementioned officials supply the Public Prosecutor with their consent in writing for criminal proceedings, which they may repeal until the court decision becomes final.
13.
The applicants’ claim concerning the inequality of citizens when realising the constitutionally guaranteed legal protection of personal goods like honour and reputation is thus founded. This constitutionally intolerable inequality before the law is exclusively the result of the social position of the aforementioned officials, who are thus less exposed to the liabilities and responsibilities that criminal proceedings place before whoever seeks the establishment of anyone’s criminal responsibility and passing a legally prescribed sentence.
The disputed provisions undoubtedly show that not all citizens realise their constitutional right to the respect and protection of their reputation and honour under equal legal conditions and procedure.
Although the disputed provisions prescribe special procedures only in cases when the criminal acts of libel or defamation are committed in connection with the work and

5 position of the aforementioned state officials, the Constitutional Court holds that they nevertheless violate the above constitutional provisions. This is so because the Constitutional of the Republic of Croatia guarantees all citizens equal rights in realising all their constitutional rights and freedoms, including equality before the law, without any restrictions.
Constitutional rights and freedoms may be restricted only and exclusively under conditions provided for in Article 16 of the Constitution, which does not cover the aforementioned cases.
14.
Article 35 of the Constitution, whereby everyone shall be guaranteed respect for and legal protection of private and family life, dignity, reputation and honour, is fundamental for the realisation of constitutionally guaranteed personal freedoms and rights. Thus the Court has ruled that the claims in the proposal, whereby the disputed provisions are not in conformity with the constitutionally guaranteed right for the protection of personal freedoms and human and civil rights, are founded.
15.
Concerning Article 38 of the Constitution, the Constitutional Court holds that prescribing special legal protection in the way done in the disputed case may in a certain sense restrict freedom of thought and expression guaranteed in paragraph 1 of that article.
16.
In connection with unequal rights it must also be said that inequality in connection with a person’s position and office need not always be unconstitutional.
This, for example, can be seen from the special legal protection that the Constitution recognises through the institute of immunity for representatives in the Croatian
National Parliament and for judges in courts.
Articles 75 and 119 of the Constitution define more closely the preconditions for realising this immunity, which is linked exclusively with the position or office of representative and judge. The constitutional right to immunity was not introduced to protect these persons as citizens but to give them special legal protection which will allow them to carry out their office more efficiently. These are cases of inequality due to office, which is justified because it stems from the nature of the work performed by certain officials (representatives and judges) and its protection, and is recognised in the constitutions of all developed democracies.
17.
However, in the disputed case the Constitutional Court holds that the inequality, i.e. differences arising from the disputed provisions that refer to bringing criminal action for certain criminal acts, is not justified by the position or office of the person. Libel and defamation are criminal acts against the honour and reputation of a person, i.e. they are personal criminal acts linked to the person of the injured party, and it is not in conformity with the Constitution for the aforementioned state officials to have different legal protection in such cases from other citizens of the Republic of
Croatia.
18.
The Constitutional Court ruled that the claim is not founded whereby the disputed provisions violate Article 3 of the Constitution (first sentence), which

6 prohibits censorship, by allegedly producing a self-censorship (freezing) effect on the constitutionally guaranteed freedom of expression.
Although censorship contravenes the character and values of democratic societies and is explicitly forbidden in most countries, the general opinion prevails that censorship nevertheless exists and is usually linked to public communication and the press, although in various concealed forms.
19.
The Constitutional Court holds the claim that the disputed provisions lead to self-censorship is unfounded because the concept of self-censorship is by its very nature subjective. Understood as controlling the expression of thoughts and emotions in the manner and to the extent freely decided by the individuals concerned, it is not possible to legally and objectively establish whether and in what measure any specific legal provision has led to the self-censorship or freezing of free expression.
Assumptions about this are not sufficient constitutional-law grounds for repealing such provisions.
20.
Freedom of thought and expression is also guaranteed in the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter: Convention). Thus, in accordance with Article 9.1. of this Convention everyone has the right to freedom of thought, and in accordance with Article 10.1. everyone has the right to free expression.
The exercise of these freedoms, since it carries 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.(Article 10.2.).
Article 9.2. of the Convention also shows that restrictions of the above freedoms are possible only as prescribed by law and 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.
21.
The European Court of Human Rights, in ruling on issues concerning the protection of human rights and freedoms, must bear in mind possible restrictions of rights and freedoms prescribed by domicile law. When it investigates preconditions for this protection, it must primarily establish whether restrictions are prescribed by law and whether they are necessary in a democratic society. In the opinion of that
Court, legal restriction of free expression is allowed and necessary only to serve some urgent social need, and it must be proportionate and sufficient for the protection of some legitimate goal like, for example, the reputation and honour of others.

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22.
Pursuant to the above, the Constitutional Court has in accordance with Article
53, paragraph 1, of the Constitutional Law on the Constitutional Court of the Republic of Croatia, decided as in the dictum.
PRESIDENT
Smiljko Sokol, LLD, m. p.