Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The European Court of Human Rights held that it is in violation of Article 10(2) of the European Convention on Human Rights to criminally prosecute journalists for their publications on issues of public debate that may also offend a public figure, unless they impose most serious attack on an individual’s fundamental right.
The present case arises out of the criminal convictions of two Serbian nationals (Applicants) in 2005. The Applicants were journalists for the weekly local newspaper Kikindske in the city of Kikinda, Serbia.
In April 2004, the first Applicant published an article in the newspaper, criticizing the domestic courts for imposing criminal sanctions against him and another journalist for their alleged offense of defamation. He also implicitly compared the attorney who prosecuted the cases to a blonde women.
In the same issue, the second Applicant was the editor of the newspaper’s comics column, in which the prosecuting attorney’s name was inserted next to a photograph of an unclothed blonde woman.
Shortly after the publication, the attorney brought a criminal defamation action against the Applicants for their alleged insults.
In February 2005, the Municipal Court of Kikinda convicted and fined each Applicant in the amount of EUR 150.00. The court held that the publication resulted in insulting the attorney because it objectively humiliated him through comics that crossed the acceptable boundaries.
In May 2005, the Zrenjanin District Court upheld the convictions. Subsequently, in October 2005, the Applicants filed a complaint in European Court of Human Rights against the government of Serbia and Montenegro. Following the independence of Montenegro, the government of Serbia remained the sole respondent in the complaint.
The European Court of Human Rights unanimously rendered its judgement.
The underlying issue for the Court was whether the criminal prosecution of Applicants for their purported offensive statements about the attorney along with their criticism of the government was a necessary interference with their freedom of expression under Article 10(2) of the European Convention on Human Rights.
The Applicants argued that the statements were nothing more than a satirical criticism of the domestic courts for imposing criminal sanctions on journalists. They also stated that their objective behind the humorous comments about the attorney was merely to raise public awareness about pressing economic issues in the city and as a public figure, the attorney must have a higher tolerance in accepting criticism than private individuals.
The government of Serbia, on the other hand, argued that the criminal conviction of the Applicants was justified because they intended to undermine the attorney’s reputation and that their criticism lacked general interest.
At the outset, the Court held that the freedom of expression “is applicable not only to “information” or “ideas” which are favourably received or regarded as inoffensive, but also to those which offend, shock or disturb many other authorities.” [para. 28] It also emphasized that the governmental restriction on the press is “circumscribed by the interests of a democratic society in ensuring and maintaining a free press.” [para. 30]
As applied to the case in hand, the Court found that the first Applicant’s satirical comparison of the attorney to a blonde woman did not amount to a personal insult because the statement taken as a whole raised an important issue of general interest by questioning the domestic courts’ practice of imposing sanctions on journalists. It reaffirmed that under Article 10(2) of the Convention, “there is little scope for restrictions on the debate of public interest questions.” [para. 32]
As to the second Applicant, the Court viewed his insertion of the attorney’s name near a photograph of an unclothed woman as a joke rather than a malicious intent to offend his dignity because it was published in the newspaper’s comics column. The Court also described the attorney as a public figure because after representing the management of a large factory, he became a well-known figure in the community. According to the Court, “a private individual lays himself open to public scrutiny when he or she enters the arena of public debate.” [para. 34]
Lastly, the Court pointed out that criminal prosecution of journalists for their purported insults that involve issues of public debate, “should be considered proportionate only in very exceptional circumstances involving a most serious attack on an individual’s rights.” [para. 39]
The Court concluded that the criminal conviction of Applicants was not a necessary inference with their freedom of expression under Article 10(2) of the European Convention on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision confirms the long standing position of the European Court of Human Rights that the government’s interference with free press is specially limited when the speech concerns a matter of public debate, even if it offends or insults a public authority. The Court, however, found that it is within the parameters of the Article 10(2) of the European Convention to impose criminal sanctions on insults raising public debates that involve a most serious attack on an individual’s rights.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“It is in the first place for the national authorities to assess whether there is a “pressing social need” for a restriction on freedom of expression and, in making that assessment, they enjoy a certain margin of appreciation.”
“The private individual lays himself open to public scrutiny when he or she enters the arena of public debate.”
“There is little scope under Article 10 § 2 of the Convention for restrictions on the debate of public interest questions.”
“When assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account.”
“Freedom of expression is applicable not only to “information” or “ideas” which are favorably received or regarded as inoffensive, but also to those which offend, shock or disturb.”
Case significance refers to how influential the case is and how its significance changes over time.
The decision is binding upon the parties involved. According to the Constitution of Serbia, the general rules of international law and international treaties that Serbia accepted are part of domestic legal system and has direct application. It also establishes a persuasive precedent for international and regional human rights mechanisms.
Given the fact that generally all international instruments aimed to the protection of human rights have similar provisions, the decisions of the ECtHR even though they do not have direct application of interpretation of these instruments, have significant value as a guidance in interpretation of them, in order to provide the highest level of protection of human rights.
In this Amicus brief the direct reference was made to Bodrozic and Vujin v. Serbia case.
Let us know if you notice errors or if the case analysis needs revision.