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 (“ECtHR”) unanimously ruled that Serbian courts violated Mr. Bodrožić’s right to freedom of expression by finding him liable for insult in criminal proceedings for calling a local controversial historian (J.P.) a fascist and an idiot. The domestic courts reasoned that the applicant in the press article failed to respect the human dignity of J.P. by calling him a fascist which was an untrue fact. The ECtHR, contrary, argued that the impugned article contributed to the debate of public interest and that the word fascist was an acceptable criticism under Article 10 of the European Convention on Human Rights (ECHR).
The applicant in this case was Mr. Bodrožić, a journalist and member of a political party. At the time of the impugned events, he was also the editor of the local weekly newspaper. On 3 October 2003, the applicant published an article about a certain historian, J.P., entitled ‘The Floor is Given to the Fascist’ (‘Rečima fašista’). In his article, the applicant described J.P. as a historian and supporter of former Yugoslav and Serbian political leader Slobodan Milošević, who was known for insulting and defaming opponents of Milošević’s regime. The article alleged that J.P., during an interview on the Serbian TV show “Unbuttoned”, used the opportunity to express “his fascist-oriented point of view” by stating that “Baranja was under Croatian occupation and that Slovaks, Romanians and above all Hungarians in Vojvodina were colonists…there are no Croats in Vojvodina…, whereas the Hungarians are mainly Slavs… because they have ‘such nice Slavic faces’…”. Due to such allegations, the applicant characterized J.P. as an idiot and finished the article by predicting that J.P. “will undoubtedly… contaminate our environment for a long time to come” [para 7].
The insult led J.P. to institute private criminal proceedings against the applicant. He later instituted new private criminal proceedings for defamation. Since the applicant failed to appear at two previous hearings, he was taken by police officers to the Zrenjanin Municipal Court (ZMC). ZMC opined “that describing someone as a ‘fascist’ was offensive, given the historical connotations of that expression ‘representing tragedy and evil’. The court rejected the applicant’s argument that he was merely expressing his political views, since forming fascist political parties or movements was illegal under domestic law. The applicant had consequently failed to respect the human dignity of J.P. If he had felt personally offended by any of J.P.’s statements made on the television program or elsewhere, the applicant should have sought appropriate judicial relief” [para. 17].
Zrenjanin District Court (ZDC) upheld the first-instance court’s judgment “since the word ‘fascism’ meant the extinction of people based on their nationality and/or religion, this had clearly not been the object of J.P.’s statements. The applicant’s article had thus the sole aim of insulting J.P. by using this term and additionally calling him ‘an idiot’” [para. 18].
On 23 August 2005, the applicant filed an application to the ECtHR for violation of his rights to freedom of expression and fair trial.
The main issue before the European Court of Human Rights was whether the Serbian courts had violated the applicant’s freedom of expression by imposing a criminal sentence due to his article in the local newspaper. On the one side, the Serbian Government argued that using terms such as “idiot” and “fascist” was objectively defamatory and untrue because J.P had never been a member of the fascist movement in Serbia which, in fact, had never existed as a group. According to the state representative, the applicant failed to act in good faith and did not follow journalistic ethics by using such harsh and unsubstantiated words. On the other side, the applicant stated that the criminal conviction violated his right to freedom of expression protected by Article 10 of ECHR and “reiterated that J.P.’s statements were harmful to Vojvodina’s [an autonomous region in Serbia] multinational society and that, as a journalist, he had felt obliged to react to them publicly” [para. 43].
The ECtHR based its reasoning on the issue of necessity in a democratic society; it was undisputed that the interference was based on law and that it served a legitimate aim.
The Court reiterated the general standards on Article 10 of ECHR, especially invoking the importance of the press in democratic societies saying that the press’s “duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation” [para. 47].
The ECtHR relied on previous cases Oberschick v Austria ECtHR  20834/92 and Feldek v. Slovakia ECtHR  29032/95 in which the words “fascist” and “idiot” were an acceptable criticism due to certain circumstances. The Court, therefore, sought to consider the applicant’s statements within the given context. Namely, J.P.’s comments were made to “the existence and the history of national minorities in Vojvodina, a multi-ethnic region, 35% of whose population was non-Serbian” [para. 52]. This minority comprised Hungarians, Slovaks, Croats, and others. He stated that “all Hungarians in Vojvodina were colonists” and that there were no Croats in Vojvodina. The Court found “it [was] understandable why the applicant, who himself had different political views, might have interpreted J.P.’s statements as implying a certain degree of intolerance towards national minorities. The fact that he considered it his duty as a journalist to react to such statements publicly is also understandable” [para. 52]. Noting Feldek v. Slovakia, the ECtHR considered “that calling someone a fascist, a Nazi or a communist [could not] in itself be identified with a factual statement of that person’s party affiliation” [para 52]. Based on this reasoning, the ECtHR found that expressions by the applicant are value judgments, the veracity of which is not susceptible of proof [para. 53].
The applicant’s words were harsh, and one might consider them offensive. However, the Court reasoned that the applicant’s “statements were given as a reaction to a provocative interview and in the context of a free debate on an issue of general interest for the democratic development of his region and the country as a whole” [para. 56].
Since the Government argued that J.P. is a private person and, thus, entitled to a greater degree of protection than public figures, the ECtHR also analyzed this aspect of the case. Contrary to the Government’s standing, the Court said that “having published a book on a subject of wide public interest and having appeared on local television, he [J.P.] must have been aware that he might be exposed to harsh criticism by a large audience. He was therefore obliged to display a greater degree of tolerance in this context” [para. 54].
Lastly, the ECtHR pointed out that the domestic courts had failed to carry out “an adequate proportionality analysis to assess the context in which the expressions had been used and their factual basis”. Consequently, the Court concluded “that the reasons adduced by the domestic courts cannot be regarded as ‘relevant and sufficient’ to justify the interference at issue” [para. 57].
Bearing in mind the above said, the Court found a violation of Article 10 of ECHR and awarded the applicant 500 euros for non-pecuniary damage.
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Cited in Berm., Richardson v. Lyndon Raynor (2011) SC (BDA) 39 CIV
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