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) held that it is in violation of Article 10(2) of the European Convention on Human Rights (ECHR) for a state to impose too-high fines on someone for expressing a personal opinion and discussing issues of public importance that may also offend a public figure, especially politician.
In the present case, Zoran Filipović, a former tax inspector and current vice president of the local unit of the Demo-Christian party, was criminally convicted and had to pay civil damages for the allegations he made about the Mayor of Babušnica at a political summit. At the 2001 political summit to discuss the current work of the municipality, Filipović made public allegations against the work of the Mayor and stated that, through his misconduct while heading the state-run company, Lisca, the Mayor had “‘deprived the state of 500,000 German Marks’ in revenue” (for which, in his role as tax inspector, Filipović had filed criminal charges against the Mayor) [para. 16].
Based on these statements, the Mayor pressed criminal charges for defamation against Filipović, and, in 2002, a municipal court found him guilty for defamation and ordered him to pay 6.000 Yugoslavian dinars and the costs of the proceedings. The court had reached this conclusion after finding that this was a public summit where many important state officials were present and that the statements were false because Filipović had not supported them with any evidence. On appeal, a district court confirmed the fine and dismissed appeal, but concluded that this was not defamation but rather constituted insult.
In 2004, the Mayor pressed civil charges against Filipović for mental anguish. The court found Filipović guilty and ordered him to pay nearly 2000 EUR, which is equal to Filipović’s salary for six months. The court justified the amount of the fine with the fact that the Mayor is very important public person who needs to be compensated properly.
After an unsuccessful appellate procedure, Filipović lodged this complaint with the ECtHR, stating that his right to freedom of expression had been violated with the excessive fine from the civil judgment.
The ECtHR unanimously found that the Serbian government had breached Article 10 of the ECHR.
The government of Serbia argued that allegations about misconduct of mayors are factual statements that can be proven, not value judgments, and that Filipović had not submitted any evidence to prove his allegations. Further, the allegations were made at a high-level summit, where many important officials were present, with the sole purpose to embarrass and insult the mayor of the municipality. Finally, government argued that the decision to impose civil fines was based on Filipović’s earlier criminal conviction. Filipović asserted that the amount he had been fined was too high and was not proportional, and that its imposition would therefore lead to a chilling effect on free speech.
In its decision, the ECtHR emphasized the importance of free expression, especially when the subject of the speech is a politician and the speech relates to his official duties. In that regard, the ECtHR stressed that when it comes to setting penalties, “the amount of compensation awarded must ‘bear a reasonable relationship of proportionality to the … [moral] … injury … suffered’ by the plaintiff in question” [para. 56]. The ECtHR concluded Serbia’s penalty scheme was a justifiable limitation of article 10 of the ECHR, as it was provided by law and had a legitimate aim, but that it did not meet the requirement of necessity in democratic society for the following reasons.
First, the Mayor was public person, discussing matters of public interest at a closed political summit where the other participants had come to express their opinion in regard to the work of municipality. Second, based on Filipović’s statements, the ECtHR found that he had a legitimate reason to believe the truth of his allegations. Finally, the amount of the fine imposed was almost equal to six months of Filipović’s salary, which was excessive.
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 ECtHR that everyone has a right to freely express his positions and opinions, especially when it comes to matters of public importance. Also, when deciding on the penalty for free speech, factors have to be taken into account to meet the proportionality requirement, because too-high penalties could have a chilling effect on future expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Decisions by the ECtHR are binding upon the parties involved. According to the Constitution of Serbia, the general rules of international law and international treaties that Serbia has accepted are part of its domestic legal system and have direct application. The Constitution also establishes a persuasive precedent for international and regional human rights mechanisms.
Let us know if you notice errors or if the case analysis needs revision.