Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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The European Court of Human Rights (ECtHR) found that Serbia violated of Article 10(2) of the European Convention on Human Rights (ECHR) when it upheld a criminal conviction and civil penalties against Zoran Lepojić for his publication of an article that called into question the competency of a local Mayor and made allegations against the Mayor for acts carried out in his official capacity.
The present case arose in 2005 and is based on the criminal conviction and subsequent civil proceedings against Zoran Lepojić, who was President of the regional unit of the Demo-Christian Party of Serbia and a member of its central board.
In 2002, during election campaigning, Lepojić wrote an article that was published in the local newspapers that discussed the current Mayor of Babušnica. In his article, Lepojić questioned the position of the Mayor, given that he had been excluded from the party and because of his alleged misconduct while he was president of a state-run company, Lisca. Lepojić also called the Mayor “near-insane” in his spending of the municipality’s money on gala dinners, sponsorship, etc.
After the article was published, the Mayor pressed criminal charges against Lepojić, who was found guilty of defamation. This decision was then confirmed by an appellate court. The court considered Lepojić ‘s accusations about the Mayor’s spending to be unfounded and defamatory since they were not supported by facts. The court also did not believe Lepojić had reasonable grounds to believe that his statements were true.
In 2005, the Mayor filed a separate complaint for civil damages for the mental anguish he claimed to have suffered due to the publication of the article. The court ordered Lepojić to pay fine around 2000 EUR, which was upheld by an appellate court.
Lepojić then lodged this complaint with the ECtHR, arguing the civil and criminal convictions against him for publishing the article constituted a violation of his rights under Article 10 of the ECHR.
The ECtHR rendered a 5:2 judgment, confirming that there had been a violation of Article 10 of the ECHR.
The Serbian government argued that the information published in Lepojić’s article were facts that were subject to verification and were not value judgments. Therefore, because they had not been proven, the allegations against the Mayor in the article about alleged illegal activities and near-insane spending were unfounded and defamatory. Further, the government claimed the Mayor had a right to protect his reputation, both as individual and as a public person, a right that had clearly been violated with the publication of the article.
Lepojić asserted that the criminal and civil convictions constituted a blatant violation of his right to freedom of expression because the article was an acceptable expression of his political views. As for his statements about the Mayor’s spending, which he referred to as “near-insane,” Lepojić argued was indeed a value judgment, not an objective reflection. Finally, Lepojić argued that the Mayor was political figure and public person who, as such, had to tolerate higher degree of critique.
The ECtHR emphasized that freedom of expression encompasses “the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals” and “that the limits of acceptable criticism are still wider where the target is a politician” [para. 74.]. The ECtHR concluded that Lepojić‘s civil and criminal convictions equaled a limitation on his right to freedom of expression. It further held that this limitation had been provided by law and followed a legitimate aim (the protection reputation of others) and was then left to decide whether this limitation was necessary in democratic society.
In this regard, the ECtHR pointed out that the article was written in the context of political debate and that the Mayor had been targeted as a public figure. Further, the words Lepojić used described the Mayor’s behavior in his official capacity and were not directed to his mental state. Therefore, the ECtHR determined that it was clear that the article was not meant to implicate the Mayor in his private life.
Considering the foregoing, along with the amount of the civil fine and Lepojić‘s criminal conviction (which, even though suspended, could be enforced and converted into imprisonment), the ECtHR concluded that this interference was not necessary in democratic society and constituted a violation of Article 10 of the ECHR.
In his partial dissent, Judge Zagrebelsky explained that he considered the article defamatory in part: namely, Lepojić’s allegation about the Mayor having spent government money for his personal needs. Zagrebelsky argued that Lepojić’s had not managed to prove this allegation, and, therefore, he agreed with the domestic courts’ reasoning and found Lepojić’s’s civil and criminal convictions had not violated Article 10.
Judge Kreća also delivered a partial dissent. Kreća agreed with the domestic courts that certain statements were suitable to be factually proven (“near-insane spending” of government money, etc.) and, therefore, that these allegations were clearly defamatory. Kreća also emphasized the specific importance of morals and honor in patriarchal communities such as Babušnica, where these kinds of allegations are taken very seriously.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision confirms the long-standing position of the ECtHR that a government’s interference with free press should be limited when the speech concerns a matter of public debate, even if it offends or insults a public official. The ECtHR emphasized that politicians, especially during election campaigns, have to tolerate a higher degree of critique, particularly if the debate is about exercising their duties. Finally, in regard to sanctions, it is once more highlighted that they have to be proportional: not just in the amount, but also in regard to the type of sanction imposed.
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.
ECtHR decisions 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. It also establishes a persuasive precedent for international and regional human rights mechanisms.
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