Case Summary and Outcome

The Constitutional Court of Slovenia ruled that while the right to freedom of expression protects critical and caustic statements, there is nevertheless a limit to the expression of crude value judgments. Dr. Jože Pirjevec, a historian of Yugoslavian history filed a private criminal prosecution against Dr. Boštjan Marko Turk, a professor of French literature and a conservative commentator, whom he claimed insulted him in a news article. Pirjevec’s birth name was Giuseppe Pierazzi, a legacy of Italian Fascist policies, which he changed to a Slovenian variant as an adult. Turk alleged in his article that Pirjevec’s use of his Italian birth name in early professional writing validated fascist denationalization policies. The Ljubljana District Court found Turk guilty, and the Ljubljana Higher Court dismissed his appeal upholding the first-instance court’s ruling. On February 18, 2016, the Supreme Court acquitted Turk of the alleged criminal offense. The Constitutional Court reversed the Supreme Court’s ruling arguing that in cases where the speaker is not concerned with influencing debate on matters of public interest, but solely with insulting, shaming, or ridiculing someone, such speech may be unlawful.

Facts

The parties to the dispute were Dr. Jože Pirjevec, as the plaintiff, and Dr. Boštjan Marko Turk, as the defendant. Pirjevec was a Slovenian historian, born in Trieste in 1940, who specialized in Yugoslavian history and the Partisan movement. He was an active member of the political party Liberal Democracy of Slovenia. Born Giuseppe Pierazzi due to fascist Italianization, he adopted his Slovenian name in the 1970s. Turk was a Slovenian professor of French literature at the University of Ljubljana and a conservative commentator. Known for his provocative columns, he was politically active in the 1990s with the Slovenian Christian Democrats.

On June 13, 2011, an article by Turk, titled “Referents and Renegades,” was published in the weekly newspaper Reporter. In it, he wrote about Pirjevec:

‘To understand the author’s dilemma regarding the spelling of his personal name, we can refer to the following sentence from one of his later confessions: ‘In doing so, I also underwent a kind of psychoanalytic session, as I changed my name from Giuseppe Pierazzi, which I had been until then, to Jože Pirjevec, which I have been since this book’ (Reasons for Future Cooperation in the Region of Opportunities, Trieste, 2004). An honest person understands the “Region of Opportunities” in this context as a space of red lights and drawn curtains, as a brothel of psychoanalytic sessions where everything is for sale—first honor, then the name, and along with them, the truth, especially historical truth. Pirjevec embarked on an unusual form of apostasy: he Italianized his name, even though there were no external reasons or pressures for doing so. He did the opposite of what fascism had done to the Slovenes of the Primorska region. Fifty-one years after the burning of the National Hall in Trieste, he published a work: Projects and Attempts at Subversive Propaganda among Radetzky’s Slavic Troops in the Spring of 1848. He confidently signed it (as he did all his works at that time) as Giuseppe Pierazzi. Through his own example, he thus confirmed the ‘correctness’ of the fascist denationalization policy.’

Offended by the column, which suggested that Pirjevec Italianized his name—confirming the validity of the fascist denationalization policy— he filed a private lawsuit for the criminal offense of insult under Article 158 of the Slovenian Criminal Code (KZ-1, 2012 with amendments). The Ljubljana District Court, on September 4, 2014, found Turk guilty of the aforementioned crime and imposed a suspended sentence—setting a two-month prison term with a two-year probation period. The Ljubljana Higher Court dismissed Turk’s appeal on May 14, 2015, upholding the first-instance court’s ruling.

On February 18, 2016, the Supreme Court of Slovenia acquitted Turk of the alleged criminal offense, deciding that the act of which he was accused was not a criminal offense under the law.

Pirjevec filed a constitutional complaint arguing that the Slovenian Supreme Court allowed an excessive violation of his right to personal dignity and reputation under articles 34 and 35 of the Slovenian Constitution. He considered that the defendant’s expressions in the newspaper article were derogatory, insulting, mocking, sensationalist, and biased, and claimed that it was evident that the defendant intended to demean him rather than to provide serious criticism.

Decision Overview

Judge Knez, President of the Constitutional Court, delivered the judgement for the Constitutional Court of Slovenia. The main issue for the Court was whether Turk’s statements about Pirjevec—suggesting Pirjevec Italianized his name—were insulting in a criminally relevant way and thus whether the Supreme Court breached Pirjevec ’s right to honor and a good name by acquitting Turk.

Pirjevec argued that the claimed Italianisation of his name was factually inaccurate. He said that the comparisons with fascism in connection with a reproached apostasy were not protected statements by freedom of expression. The plaintiff held that the Supreme Court allowed for an excessive interference with his right to honor and good name, as enshrined in articles 34 and 35 of the Slovenian Constitution, since the Turk’s expressions were contemptuous, insulting, teasing, mocking, sensationalistic, and tendentious. To him, the intent to belittle was evident at first glance.

According to Turk, the contested expressions were not statements of fact but merely value judgments on specific conducts by Pirjevec. These value judgements supposedly were based on the undisputed fact that the plaintiff changed his name and surname gradually from the Italian to the Slovenian version. Since Pirjevec was a public figure, he should have expected that such actions would raise public interest. While the plaintiff might have felt insulted, the defendant’s intention to insult was not evident.

To issue a decision, the Court analyzed the collision between the rights to honor and a good name and the right to freedom of expression. It outlined first the scope of the latter. The Court considered that the right to freedom of expression included freedom of thought, speech, and journalistic expression. To it, “for a discussion to be truly free, an individual’s right to express their opinions must generally be protected, regardless of whether the statement is coarse or neutral, rational or emotionally charged, mild or aggressive, beneficial or harmful, correct or incorrect.” [para. 16] Nonetheless, the Court held that limits may be set “where the speaker’s intent is no longer to influence the debate on matters of public importance but merely to insult another person, and the reader may perceive the expression as an attack on that person’s character, to humiliate, degrade, cause contempt, or ridicule.” [para. 16]. Upon analyzing the Turk’s statements, the Court focused on the extent to which the defendant and the plaintiff were public figures, since it held that “the boundaries of acceptable criticism largely depend on the societal role of the person concerned.” [para. 16]

The Slovenian Constitutional Court has consistently drawn a distinction between absolute and relative public figures, holding that, due to their public roles, individuals in these categories must tolerate varying degrees of intrusion into their privacy and personality rights. Among absolute public figures, politicians and holders of public office are obliged to tolerate the most severe yet permissible intrusions of this kind. Other public figures and individuals who do not engage in public activities are obliged to tolerate only milder invasions of their rights.

The Court held that Pirjevec was a well-known historian with extensive publications who participated in civic affairs and was thus a public figure. Hence, it stated that “negative reactions toward him were expected to be sharper, and thus the threshold for acceptable critical reactions should be correspondingly higher.” [para. 24] However, the Constitutional Court disagreed with the Supreme Court’s opinion that the plaintiff was an absolute public figure and instead held that he was a relative public figure. To reach this conclusion, the Court underscored that “based on the established facts, the complainant did not hold public office or actively engage in politics.” [para. 25] Therefore, the Court held that Pirjevec was not an absolute, but a relative public figure. Hence, he was not required to endure the most intense attacks on his right to honor and a good name.

When analyzing the question of whether the statements expressed in the news article by Turk were made with contempt, or whether they intended to foster public debate on Pirjevec’s particular actions—such as gradually changing his name from an Italian to a Slovenian version—, the Court sided with Pirjevec. It stated that the “key question in this assessment is whether the accused’s statement was directed at criticizing the complainant’s actions (ad rem) or whether its purpose was the personal humiliation and shaming of the complainant (ad personam).” [para. 29] On this point, it said that “when critical and sharp statements are not directed at issues subject to public debate but instead shift to a personal level (ad personam), the question arises whether they were made solely to disparage the affected person.” [para. 29]

Considering this, the Court held that Turk’s statements referred to Pirjevec as a person. To it, the contested expressions disregarded Pirjevec’s Slovenian identity and symbolically supported the occupying regime, which could deeply offend Slovenes from the area. Thus, for the Court, the statements were objectively insulting. It noted that the offense’s subjective impact was particularly strong for Pirjevec as the victim, given that his public and cultural activities clearly contradicted Turk’s claims. The Court further stated, “in this context, the accused’s claims about the complainant’s Italianization of his name can only be understood as highly offensive, humiliating, and disparaging.” [para. 30]

Moreover, the Court considered that the intent to disparage was “undoubtedly evident from the context of the disputed article.” [para. 31] In parts of it, Turk stated that Pirjevec was a “covert voyeur” and “perverse in character.” To the Court, this was neither substantive nor serious criticism. It also held that the title of the article (“Referents and Renegades”) reflected that “the disparaging tone [was] not only clearly evident but also predominant in the disputed article” from the beginning. [para. 33] Additionally, the Court said that “in assessing the conflict of the rights in question, it is also relevant whether there is a sufficient factual basis for a value judgment, especially when it is particularly offensive.” [para. 34] In light of Turk’s expressions, it concluded that there was not a sufficient factual basis for the claims made by Turk.

Accordingly, the Court held that the statements made in Turk’s article constituted a breach of Pirjevec’s right to honor and a good name and that the Supreme Court’s decision from February 18, 2016, violated his rights under articles 34 and 35 of the Constitution.