Full case report

Lepojic v Serbia

Reference Application no. 13909/05
Court European Court of Human Rights

Judge Tulkens (President), Baka, Barreto, Ugrekhelidze, Zagrebelsky & Mularoni (Judges)

Date of Judgment 6 Nov 2007


Summary

Human rights – Freedom of expression – Art 10, ECHR – Necessary in a democratic society – Protection of the reputation of others – Defamation – Criminal defamation – Statements on matter of public interest – Political discussion


Facts

L was the President of the Babušnica branch of the Demo-Christian Party of Serbia. During an election campaign in 2002 he wrote an article which was published in a newsletter. The article was very critical of the Mayor of Babušnica, alleging that he was legally no longer Mayor, and that he was suspected of various criminal offences, but that he nevertheless “continued with his near-insane spending of the money belonging to the citizens”.

The Mayor filed a private criminal action. L was found guilty of criminal defamation and given a fine, suspended for 1 year. Some of the statements in the article were found to be untrue and intended to belittle the Mayor. The Mayor then brought a civil claim, the result of which was that L was ordered to pay compensation and costs.


Issue

Whether L’s conviction and the orders to pay compensation and costs were a violation of his right to freedom of expression under Article 10 of the Convention.


Held

Finding a violation of Article 10 (Judges Zegrebelsky and Kreca dissenting):

The penalties imposed were prescribed by law and in pursuit of a legitimate aim, but were not proportionate to the aim pursued and therefore not necessary in a democratic society. The article was written during an election campaign and focused on matters of public interest, namely the performance of public duties by a public figure. It was not a gratuitous personal attack. The reasons given by the domestic court were relevant but not sufficient given the amount of compensation and costs awarded and the suspended fine.


Comment

Although the House of Lords in Reynolds rejected a defence to defamation claims based on discussion of political matters, the Strasbourg court has repeatedly emphasised, and did so once again in this case, that “the limits of acceptable criticism are wider where the target is a politician”. Nonetheless, it is surprising to find the court holding that there has been a violation of Article 10 for verdicts against an author where factual statements have been shown to be untrue and it is doubtful that the author ever had any reasonable grounds for believing them. Judges Zagrebelsky and Kreca dissented for this reason. Perhaps if there had been no criminal element and the compensation award had been lower, no breach of the Convention might have been found.


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Instructing Solicitors

Belgrade Centre for Human Rights for L