CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 22 mai 2012

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He was represented before the Court by Mr   J.   Hribernik, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mr   L.   Bembič, State Attorney. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a member of the National Assembly and a delegate representing the Slovenian Democrat Party (SDS) at the time the impugned events took place. On 4 December 1997, at the sixteenth extraordinary parliamentary session, the applicant made the following statement about I.K., who was at the time President of the National Council, and was running for election as the Slovenian judge of the European Court of Human Rights:   “... And where are we today, my honourable colleagues? Where are we today? Yesterday, I was invited by the President of the Republic, together with other leaders of parliamentary groups, to attend a meeting concerning the appointment of judges to the Constitutional Court and the European Court of Human Rights. I have to say that I was aghast when I noticed the name of I.K., protector of the biggest mafia boss, whose mandate as a member of the National Council is soon to end! This is proof that some people have not yet realised that communism is over. How can the name of such a mafia godfather appear on such a list?! ...” The day after the incident, the above statement by the applicant was reported in the biggest Slovenian newspaper, Delo . On 22 December 1997 I.K. brought a civil action against the applicant, alleging that the statement had violated his personality rights ( osebnostne pravice ), in particular his reputation and good name, and had interfered with his personal integrity and been intended to devalue his previous work. He emphasised that the applicant’s statement had been made during his campaign for election as a judge of the European Court of Human Rights. I.K. sought 5,000,000 Slovenian tolars (SIT) in respect of non-pecuniary damage, and reimbursement of costs and expenses. In his reply to the action, the applicant stated that I.K. had been well aware of the fact that D.K., the chairman of a large Slovenian gaming chain, HIT, who had also been a member of the National Council at the time and had been involved in the so-called “HIT scandal”, had remained at liberty as a result of the acts of I.K. and the National Council. He submitted to the domestic court several newspaper articles concerning the National Council’s alleged role in the lack of prosecution of D.K. The articles, most of which were written by the same reporter, V.V., and mainly related to the period of December 1993, insinuated that the National Council and its president had blocked the prosecution and trial of D.K. by failing for a prolonged period of time to decide whether D.K.’s parliamentary immunity from prosecution should be formally lifted. It could also be seen from these articles that there was a disagreement between the National Council, in particular I.K., on the one hand, and the prosecution authorities on the other, as to whether the National Council was called on to decide on this matter in the absence of D.K.’s explicit reliance on immunity. The articles furthermore showed that the majority of the National Council had voted against D.K.’s detention on 28   December 1993. In his submissions to the domestic court, the applicant referred to V.V.’s article, in particular to the following statement: “The purpose of I.K.’s latest manoeuvre can be explained only with reference to some political lobby which finds the prospect that the director of HIT might be detained too dangerous.” The applicant also stated that he had invested a lot of work in investigating gambling businesses, and that he believed that the activities of those accused in this scandal qualified them as mafia. Moreover, he argued that he had believed that I.K. in his role as the president of the National Council had prevented the initiation of criminal proceedings against D.K. The applicant further submitted that he had not meant to insult I.K.; he had only been expressing his disapproval and exasperation at I.K.’s running for election as a judge of the European Court of Human Rights. His statement, although offensive, had been, in the light of the foregoing, reasonable and justifiable. Lastly, the applicant argued that he had acted i n his capacity as a member of the National Assembly and that the statement had been made in the context of political criticism. The applicant proposed that the Ljubljana District Prosecutor and the General Public Prosecutor should be examined as witnesses. On 28 September 2001 the applicant submitted his further pleadings, in which he argued that he should be protected from civil liability by parliamentary immunity. He also stated that D.K. had been sentenced to a long prison term in the meantime. In addition, he proposed that F.K., a former member of the National Assembly, should be examined as a witness. Further to a suggestion by the judge that settlement negotiations should be initiated, the applicant, on 10 October 2001, submitted a declaration in which he expressed his regret and apologised for the statements in question, but refused to withdraw them. On 7 November 2001 the court rejected the applicant’s request for the proceedings to be discontinued, finding that the applicant had no legal grounds for relying on parliamentary immunity in civil proceedings. At the hearing on 1 March 2002, the applicant withdrew all his requests for the examination of witnesses. After the hearing, the Ljubljana District Court adopted its judgement, in which it upheld I.K.’s claim in part. The court found that the applicant’s statement implied that I.K. was involved in a criminal organisation which employed violence or corruption in pursuit of pecuniary interest or social power (which was the definition of corruption). The court, while acknowledging that I.K. may have been exposed to public criticism, found that the applicant’s statement did not amount only to an argument for opposing I.K.’s candidature for the post of judge of the European Court of Human Rights, or acceptable criticism of the work of I.K. The court found that the impugned statement was an offensive statement of fact. The mere polemics in the articles submitted by the applicant concerning whether the National Council had obstructed the prosecution of D.K., were not evidence that could lead the court to conclude that the impugned statement was true. The court further found that the applicant’s statement must have caused serious harm to I.K. It referred to the fact that I.K. was a well-known figure in public life; in his long career he had been a university professor of constitutional law, the dean of a law faculty, Principal of the University of Ljubljana, a judge of the Yugoslavian Constitutional Court, and President of the National Council. The court also reiterated that the applicant could not be exempted from civil liability since parliamentary immunity was limited to criminal proceedings only. Finally, the court ordered the applicant to pay to I.K. SIT 500,000 in compensation, and SIT 148,465 in costs. Both parties appealed. In his appeal, the applicant alleged that Article 83 of the Constitution conferred on members of the National Assembly all kinds of non-liability, including civil non-liability. I.K. appealed on account of the amount of damages awarded to him. On 12 March 2003 the Ljubljana Higher Court dismissed both appeals. As regards the applicant’s appeal, the court noted that the applicant had confined himself to the question of parliamentary immunity and that it should thus likewise focus on this issue. It further noted that the purpose of parliamentary immunity as enshrined in Article 83 of the Constitution was to protect the interests of the National Assembly as a whole by ensuring its proper functioning. However, according to the text of Article 83, members of the National Assembly enjoyed immunity only from prosecution in criminal proceedings. Any other interpretation of the above ‑ mentioned provision would be incompatible with the principle of equality before the law and would prejudice the rights enjoyed by “ordinary people” compared with representatives of the State. Finally, the court stressed that the applicant was protected, like any other person, by his right to freedom of expression. However, referring to Article 10 of the Convention, the court observed that this freedom also carried certain limitations. Lastly, the Ljubljana Higher Court noted that the first-instance court had not found that the applicant’s undoubtedly offensive statement could be regarded as an exercise of his freedom of expression, nor had it found any other elements that would exonerate the applicant from his civil liability. The court further rejected I.K.’s appeal, finding that the compensation awarded had been appropriate and that this case could not be compared to cases where specific incriminating statements had been made on television. On 15 May 2003 the applicant lodged a constitutional appeal in which he alleged a breach of his right to freedom of expression and of his alleged right to parliamentary immunity in civil proceedings. As regards the former, the applicant claimed that the lower courts had failed to consider all the circumstances of the case and to properly resolve the conflict between the rights in question. They should have applied a strict test in balancing his freedom of expression against the rights of others. In particular, they should have attached weight to the fact that the applicant had at the time been a member of parliament and had made the statements in parliament when exercising his parliamentary duties, that I.K. had been President of the National Council – and as such a political and public figure – and that the statement concerned matters of public importance, namely I.K.’s candidature for election as a judge of the European Court of Human Rights, and the “HIT scandal”. The applicant argued that in circumstances such as those of his case, the court should only examine whether the defendant believed in what he said. However, in his case, the lower courts had failed to assess his subjective belief. The fact that statements were not objectively true should not by itself lead to a finding in favour of the plaintiff. That would result in self-censuring, which would undermine free public debate. The applicant also referred to the Court’s case-law, for example, Castells   v.   Spain , 23 April 1992, Series A no. 236 , and Piermont v. France , 27   April 1995, Series A no. 314. As regards parliamentary immunity, the applicant stated that it was unlimited in many countries and should be so in Slovenia. He argued that Article 83 of the Constitution should be interpreted as also covering civil liability. Finally, the applicant requested that he either be granted immunity by the Constitutional Court, or that the latter apply a strict test involving an assessment of subjective intent or belief, whereby the entire burden of proof would be shifted onto the plaintiff. The Constitutional Court declared the applicant’s constitutional appeal inadmissible. In its decision of 13 January 2004, the Constitutional Court firstly emphasised, in relation to the issue of parliamentary immunity, that the Constitution explicitly limited immunity to prosecution in criminal proceedings. It noted that civil liability was distinct and Article 83 of the Constitution did not refer to it. Secondly, as regards the applicant’s complaint of a breach of his right to freedom of expression on account of the lower courts’ failure to strike the right balance between his freedom of expression and protection of I.K.’s personal rights, the Constitutional Court found that the applicant had raised this complaint for the first time in his constitutional appeal. In particular, the applicant had limited his appeal to the Ljubljana Higher Court to the issue of immunity, and the higher court had consequently limited its assessment exclusively to that question. The applicant, in the Constitutional Court’s view, should have been aware that as he had not disputed in his ordinary appeal the merits of the first-instance court’s assessment of the permissibility of his statements in the absence of immunity from civil liability, the Constitutional Court would not be able to go into this matter. It therefore rejected this part of the constitutional appeal on account of non-exhaustion of legal remedies. The Constitutional Court’s decision was served on the applicant on 19 January 2005. B.     Relevant domestic law 1. Constitution Article 83 of the Constitution of the Republic of Slovenia provides:   “No member of the National Assembly shall be criminally liable for any opinion expressed or vote cast at sessions of the National Assembly or its working bodies. No member may be detained, nor, where such member claims immunity, may criminal proceedings be initiated against him without the permission of the National Assembly, except where such member has been apprehended committing a criminal offence for which a prison sentence of over five years is prescribed. The National Assembly may also grant immunity to a member who has not claimed such immunity or who has been apprehended committing such criminal offence as referred to in the preceding paragraph.” 2.   The 1978 Obligations Act, as amended The 1978 Obligations Act ( Zakon o obligacijskih razmerjih , Official Gazette of the Socialist Federal Republic of Yugoslavia, nos. 29/78, 39/85, 45/89 and 57/89) provided in section 200, inter alia , that anyone who had suffered mental anguish as a consequence of an attack on his honour or reputation may, depending on its duration and intensity, request compensation. COMPLAINTS The applicant complained under Article 10 of the Convention about a judgment by which he had been ordered to pay compensation with respect to statements which he alleged had a basis in true events which had occurred in 1993 and 1994 and which he had made as a member of parliament during a political debate in parliament. He also complained that members of the Slovenian parliament, including himself, did not enjoy immunity from civil liability. In addition, the applicant complained that the proceedings had lasted unreasonably long, in breach of Article 6 § 1 of the Convention. THE LAW A.     Complaint under Article 6 § 1 of the Convention The Court notes that on 24 March 2009 the applicant signed a settlement agreement with the State Attorney’s Office in which the latter acknowledged that the length of the proceedings had been in breach of the applicant’s right to trial within a reasonable time and agreed to pay the applicant compensation for non-pecuniary damage. The Court further takes note of the fact that on 25 March 2009 the State Attorney General ordered the Joint Finance and Accounts Department to pay the agreed amount into the applicant’s bank account. The Court refers to Article   37 of the Convention which, in the relevant part, reads as follows: “1.     The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that (b)     the matter has been resolved; ... However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” The Court takes note that following the settlements reached between the parties the matter has been resolved at the domestic level (Article 37 § 1 (b) of the Convention). It is satisfied that respect for human rights as defined in the Convention and its Protocols does not require the examination of this part of the application to be continued (Article 37 § 1 in fine of the Convention). It should thus be struck out of the list of cases. B.     Complaint under Article 10 of the Convention The applicant complained about a violation of his rights under Article 10 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The Government argued that the applicant failed to challenge in his ordinary appeal the first-instance court’s judgment in so far as it concerned the balance between his right to free speech and I.K.’s personality rights. By limiting his appeal to the question of parliamentary immunity only, the applicant had failed to exhaust domestic remedies. The Government further argued that the constitutional appeal, had it been admissible, would have been an effective remedy. In this connection, the Government referred to previous decisions of the Constitutional Court, namely decision nos.   Up-2940/07 and Up-406/05. In those cases the Constitutional Court had looked at the reasons for restrictions on freedom of expression and had found that the restrictions were excessive. The Government further argued that Article 83 of the Constitution was clear in that it did not provide for parliamentary immunity against civil liability. The applicant argued that he had exercised his right to free speech in the parliament and that statements such as those made by him were acceptable by all European standards. The Court recalls that any interference with the exercise of the freedom of expression should satisfy the requirements of paragraph 2 of Article 10. Among others, the infringement must be "proportionate to the legitimate aim pursued" and the reasons adduced to justify it must be "relevant and sufficient" ( Lingens v. Austria , 8 July 1986, §§ 35 and 40, Series A no. 103). The Court further notes that the applicant’s complaint under Article 10 of the Convention seem to have two aspects. Firstly, the applicant argued that the parliamentary members in Slovenia should have enjoyed immunity from civil liability. Secondly, he argued that the interference in his case had not been necessary and proportionate in the circumstances. As regards the applicant’s argument that he should have been protected by parliamentary immunity even with respect to civil proceedings, the Court notes that this argument relates to the interpretation of domestic legislation; a matter over which the national courts have sole jurisdiction (see Countant   v.   France (dec.), no. 17155/03, 24 January 2008). It further notes that in the present case the domestic courts at different levels of jurisdiction, including the Constitutional Court, agreed that there was no legal basis for granting the applicant parliamentary immunity in civil proceedings. Having regard to the finding of the domestic authorities on that issue, the Court finds this aspect of the Article 10 complaint to be manifestly-ill founded under Article 35 § 3 (a). As regards the second aspect of the applicant’s complaint, namely the one concerning the necessity of the interference, the Court emphasised in Jerusalem v.   Austria (no.   26958/95, §§ 36 and 40, ECHR 2001-II) that the parliament, or a comparable body, is the essential forum for political debate and very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein. Having said that, the Court observes that the applicant in his appeal against the Ljubljana District Court’s judgement complained only about the interpretation of Article 83 of the Constitution, namely the scope of parliamentary immunity. He did not complain about the necessity of the interference, in particular the reasons adduced in finding the applicant responsible for damage to I.K.’s personality rights. In this connection, the Court reiterates that Article   35 § 1 requires that the complaints, including the relevant arguments, intended to be made subsequently before the Court should have been raised before the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, amongst many other authorities, Cardot v.   France , 19 March 1991, § 34, Series A no. 200). It notes that as a result of the applicant’s failure to raise the argument concerning the necessity of the interference with his freedom of expression in his ordinary appeal, the Constitutional Court declared this part of his constitutional appeal inadmissible and consequently declined to examine its merits. Likewise, the Court, in accordance with its subsidiarity role, cannot examine this aspect of the complaint, which was rejected at the domestic level for failure to respect formal requirements. It must thus be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1. In view of the above the complaint under Article 10 of the Convention should be declared inadmissible under Article 35 § 4 of the Convention For these reasons, the Court unanimously Decides to strike the application out of its list of cases in so far as it concerns the complaint about the length of proceedings; Declares inadmissible the remainder of the application.   Stephen Phillips   Mark Villiger   Deputy Registrar   President