CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 juin 2020

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CROATIA   (Application no. 68317/13 )     JUDGMENT   Art 10 • Freedom of expression • Conviction for defamation on account of statements made in the context of defence in another set of criminal proceedings and accusing a third party of witness tampering • Margin of appreciation afforded to State narrower when Art 10 is read in light of an accused’s right to a fair trial • Right of an accused to speak freely without the fear of being sued for defamation whenever his or her speech concerned arguments made in connection with defence • An accused’s statements protected in so far as not amounting to irrelevant or gratuitous attacks and malicious accusations against a participant in the proceedings or any third party • Solid factual basis required for statements with severe consequences for persons concerned • Applicant’s statements having a sufficiently relevant bearing on his defence and thus deserving a heightened level of protection • Impugned statements targeting a well-known public figure required to display a wider level of tolerance to acceptable criticism • Impugned statements supported by some factual basis, having limited consequences and not amounting to malicious accusations • Domestic courts’ failure to strike a fair balance between the competing interests at stake   STRASBOURG   25 June 2020   FINAL   25/09/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Miljević v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Krzysztof Wojtyczek, President ,   Ksenija Turković,   Linos-Alexandre Sicilianos,   Aleš Pejchal,   Pere Pastor Vilanova,   Jovan Ilievski,   Raffaele Sabato, judges , and Abel Campos, Section Registrar , Having deliberated in private on 27 May 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 68317/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Rade Miljević (“the applicant”), on 24 October 2013. 2.     The applicant was represented by Mr Z. Kostanjšek, a lawyer practising in Sisak. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged, in particular, that his criminal conviction for defamation for statements he had made concerning a third party in the context of his defence in another set of criminal proceedings had been contrary to Article 10 of the Convention. He also alleged that the appeal court in the defamation proceedings had lacked impartiality, contrary to Article 6 § 1 of the Convention. 4.     On 8 September 2015 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1944 and lives in Glina. A.     Background to the case 6.     On 4 September 2006 the applicant was indicted in the Sisak County Court ( Županijski sud u Sisku – “the County Court”) on charges of war crimes against the civilian population. It was alleged in the indictment that in 1991 he had participated in the killing of four detained civilians who had been taken from Glina Prison and executed. 7.     Judge S.M. assumed control of the case as the president of the trial panel. During the proceedings, the applicant instructed several lawyers to represent him, including Z.K. 8.     The events related to Glina Prison were of great public interest. A television show called Istraga (“Investigation”) broadcast on a private television channel with national coverage, Nova TV, was dedicated to the incident in Glina Prison. 9.     During the criminal proceedings against the applicant, a number of witnesses for the prosecution and the defence were heard. In his statement, a prosecution witness, I.T., stated that he had come forward with his allegations against the applicant because he had been detained in Glina Prison and he wanted to provide evidence to the prosecuting authorities about what he had experienced in detention. He explained that he had been advised by another witness in the proceedings, P.Š., to get in touch with a certain I.P. However, he had been unable to get in touch with I.P. Later, he had been contacted by a journalist from Istraga and he had taken part in the television show about the killing of the four civilians, the event in relation to which the applicant had been charged. Later on, he had made contact with the prosecuting authorities and volunteered to testify in the proceedings against the applicant. 10.     I.P. is a colonel in the Croatian army and a disabled war veteran who was very active in collecting evidence and otherwise promoting the discovery of crimes committed against Croats during the war in Croatia. He also advised the editors of Istraga as they prepared several shows relating to different events of the war in Croatia. 11.     In his closing arguments at a hearing held on 16 December 2008 the applicant alleged, among other things, that the criminal prosecution against him had been politically motivated and instigated by I.P., who had contacted prosecution witnesses directly and exerted pressure on them, instructing them on how to testify. The applicant also alleged that I.P. had instigated a virulent media campaign aimed at portraying him as a criminal and had led a criminal enterprise against him. 12.     The applicant’s closing arguments were reported by several media outlets. 13.     On 17 December 2008 the applicant was convicted as charged and sentenced to twelve years’ imprisonment. However, on 9 June 2009 that judgment was quashed by the Supreme Court ( Vrhovni sud Republike Hrvatske ). The case was remitted to a different panel of the County Court, not including Judge S.M. (see paragraph 7 above), for further examination. 14.     On 22 November 2012 a trial panel of the County Court acquitted the applicant of the charges. It found that it had been proved that the applicant had taken the four detained civilians from Glina Prison and surrendered them to an armed group of “military policemen” who had later executed them. However, it had not been proved that the applicant had been involved in the plan to execute the civilians, or that he had known that they would be executed. 15.     On 21 January 2014 the Supreme Court confirmed the applicant’s acquittal. B.     Defamation proceedings 16.     On 5 January 2009 I.P. instituted a private criminal prosecution against the applicant in the Sisak Municipal Court ( Općinski sud u Sisku – “the Municipal Court”) on charges of defamation, an offence under Article 200 of the Criminal Code, in connection with the statements that the applicant had made in his closing arguments in the criminal proceedings on charges of war crimes on 16 December 2008 (see paragraph 11 above). In the defamation proceedings, the applicant was represented by Z.K., the same lawyer who had represented him in the criminal proceedings on charges of war crimes (see paragraph 7 above). 17.     In his defence, the applicant argued that he had given the impugned statement while reading from a pre-prepared script of his closing statement, and that the president of the trial panel had then summarised his statement for the record. He also explained that he had submitted his written script to the file and that it had formed part of his closing statement. He denied using some colloquial expressions set out in the indictment – saying that I.P. had “instigated” the politically motivated prosecution ( rodonačelnik ) and that he had led a criminal enterprise against him ( ujdurmu ). Moreover, the applicant submitted that he had never referred to a “criminal enterprise” in his closing statement. 18.     However, the applicant accepted that he had stated that I.P. had exerted influence as regards the witnesses and the lodging of a criminal complaint against him. He explained that the oral evidence given by I.T. during the criminal proceedings had made him believe this, as had I.T.’s appearance on the television show Istraga (see paragraph 9 above). Moreover, in his view, some of the witnesses had changed their minds during the proceedings. He had also seen I.P. making contact with witnesses in the court corridor before the hearings, and had seen him showing his (the applicant’s) photographs to witnesses. According to the applicant, I.P. had communicated in particular with one of the victims’ relatives, S.K., who had lodged a criminal complaint against him (the applicant). The media, and particularly the television show Istraga , had not been objective in reporting on the case. 19.     During the defamation proceedings, I.P. explained that he had not attended the hearing on 16 December 2008, but had read what the applicant had said about him in the media and on the Internet. This had disturbed him a great deal, as the comments had attracted widespread media attention, so he had even sought medical help. He also stated that he had had some problems in other countries because of what the applicant had said about him. 20.     I.P. denied exerting any influence on the witnesses in the criminal proceedings against the applicant. He explained that he had been very active in promoting the truth about what had happened during the war, and that when some of the witnesses of war crimes contacted him he advised them to get in touch with the police or the relevant State Attorney’s Office. He had attended several war crimes hearings, including those in the applicant’s case. However, he had never exerted pressure on any witnesses or shown the applicant’s photographs to witnesses. With regard to S.K. in particular, I.P. explained that he had not influenced her in relation to her lodging a criminal complaint, and that he had met her only when the proceedings against the applicant had already started. 21.     I.P. confirmed that as part of his activities related to the war he had assisted in the preparation of several television shows. However, none of the shows on which he had worked had ever mentioned the applicant. He also denied any involvement in the television show Istraga , which had specifically dealt with the applicant’s case. In this connection, I.P. also explained that the television show at issue had been prepared after the criminal proceedings against the applicant had already started, so the show had had no influence as regards the criminal case against the applicant being opened. With regard to his contact with I.T., a witness, I.P. stated that he had met him after the proceedings against the applicant had already started. I.P. explained that he had been contacted by some people from Nova TV who had said that I.T. had contacted their correspondent in Split. I.P. had asked them to advise I.T. to contact the police and the State Attorney’s Office. Later on, when I.T. had come to give his evidence in the Sisak State Attorney’s Office, I.P. had met him in order to show him where that office was located. 22.     The Municipal Court further heard a number of witnesses and obtained copies of the relevant records from the County Court. At a hearing on 22 February 2011 the applicant requested that Judge S.M., who had presided over the trial panel in the first set of criminal proceedings against him, be questioned as a witness as regards the manner in which the record of the hearing had been prepared and whether she had been contacted by I.P. during the proceedings. However, the Municipal Court did not hear oral evidence from Judge S.M. 23.     On 21 March 2012 the Municipal Court found the applicant guilty of defamation and fined him the equivalent of ten daily wages, an amount totalling 1,000 Croatian kunas (HRK – approximately 130 Euros (EUR)). It also specified that failure to pay the fine within four months of the judgment becoming final could result in the fine being replaced with community service. The applicant was also ordered to pay HRK 1,070 (approximately EUR   140) for court fees and HRK 16,337.50 (approximately EUR   2,150) for I.P.’s costs and expenses in respect of his legal representation. 24.     The relevant parts of the judgment read as follows: “The conclusion [as to the applicant’s responsibility for defamation] is based on the witness statements of I.P., J.F., M.P., Ž.G., V.R., I.T., S.K. and P.Š., as well as on the material evidence in the file, namely the County Court’s records from the hearings in the criminal case against [the applicant], in particular the record of 16 December 2008, [the applicant’s] written defence of 16 December 2008, the newspaper and Internet articles concerning the hearing of 16 December 2008, and the [medical records] for I.P. This court accepts the oral evidence given by I.P. as credible and objective because it is consistent with other evidence adduced during the proceedings. I.P.’s statement was corroborated by the statements of the witnesses Ž.G., J.F., S.K. and P.Š. and by other material evidence. His statement is, on the whole, confirmed by the witness I.T. ... This court [also] finds that [despite the fact that there are some discrepancies in the details as to how I.T. and I.P. actually met,] there are no grounds to cast doubt on the credibility of their evidence, since I.P. and I.T. confirmed that they had met on the day when I.T. had come to Sisak to give his statement to the State Attorney. Given that I.T.’s evidence is otherwise consistent with other evidence in the file, this court accepted it as credible and convincing. ... This court accepts the evidence given by the witnesses Ž.G., J.F. and M.P. [journalists who attended the hearing on 16 December 2008], as it finds their evidence convincing and credible. ... The court has no doubt that they reliably and objectively reported in the newspapers and on the Internet on what they had seen, heard and recorded at the hearing ... There is no reason for the court not to accept the evidence given by S.K., who clearly and convincingly explained how [she had met I.P. only after the proceedings against the applicant had already started, and after she had given evidence as a witness in the proceedings] ... In view of the above, the court has no doubt that at the hearing on 16 December 2008 before the Sisak County Court, in the criminal proceedings [on charges of war crimes], the accused made the impugned statement and thus defamed the claimant. ... It appears from an analysis of the witness statements obtained during the proceedings, and the Sisak County Court’s trial record of 16 December 2008, that the hearing at issue lasted for a long time, that all other participants in the proceedings spoke before the accused did, and that the accused gave an oral statement, essentially reading from a prepared script. It also appears that on that occasion there were many verbal disputes between the accused and the president of the trial panel, and that after the accused had given his statement, the president of the panel summarised it for the record. The record of 16 December 2008 shows that the accused stated, amongst other things, ‘[this] is a politically motivated process instigated [ rodonačelnik ] by I.P., who contacted prosecution witnesses directly and exerted pressure on them, instructing them on how to testify in these criminal proceedings, and also instigated a virulent media campaign aimed at portraying me as a criminal’. As regards this text, the accused only contests that he used the word ‘ rodonačelnik ’ ... However, ... this court has no doubt that [the president of the trial panel] correctly summarised the accused’s statement for the record, [something] which has been confirmed by [the journalist present at the hearing]. ... ... As to the use of the word ‘ ujdurma ’, the court points out that the witnesses J.F. and M.P., journalists, categorically stated that the accused had used that word to refer to the claimant ... Moreover, the witness Ž.G., [another journalist], stated that on that occasion the accused had said that Croatian war veterans were a criminal organisation. [Ž.G.] explained how he had reported in his newspapers that the accused ‘[had] mentioned the name of I.P., ... stating that he had organised [the case against him]’. This court therefore does not accept that the accused did not utter the impugned words in reference to the claimant, particularly since on page eight of his written closing statement he wrote, amongst other things, ‘honourable court, this is the real state of affairs, truth and aim of this politically motivated process directed by the organiser of this criminal enterprise, Mr I.P., together with his criminal group’. However, the accused does not contest that in his closing statement he stated that I.P. had contacted prosecution witnesses directly and exerted pressure [on them], instructing them on how to testify, and had also instigated a virulent media campaign aimed at portraying [him] as a criminal, and had led a criminal enterprise against him. ... It is true that the impugned defamatory statements were made in the context of the accused’s closing arguments at the trial. However, it is obvious that these statements were not aimed at [supporting] the accused’s defence, but rather at debasing the claimant, I.P., in the eyes of the public [by] presenting him as the leader and organiser of a criminal enterprise against [the applicant] and as somebody who had exerted influence on the witnesses in the proceedings to get them to change their minds. All of this aimed to damage [I.P.’s] honour and reputation. When making his closing arguments, the accused was supposed to analyse the evidence examined during the proceedings and the arguments of the prosecution and the witness statements, particularly those in his favour, with the aim of establishing his innocence in respect of the disputed crimes. [However], in doing this, he was not supposed to cause damage to others, namely I.P., by knowingly making incorrect, unverified and unsubstantiated claims. The overall context of [the accused’s] closing arguments, including the impugned statements], shows that he made those statements only to cause damage to the claimant’s honour and reputation, and not to defend himself in lawfully conducted [criminal] proceedings ... On the basis of the evidence examined during the proceedings, this court finds that the accused’s statements had no objective basis ... [The circumstances in which I.T. participated in the television show Istraga ] can in no way justify the [applicant’s] statement as to [I.P.’s] alleged conduct towards him. This court also finds it illogical that [I.P.], who, according to the accused, influenced the witnesses to [get them to] provide false statements, would make contact with those witnesses in the court corridor in front of the accused in order to instruct them on how to give false statements. If he really exerted such an influence on the witnesses, then it would be logical that he would do this somewhere out of the sight of the accused, and that he would avoid communicating with them in front of the courtroom. [I.P.’s] denial that he exerted any influence on the witnesses was confirmed by the witnesses themselves when they were heard during these proceedings ... [T]he accused’s defence also shows that he was aware that the criminal complaint against him had been lodged by S.K., so this court finds it illogical that he does not hold her responsible [for his prosecution], but I.P. This also supports the view that the accused’s aim was to defame the claimant, and not to defend his rights and interests in the criminal proceedings. ... As to the accused’s statement that his misgivings [concerning I.P.’s conduct] became more severe when he saw [I.P.] in the court corridor showing photographs of him to witnesses, this court points out that this was denied by [I.P.] and the witness I.T. It is not logical that [I.P.], who attended only a few hearings [in the proceedings against the applicant], would show photographs [of him] to the witnesses, since those witnesses could easily have seen him in the court corridor ... and in the courtroom. It appears from the records of the County Court’s proceedings and the witness statements of D.R. and T.Š. that the accused had three defence lawyers in the proceedings. Thus, before making his closing statement, and despite the fact that he was in pre-trial detention, he had an opportunity to verify through [his lawyers] whether what he was stating against [I.P.] was correct. However, the accused did not do that. Instead, he knowingly made the incorrect defamatory allegations against [I.P.] with the aim of damaging his honour and reputation. If the accused had wanted to act in good faith when giving his closing statement, he could have made [the statement] by analysing the course of the proceedings without making the impugned defamatory claims against I.P. The above makes it clear that part of the accused’s closing statement, instead of aiming to demonstrate his innocence, represented a gratuitous and, for his defence, ineffective expression of unsubstantiated and defamatory statements concerning [I.P.], [a person] whom, for reasons known only to him, the accused sees as responsible for the criminal proceedings against him ... [H]e attributes to [I.P.] very negative and decisive importance for everything that has happened to him in the proceedings. It is clear that presenting someone in this light seriously damages that person’s honour and reputation. Indeed, there is nothing positive or good in being [portrayed] as a leader of a criminal enterprise or someone who influences witnesses [to get them] to provide false evidence or submit false criminal complaints and the like. It therefore cannot be accepted that these statements were made in the heat of the moment during closing arguments. In the court’s view, these statements were solely aimed at damaging [I.P.’s] honour and reputation by attributing to him unlimited and unlawful powers to influence criminal proceedings against the accused. This is unacceptable, as [the applicant] thus undermined the entire legal system of the Republic of Croatia, which has jurisdiction over the prosecution of criminal offences and the lawful conduct of criminal proceedings against the perpetrators of those offences. In view of the above, this court has established beyond any doubt that the impugned statements concerning the claimant [I.P.] were false and capable of damaging his honour and reputation. He is a retired coronel in the Croatian army who, after the statements were reported in the media, felt so seriously affected that he even sought medical help. Moreover, those statements have attracted significant public attention.” 25.     The applicant challenged that judgment before the County Court, which acted as a court of appeal in the matter. He argued that the first-instance court had failed to appreciate all the circumstances of the case, especially those that had legitimately led him to conclude that I.P. had led a campaign against him, in particular by influencing the witnesses. The applicant further contended that the first-instance court had not taken into account that his statements had been made in the context of his closing arguments in the criminal proceedings against him on charges of war crimes, and that some of the statements had been distorted in the course of the media reporting the events and Judge S.M. drafting the trial record. 26.     On 31 January 2013 an appeal hearing was held before the County Court, sitting as a panel of three judges, including Judge S.M. The applicant’s lawyer Z.K. was present at the hearing. When explicitly asked whether he had any objection to the composition of the appeal panel, the lawyer Z.K. answered that he had no objection. 27.     Following the hearing, the County Court dismissed the applicant’s appeal and upheld his criminal conviction, endorsing the reasoning of the Municipal Court. It also remitted the case to the Municipal Court for a reassessment of the costs and expenses of the proceedings, on the grounds that the first-instance judgment had lacked the relevant reasoning in this regard. 28.     On 13 May 2013 the Municipal Court found that the applicant was not obliged to pay for the court fees, owing to his limited financial resources. However, it obliged him to pay HRK 16,337.50 (approximately EUR 2,150) for I.P.’s legal representation. That decision became final on 12   July 2013. 29.     The applicant was allowed to pay his fine in ten instalments of HRK   100 (approximately EUR 13). On 14 September 2015 the applicant informed the Municipal Court that he had paid all ten instalments. 30.     In the meantime, the applicant had challenged his conviction for defamation by lodging a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ). On 15 May 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded, endorsing the reasoning of the lower courts. II.     RELEVANT DOMESTIC LAW 31.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/1990, with further amendments) read as follows: Article 16 “(1)     Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health. (2)     Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.” Article 35 “Everyone has the right to respect for and legal protection of his or her private ... life ...” Article 38 “(1)     Freedom of thought and expression shall be guaranteed. (2)     Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and public expression, and free establishment of all media institutions.” 32.     The relevant part of the Criminal Code ( Kazneni zakon , Official Gazette no. 110/1997, with further amendments) provides: Defamation Article 200 “(1)     Whoever asserts or disseminates a falsehood about another person which can damage [that person’s] honour or reputation shall be punished by a fine [of ten] to one hundred and fifty daily wages. (2)     Whoever, through the press, radio, television, in front of a number of persons, at a public assembly, or in another way in which the defamation becomes accessible to a large number of persons, asserts or disseminates a falsehood about another person which can damage [that person’s] honour or reputation, shall be punished by a fine. (3)     If the defendant proves the truth of his or her allegation or the existence of reasonable grounds to believe in the veracity of what he or she has expressed or disseminated, he or she shall not be punished for defamation, but may be punished for insult or for reproaching someone for a criminal offence.” Reasons for finding that offences against honour and reputation are not unlawful Article 203 “There shall be no criminal offence in the event of ... the defamatory content referred to in paragraphs 1 and 2 of Article 200 being expressed and made accessible to other persons in ... the defence of a right or in the protection of justifiable interests if, from the manner of expression and other circumstances, it clearly follows that such conduct was not aimed at damaging the honour or reputation of another.” 33.     Article 302 of the Criminal Code proscribed false reporting of a criminal offence, making it punishable by a fine or a maximum of three years’ imprisonment. Article 304 of the Criminal Code proscribed witness tampering, making it an offence against the proper functioning of the judiciary punishable by a prison sentence of between six months and five years. 34.     The relevant provisions of the Code of Criminal Procedure ( Zakon o   kaznenom postupku , Official Gazette no. 110/1997, with further amendments) concerning the disqualification of judges from proceedings which were applicable at the time are set out in the case of Zahirović v.   Croatia , no. 58590/11, § 25, 25 April 2013. Under Article 4 of the Code of Criminal Procedure as applicable at the time, the accused was allowed to remain silent and not to answer any questions. III.     RELEVANT INTERNATIONAL MATERIAL 35.     On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007) entitled “Towards decriminalisation of defamation”. Its relevant passages read as follows: “6.     Anti-defamation laws pursue the legitimate aim of protecting the reputation and rights of others. The Assembly nonetheless urges member states to apply these laws with the utmost restraint since they can seriously infringe freedom of expression. For this reason, the Assembly insists that there be procedural safeguards enabling anyone charged with defamation to substantiate their statements in order to absolve themselves of possible criminal responsibility. 7.       In addition, statements or allegations which are made in the public interest, even if they prove to be inaccurate, should not be punishable provided that they were made without knowledge of their inaccuracy, without intention to cause harm, and their truthfulness was checked with proper diligence.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 36.     The applicant complained that his criminal conviction for defamation of I.P. had been unjustified and unfair. He relied on 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.” A.     Admissibility 37.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ arguments (a)     The applicant 38.     The applicant argued that he had had reasonable grounds to believe that someone had been instructing witnesses on how to testify in the criminal proceedings against him on charges of war crimes. In his view, some of the witnesses had changed their minds, and after his lawyer had pointed out the inconsistencies in their evidence he had received a threatening letter. In this context, the applicant also pointed out that a police record from an identification parade had not faithfully represented what the witnesses had observed and stated. During the proceedings, the witness I.T., who had participated in the television show Istraga concerning the killings in Glina Prison, had clearly stated that he had been instructed to get in touch with I.P. At that time, the television show Istraga had been very popular, and I.P. had assisted in preparing the show by producing scripts for the reconstruction of various events which had taken place during the war. I.P. was a well-known person and activist as regards matters concerning crimes committed during the war. He had often attended the hearings in the applicant’s case, and had also testified as a witness in some other war-crime cases. 39.     According to the applicant, these were the circumstances that he had wanted to bring to the attention of the trial court in his closing statement. He pointed out that in the criminal proceedings on charges of war crimes he had been in pre-trial detention and had faced serious charges and possibly a heavy penalty. Thus, he had had a legitimate reason to defend himself. His intention had not been to defame I.P., but he had had justified concerns over I.P.’s involvement in his case. Moreover, although throughout the proceedings the media had been very biased against him, he had not known that his words would be reported by the media. 40.     The applicant further submitted that all the circumstances of the alleged defamation had not been properly established in the defamation proceedings. In his view, the domestic courts had failed to strike a fair balance between his legitimate interest in defending himself and I.P.’s right to protect his reputation. They had also failed to appreciate the fact that his freedom of speech as an accused in criminal proceedings was important for the exercise of his right to a fair trial. In this connection, the applicant stressed that it was the right of every accused to defend himself as he saw fit. Thus, in his view, the court in the defamation proceedings had had no right to examine and decide whether the statements he had made in his defence were true. The applicant considered that an excessive burden would be placed on the accused in criminal proceedings if they ran the risk of being prosecuted for defamation. In his view, the right of an accused to defend himself freely outweighed the right of any other individual to protect his reputation. Lastly, the applicant argued that when assessing the severity of the sanction imposed on him, the large amount of I.P.’s legal fees which he had been obliged to pay had to be taken into account. (b)     The Government 41.     The Government did not contest that the applicant’s criminal conviction for defamation had amounted to an interference with his freedom of expression. However, in the Government’ view, that interference had been lawful and justified. In particular, the interference had been based on Article 200 of the Criminal Code, which was sufficiently accessible, foreseeable and certain. The interference had also pursued the legitimate aim of the protection of the rights of others, namely the protection of I.P.’s reputation. 42.     As to the proportionality of the interference, the Government stressed that there was no doubt that the applicant had made the impugned defamatory statements. Those statements had been made in a courtroom in front of a number of persons, including journalists, so the applicant must have been aware that those statements would be made available to the public. His allegations had had a severe impact on I.P., who had even sought medical help for the distress he had suffered. In this connection, the Government submitted that it was important to bear I.P.’s personal circumstances in mind. He was a retired military officer and a disabled war veteran who had invested himself with regard to discovering crimes committed during the war. Thus, the applicant’s allegations had had a significant impact on him. As those allegations were essentially statements of fact, there had been nothing wrong in asking the applicant to demonstrate their factual basis. However, in the Government’s view, he had failed to show that he had had any objective grounds or justification for his statements. Moreover, the Government did not consider that such an unjustified attack on I.P. involved any legitimate public interest. 43.     The Government further argued that the domestic courts had diligently conducted the proceedings and had properly balanced all the relevant interests at stake, including those related to the applicant’s right to defend himself in the criminal proceedings and I.P.’s right to protection of his reputation. The domestic courts had also paid attention to the overall context in which the applicant’s statements had been made and had concluded that they had aimed to defame I.P. rather than provide legitimate arguments for the applicant’s defence. In the Government’s view, the manner in which the applicant had made allegations against I.P. could in no way be considered part of his defence. In any event, the fact that he had been defending himself in criminal proceedings could not be interpreted as giving him an absolute right to make defamatory statements against persons completely unrelated to the proceedings in question. Lastly, the Government considered that the sanction imposed on the applicant had been moderate and had not disturbed the balance between his defence rights in the criminal proceedings and I.P.’s right to protection of his reputation. 2.     The Court’s assessment (a)     Existence of an interference 44.     The parties agree that the applicant’s criminal conviction for defamation – in respect of the statements he had made concerning I.P. in the closing arguments of his trial for war crimes – constituted an interference with his freedom of expression under Article 10 §   1 of the Convention. According to the Court’s case-law, an accused’s statements in criminal proceedings may concern his freedom of expression under Article 10 (see, albeit in a different context, Zdravko Stanev v. Bulgaria (no. 2) , no.   18312/08, § 31, 12 July 2016, concerning defamatory statements made by an accused against a first-instance judge in the context of subsequent appeal proceedings). However, an issue in this context may also arise from the perspective of an accused’s right to defend himself effectively in proceedings, under Article 6 of the Convention (see paragraphs 54-56 below). Thus, the Court’s approach to the examination of a particular case will depend on the circumstances of the case and the nature of the complaint made by the applicant. In the present case, having regard to the fact that the applicant specifically complained about his criminal conviction for defamation of I.P., and that the domestic courts considered the case from the perspective of an attack on I.P.’s honour and reputation, the Court will address the applicant’s conviction for defamation as an interference with his freedom of expression under Article 10 of the Convention, bearing in mind the implications of his right to defend himself effectively in criminal proceedings. 45.     Such an interference, in order to be permissible under Article 10 §   2, must be “prescribed by law”, pursue one or more legitimate aims, and be “necessary in a democratic society” for the pursuit of such an aim or aims. (b)     Whether the interference was prescribed by law 46.     It is not disputed between the parties that the interference with the applicant’s right to freedom of expression had a legal basis in the domestic law – Article 200 of the Criminal Code (see paragraph 32 above) – and that the relevant law satisfied the “quality of law” requirements under the Convention (see, for instance, Karácsony and Others v. Hungary [GC], nos.   42461/13 and 44357/13, §§ 123-25, 17 May 2016). The Court accepts that the interference was prescribed by law. (c)     Whether the interference pursued a legitimate aim 47.     In agreement with the position of the domestic courts (see paragraph   24 above), the Government argued that the interference in question had pursued the legitimate aim of “the protection of the reputation or rights of others”. The Court finds no reason to reach a different conclusion on this issue. It further notes that the domestic courts also made reference to the fact that the nature of the applicant’s allegations against I.P. undermined the perception of the proper functioning of the criminal-justice system in Croatia (see paragraph 24 above). Thus, in so far as relevant for its assessment in the present case, the Court will also have regard to the principles related to “maintaining the authority and impartiality of the judiciary”, one of the legitimate aims under Article 10 § 2 of the Convention. (d)     Necessary in a democratic society (i)     General principles 48.     The Court refers to the general principles for assessing the necessity of an interference with the exercise of freedom of expression as set out in Morice v. France ([GC], no. 29369/10, § 124, ECHR 2015); Bédat v.   Switzerland ([GC], no. 56925/08, § 48, 29 March 2016); and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no.   17224/11, § 75, 27 June 2017). 49.     Furthermore, it may be reiterated that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see, for instance, Denisov v.   Ukraine [GC], no. 76639/11, § 97, 25 September 2018). The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers also the psychological well-being and dignity of a person. In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Medžlis Islamske Zajednice Brčko and Others , cited above, § 76; and Beizaras and Levickas v. Lithuania , no. 41288/15, § 117, 14 January 2020). On the other hand, Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions, such as, for example, the commission of a criminal offence (see Axel Springer , § 83; Medžlis Islamske Zajednice Brčko and Others , § 76; and Denisov , § 98, all cited above). 50.     In instances where, in accordance with the criteria set out above, the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting the two values guaranteed by the Convention, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Medžlis Islamske Zajednice Brčko and Others , cited above, § 77). The general principles applicable to the balancing of these rights were first set out in Von Hannover v. Germany (no.   2) ([GC], nos. 40660/08 and 60641/08, §§ 104-07, ECHR 2012) and Axel Springer AG (cited above, §§ 85-88); then restated in more detail in Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, §§ 90-93, ECHR 2015); and more recently summarised in Medžlis Islamske Zajednice Brčko and Others (cited above, § 77). 51.     When it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the offending statement or under Article 10 by the author of the statement in question. Accordingly, the margin of appreciation should in theory be the same in both cases (see Axel Springer AG , cited above, § 87, and Bédat , cited above, § 52, with further references). 52.     Furthermore, the Court has consistently held that in matters of public interest there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression (see, among many other authorities, Sürek v.   Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending (see Morice , cited above, §   125). The potential seriousness of certain remarks (see Thoma v.   Luxembourg , no. 38432/97, § 57, ECHR 2001-III) does not obviate the right to a high level of protection, given the existence of a matter of public interest (see Bédat , cited above, § 49). 53.     However, in this context regard must also be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded. The phrase “authority of the judiciary” in Article   10 § 2 of the Convention includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the resolution of legal disputes and for the determination of a person’s guilt or innocence o