CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 mai 2022

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margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s8773B649 { width:25.2pt; display:inline-block } .s827E7349 { width:140.75pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   FIRST SECTION CASE OF MESIĆ v. CROATIA (Application no. 19362/18)     JUDGMENT   Art 10 • Freedom of expression • Justified civil defamation award, after former State President’s statement that an advocate needed psychiatric treatment for implicating him in a criminal complaint • Balancing exercise between Arts 8 and 10 rights carried out by Court given failure of domestic courts to do so • Words spoken by high-ranking State officials carrying more weight and capable of greater harm to reputation of others • Statement widely distributed, when advocate was not in a position to reply, and capable of having “chilling” effect on the exercise of his professional duties Art 6 § 1 (civil) • Reasonable time • Excessive length of appeal proceedings   STRASBOURG 5 May 2022   FINAL   05/09/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mesić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Péter Paczolay, President,   Ksenija Turković,   Krzysztof Wojtyczek,   Alena Poláčková,   Gilberto Felici,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   19362/18) 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 Stjepan Mesić (“the applicant”), on 19 April 2018; the decisions to give notice to the Croatian Government (“the Government”) of the complaints concerning the freedom of expression and the excessive length of proceedings and to declare inadmissible the remainder of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by Mr Ivan Jurašinović, the National Bar Council ( Conseil National de Barreaux ) and the Paris Bar Association ( Ordre des avocats du barreau de Paris ) who were granted leave to intervene by the Vice-President of the Section; Having deliberated in private on 9 November 2021 and 5 April 2022, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The case concerns civil proceedings for defamation in which the applicant – a former President of Croatia – was ordered to pay 50,000   Croatian kunas (HRK; approximately 6,660 euros (EUR) at the material time) to a French advocate of Croatian origin, for tarnishing his reputation. THE FACTS 2.     The applicant was born in 1934 and lives in Pušća. He was represented by Mr Č. Prodanović, an advocate practising in Zagreb. 3.     The Government were represented by their Agent, Ms Š. Stažnik. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     The applicant was the President of the Republic of Croatia in the period between 19 February 2000 and 18 February 2010. Events giving rise to the dispute 6.     On 15 September 2006 Mr Ivan Jurašinović, an advocate of Croatian origin who was at the time practicing in Angers (France), as the legal representative of a certain Mr M.T., lodged a criminal complaint with the investigating court in Nanterre against a certain Mr M.N. and ten other Croatian nationals, including the applicant, in respect of two counts of the attempted murder of his client and one count of attempted extortion by a criminal organisation. Among the accused was also a certain Mr H.P., who was at the time in the Croatian media portrayed as a well-known mafia boss, and was thus perceived as such by the general public. According to the Croatian media, M.T. was a former member of Croatian secret services and arms dealer. 7 .     In his third-party comments before the Court (see paragraphs 64-73 below), Mr   Jurašinović stated that in the criminal complaint in question his client had maintained that H.P. had financed the applicant’s election campaign in 2000 and had mentioned the name of the agent of the French security service who had provided him with information to that effect. Mr   Jurašinović in his comments before the Court reproduced the relevant part of the said complaint concerning the applicant, who had been accused as being an accomplice in the attempted murder and in the extortion of his client. The relevant part of the criminal complaint read as follows: “There is therefore sufficient evidence to suspect H.P. and V.Z. of being the sponsors of the assassination attempt against my client, M.N. being the executioner. In so far as the meetings of this mafia organisation are regularly organised [at the address] Pantovčak 28, the headquarters of the company O. – meetings in which Stipe Mesić participates – it follows that Stipe Mesić is the head of this mafia organisation. My client has become convinced, and intends to demonstrate this in the course of the upcoming investigation, that Stipe Mesić is leading this mafia organisation ...” 8 .     On 10 November 2006, the daily newspapers Novi List and Glas Istre each published an article on their websites in which they reported that Mr   Jurašinović had lodged the above-mentioned criminal complaint in relation to attempts to murder his client, M.T. in respect of which the applicant had been mentioned as a “sort of a political patron of the person who ordered the murder, who according to the complaint is [H.P].” The article posted on the Novi List website was entitled “The President [named] in the [criminal] complaint, together with [H.P.] and [M.N.]” and the article posted on the Glas Istre website was entitled “Mesić reported for attempted murder”. There is no evidence to suggest that the exact content of the criminal complaint, as stated above (see paragraph 7), was known to the media. 9 .     In both articles it was stated, inter alia , that journalists had contacted Mr   Jurašinović by phone and that he had confirmed that the criminal complaint had indeed been lodged, but that he did “not want to go into details, explaining that he is anyway not allowed to do so under French law”. Both articles also reported that Mr Jurašinović had specified that he had lodged the criminal complaint in the name of his client. 10 .     In his comments before the Court (see paragraphs 64-73 below), Mr   Jurašinović gave further context as to why the media had paid such attention to the criminal complaint that he had lodged on behalf of his client. In his view the media scrutiny had been due to the fact that in early November 2006 another political figure, a certain Mr I.P., had accused the applicant in the media of being responsible for an attempt on his life, after an unknown individual had thrown two hand grenades at his house. 11 .     On the same day the above articles (see paragraph 8 above) were published; during a televised press conference organised in the course of a visit paid by the applicant to Našice, journalists asked him to comment on the content of those articles. The applicant stated that he had met H.P. only twice in his life “by chance, in passing” and that he did “not have any connection with him at the time”. Then he added: “Why this advocate who lodged the criminal complaint says that I am [H.P.’s] political patron is probably known only to him, but I would suggest to him that he visit Vrapče [a psychiatric hospital] when he comes to Zagreb because people [such as him] can receive effective treatment there. It is a great opportunity; it won’t cost him a lot and our physicians are known for their efficiency.” 12 .     This statement was reported on the official website of the President of Croatia, on the websites of the weekly news magazine Nacional , Croatian Radiotelevision   ( Hrvatska radiotelevizija – Croatia’s public broadcasting company) and the Croatian American Association, as well as by the Croatian news agency HINA, the web portal Index.hr, the daily newspaper Večernji list and Nova TV. Civil proceedings for defamation 13 .     Given that under Croatian law the national President has immunity from criminal prosecution but not from civil liability, on 22 January 2007 Mr   Jurašinović brought a civil action for defamation against the applicant in the Zagreb Municipal Court ( Općinski sud u Zagrebu ). He sought HRK   70,000 (approximately EUR 17,570 at the material time) in compensation for non-pecuniary damage. 14 .     Mr   Jurašinović, as the plaintiff, argued that the applicant had used his position as President of Croatia and the related media attention to harm his honour and reputation, and his professional and moral credibility, in the most egregious way and to publicly disqualify him from holding the position of advocate by implying that he was a mentally disturbed person. He submitted that the offensive statement at issue (see paragraph 11 above) had caused him intense emotional distress in the form of anxiety, agitation, insomnia, indignation, heavy psychological pressure and constant tension. He also stated that, after the publication of the impugned statement, he had experienced difficulties in his work and in establishing social and professional contacts, having been constantly forced to justify his actions and answer uncomfortable questions about the applicant’s statement. He also asserted that he had experienced a fall-off in the number of new clients. 15.     In response, the applicant denied having harmed the plaintiff’s honour and reputation and submitted that his statement had not been offensive and that it had not been his intention to offend the plaintiff. Rather, his statement had constituted an attempt at irony in respect of the unfounded severe accusations that had been made against him and had to be understood in the context of his reply to the journalist’s question. The impugned part of his statement had been a figure of speech ( figurativna ) and thus a value judgment rather than an unjustified personal attack against the plaintiff. 16.     On 23 October 2008, the Zagreb Municipal Civil Court ruled in favour of the plaintiff and ordered the applicant to pay him HRK 70,000 in compensation for non-pecuniary damage; it also ordered the applicant to pay to the plaintiff the costs of the proceedings. However, following an appeal by the applicant, that judgment was on 31 May 2011 quashed by the Zagreb County Court ( Županijski sud u Zagrebu ), and the case was remitted to the first-instance court. 17 .     In the fresh proceedings, by a judgment of 23 December 2011 the Zagreb Municipal Court again ruled in favour of the plaintiff and ordered the applicant to pay him HRK 70,000 (approximately EUR 9,290 at the material time), together with the accrued statutory default interest, running from the date of the judgment, in compensation for non-pecuniary damage; the court also ordered the applicant to pay the plaintiff HRK 9,300 (approximately EUR 1,235 at the material time) for the costs of the proceedings. The relevant part of that judgment reads as follows: “In his statement – uncontested in terms of its content and the fact that it was made public on 10 November 2006 – the defendant suggested to the plaintiff that he visit Vrapče in order to get effective help. [The court finds it convincing] that the plaintiff understood this as implying that he should be treated for mental illnesses or disorders. In particular, it is well known that Vrapče is the location of the best-known Croatian hospital for mental illnesses ... ... this court ... has established that the defendant did not directly call the plaintiff mentally ill by means of [making] the said statement, but [rather] told him to get treatment in Vrapče, where physicians [would] provide effective help. This [was offensive] to the plaintiff, who understood it as a suggestion that he needed to be treated for a mental illness or disorder ... ... the defendant breached the plaintiff’s right of personality, namely his honour and reputation, by implying that he should be treated for a mental illness or disorder. In this court’s view it is unacceptable for anyone to state publicly in any manner that someone should be treated for such illnesses or disorders, since that is exclusively a personal matter for every citizen and not information that anyone would be allowed to disclose, let alone suggest treatment for such illness. The defendant’s objection that this statement is a value judgment on his part ... is ill ‑ founded. To think something about someone and to say it publicly are two very different things. That is even more the case given that words spoken publicly, especially by the State President, have consequences. In the present case the statement breached the plaintiff’s right of personality – that is to say it [harmed] his honour and reputation – especially because anyone’s need, including that of the plaintiff, to be treated for mental illness, is that person’s personal matter and no one is entitled to comment on it against the will of the person concerned, let alone suggest treatment, if they are not medical professionals. It is correct that Article 38 §§ 1 and 2 of the Croatian Constitution guarantees freedom of thought and expression, but that right may be limited if it causes harm to other persons, as set out in section 8 of the Obligations Act, and by [need to] the protect the rights of personality, as provided in section 19(1) and (2) of the same Act, which results in the application of [its] section 1045(1) .... The defendant’s argument about the ironic or symbolic nature of his statement is neither decisive nor acceptable because the manner of expressing oneself in public must in itself be such as to not cause damage to anyone, in accordance with section 8 of the Obligations Act. ... The arguments that the defendant’s statement was perceived by the plaintiff, his clients and parents and fellow advocates as a threat were not accepted. ... [It] is true that Croatia used to be under the Communist rule, and that it is common knowledge that over the entire Communist world, psychiatric hospitals were also used for the internment of political opponents. However, Croatia is now a free democratic country, with a prescribed method of placement in psychiatric hospitals ... and ... it is [therefore] unfounded to conclude that the defendant could by his statement [genuinely have] threatened the plaintiff with placement in such an institution. Moreover, in the part of the statement of claim [concerning the factual basis of his civil action], by which the court is bound, the plaintiff nowhere mentions threats or seeks damages [on that account], but [seeks damages] only for the breach of his right of personality – i.e. [for the injury to] his honour and reputation, and not for the possible fear that only a threat can cause. Consequently, the plaintiff’s testimony was not accepted, as [it was] unconvincing in so far as he referred to the fear for his safety [expressed] by his parents, clients and fellow advocates.” 18 .     On 30 January 2012 the applicant lodged an appeal against the first ‑ instance judgment. 19 .     By a judgment of 26 October 2016, the Zagreb County Court upheld the first-instance judgment but reduced the amount of compensation payable to the plaintiff to HRK 50,000 (approximately EUR 6,660 at the material time), and the costs to HRK 6,057 (approximately EUR 806 at the material time). The applicant was ordered to pay those amounts within fifteen days. The relevant part of that judgment reads as follows: “... on the basis of the evidence taken, the first-instance court correctly established that the defendant ... harmed the plaintiff’s honour and reputation by publicly ... implying that the plaintiff should be treated in Vrapče ..., the uncontested location of an institution treating mental or psychiatric illnesses and disorders ... The content of this statement is not allowed in the light of the [relevant] statutory provisions because a person’s health is the personal matter of that person and not public information. By holding that the contested statement was injurious for the plaintiff’s honour and reputation, the first-instance court correctly accepted the plaintiff’s testimony as logical and convincing and found that the statement had harmed his honour and reputation.” 20 .     The County Court’s judgment was served on the applicant’s representative on 25 November 2016. 21 .     The applicant then, on 23 December 2016, lodged a constitutional complaint against the civil courts’ judgments alleging a breach of his freedom of expression. He relied on Article 38 §§ 1 and 2 of the Croatian Constitution (see paragraph 24 below) and Article 10 of the Convention. 22 .     By a decision of 27 September 2017, the Constitutional Court Croatia ( Ustavni sud Republike Hrvatske ) declared the applicant’s constitutional complaint inadmissible, finding that the case did not raise a constitutional issue. That decision was served on the applicant’s representative on   20   October 2017. 23 .     In the subsequent enforcement proceedings, on 23 July 2018 the Financial Agency collected HRK 129,552.74 (approximately EUR 17,515 at the material time) from the applicant’s bank account and transferred it to that of Mr Jurašinović. That sum consisted of the principal amount that the applicant had been ordered to pay by the Zagreb Municipal Court’s judgment of 23 December 2011 (as amended by the Zagreb County Court’s judgment of 26 October 2016 – see paragraphs 17 and 19 above) and of the accrued statutory default interest. RELEVANT LEGAL FRAMEWORK The Constitution 24 .     The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/1990 with subsequent amendments) provides as follows: Article 16 “(1)     Rights and freedoms may be only restricted by law in order to protect the rights and freedoms of others, the legal order, public morals or health.   (2)     Any restriction of rights and freedoms should be proportional to the nature of the necessity for such restriction in each individual case. ...” 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 [the freedom] to speak publicly, and the free establishment of all media institutions. (3)     Censorship shall be forbidden. Journalists shall have a right to freedom of reporting and access to information. (4)     ... (5)     The right to [demand a] correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or by statute have been breached by information in the public domain.” Obligations Act 25 .     The Obligations Act ( Zakon o obveznim odnosima , Official Gazette, no. 35/05 with subsequent amendments), which has been in force since 1   January 2006, is the legislation governing contracts and torts. According to that Act, courts are entitled to award compensation for non-pecuniary damage caused, inter alia , by injury to one’s reputation and honour. The relevant provisions of the Obligations Act read as follows: Prohibition to Cause Damage Section   8 “Everyone shall refrain from taking any action which may cause damage to another [person].” Rights of personality Section 19 “(1) All natural persons or legal entities are entitled to the protection of their rights of personality ( prava osobnosti ) under the conditions provided by law. (2) Rights of personality within the meaning of this Act are the right to life, physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc. (3) ...” Grounds for liability Section 1045(1) “Anyone who causes damage to another shall compensate it, unless he or she proves that the damage occurred through no fault of his or her own.” Damage Section 1046 “Damage is the diminution of one’s property (actual damage), prevention of its increase (lost profits), or a breach of a right of personality (non-pecuniary damage).” ... V.     REDRESS FOR NON-PECUNIARY DAMAGE Publication of a judgment or correction Section 1099 “In the event of a breach of a right of personality the victim may seek, at the expense of the wrongdoer, publication of the judgment or of a correction, retraction of the statement that caused the breach, or any other form of redress capable of attaining the purpose [otherwise] achieved by an award of damages.” Non-pecuniary damages Section 1100 “(1)     In the event of a breach of a right of personality, the court shall award non ‑ pecuniary damages if it finds that the severity of the breach and the circumstances of the case justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage. (2)     When deciding on the amount of non-pecuniary damages, the court shall take into account the intensity and duration of the physical pain, mental anguish and fear caused by the breach, the purpose of those damages, and [the requirement that] they should not favour aspirations that are incompatible with their nature and social purpose.” OTHER LEGISLATION 26 .     The relevant domestic law and practice concerning length ‑ of ‑ proceedings remedies in Croatia is set out in Mirjana Marić v.   Croatia (no.   9849/15, §§ 29-41, 30 July 2020). Specifically, the relevant provisions of the 2005 Courts Act are set out in detail in Vrtar v. Croatia (no.   39380/13, §   51-56 and 61-64, 7 January 2016). THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 27.     The applicant complained that the Zagreb Municipal Court’s judgment of 23 December 2011 (as amended by the Zagreb County Court judgment of 26 October 2016) ordering him to pay damages for the injury caused to Mr Jurašinović’s reputation (see paragraphs 17 and 19 above) had constituted a violation of his freedom of expression. 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.” Admissibility The parties’ arguments (a)    The Government 28.     The Government argued that Article 10 was inapplicable to the present case and that this complaint was, in any event, of a fourth-instance nature. 29 .     The Government averred that by making the impugned statement the applicant had not intended to impart ideas or incite a debate on an issue of public interest. Rather, his only intent had been to publicly insult Mr   Jurašinović. Consequently, Article 10 was inapplicable in the present case (the Government referred to Rujak v. Croatia , no. 57942/10, 2 October 2012). 30 .     In the alternative, the Government submitted that in his application the applicant had challenged the factual findings of the domestic courts by claiming that his statement had not been an insult or made with the intention of causing offence, that it had constituted a value judgement, that it had been taken out of context and that nobody could have taken it literally. However, since it was not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, the applicant’s complaint was of a fourth ‑ instance nature. (b)    The applicant 31.     The applicant replied that his statement had not been given without any context (which could have led to the conclusion that it had constituted a gratuitous personal attack on Mr Jurašinović). Rather, it had been made in reply to a question posed by journalists regarding Mr Jurašinović’s manifestly unfounded accusation, which had been made against him as the president of a sovereign country before the authorities of another State. By accusing the applicant of being a political patron of criminals and linking him to an incident of attempted murder, Mr   Jurašinović had knowingly entered the public sphere and could have expected that such accusations would provoke the applicant into making a public response. By making the statement in question the applicant had sought to protect public confidence both in himself as a person and in the institution of President. His statement had thus concerned a matter of public interest. 32.     The applicant furthermore maintained that his arguments were not of a fourth-instance nature. Before the Court he had argued that there had been an unjustified interference with his freedom of expression, as the domestic courts had not taken into account all the relevant circumstances and had failed to find a fair balance between the two conflicting rights at stake. He had thus not asked the Court to reassess evidence and establish the facts anew but to examine whether his freedom of expression guaranteed by the Convention had been violated. The Court’s assessment 33 .     The Court reiterates that an offensive statement may fall outside the protection of freedom of expression in very rare and exceptional circumstances where it amounts to wanton denigration and its sole intent is to insult. For example, in the Rujak case, where the applicant’s statement mostly concerned vulgar and offensive language, the Court, having formed its judgment on the basis of the context of those statements, held that he had not been trying to “impart information or ideas” but that his only intention had been to insult. The Court thus declared the applicant’s complaint under Article 10 of the Convention inadmissible as being incompatible ratione materiae (see Rujak , cited above). 34 .     In the Court’s view, such circumstances do not obtain in the present case. Taking into account the circumstances in which it was given, the Court finds that by his statement the applicant wished to deny serious allegations made against him in the criminal complaint prepared and lodged by Mr   Jurašinović on behalf of his client (see also paragraph 45 and 51 below). It thus cannot be said that the applicant was not trying to impart any information or ideas and that his sole intent was to insult Mr Jurašinović. 35.     It follows that the Government’s objection as regards the applicability of Article 10 of the Convention must be dismissed. 36.     As regards the Government’s remaining argument as to how the applicant’s statement should be characterised (see paragraph 30 above), the Court considers that it will more appropriately be addressed at the merits stage (see paragraphs 80-81 and 98-101 below). 37.     The Court furthermore notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ arguments (a)    The applicant 38.     The applicant contended that the interference with his freedom of expression had not been lawful, that it had not pursued a legitimate aim and that it had not been proportionate. 39.     As regards the lawfulness of the interference, the applicant submitted that the Government had not specified the provision(s) of the Obligations Act that had constituted the legal basis for the interference in question. He also argued that the damages that he had been ordered to pay had been of a punitive nature, in breach of the domestic law. 40.     The interference had not pursued a legitimate aim because the domestic courts had given excessive weight to the protection of Mr   Jurašinović’s reputation at the expense of the applicant’s freedom of expression. 41.     The domestic courts in his case had not given relevant and sufficient reasons to justify the interference. Specifically, because those courts had not applied the relevant standards developed in the Court’s case-law, they had not properly weighed the two conflicting rights at stake and had thus failed to find a fair balance between them. The resultant interference had therefore not been proportional to the aim that it had sought to achieve. 42 .     The applicant submitted that his statement had been made in reaction to the accusation made by Mr Jurašinović linking him to an attempted murder and to organised crime. Accusing the President of a sovereign State of such a crime was certainly a matter of public interest. In replying to such accusation, he had not only sought to protect his own reputation but also the reputation of the office and the institution of the President of Croatia and the reputation of the State itself. 43 .     By making such an accusation Mr Jurašinović had initiated a debate on an issue of public interest and must have been aware of the effects it would have on public opinion. He had thus consciously entered the public sphere. 44.     As regards the Government’s argument that the accusation in question had not been made publicly (see paragraph 56 below), the applicant pointed out that Mr Jurašinović had confirmed to journalists that he had lodged a criminal complaint containing the accusation (see paragraph 9 above). The applicant also wondered how the journalists had learned of the content of the criminal complaint. 45 .     The applicant furthermore submitted that his statement had been an ironic comment and that he had used a “personified metaphor” ( koristeći se personificiranom metaforom ) and, as such, a value judgment made in reply to completely unfounded serious allegations against him. It could thus not be understood literally, as a statement of fact and/or as a gratuitous personal attack on Mr Jurašinović. The applicant therefore had not needed to prove the veracity of his metaphorical statement. He pointed out that according to the Court’s case-law, freedom of expression applied to sarcastic statements as well as to those that offended, shocked or disturbed (the applicant cited Katrami v. Greece , no. 19331/05, §§ 33-42, 6 December 2007, and Hertel v.   Switzerland , 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI). 46 .     In this respect the applicant pointed out that he himself had been called an “idiot” by one of his political opponents in a newspaper article and that he had instituted criminal proceedings for defamation as a private prosecutor against that politician. Although the criminal courts had ruled in his favour, the Constitutional Court had overturned their judgments, classifying the statement of the accused as a value judgment; that is to say the Constitutional Court had taken a legal view diametrically opposite to its own view in the present case. 47.     As regards the consequences that his statement had allegedly had for Mr Jurašinović’s reputation (see paragraph 14 above), the applicant submitted that they had been grossly exaggerated by Mr Jurašinović and were difficult to believe. The applicant furthermore argued that the consequences of the accusation levelled against him would have been far greater if it had remained unanswered than the consequences allegedly suffered by Mr   Jurašinović on account of the applicant’s statement in reply. 48 .     Accusing someone of sponsoring a murder could not be considered as the kind of criticism for which politicians should have unlimited and unconditional tolerance. Accordingly, the expectation that political figures should display a higher level of tolerance than would be expected of non ‑ public figures did not mean that they had to refrain from replying to criticism against them – especially to wholly unfounded and very serious accusations, such as the one in the present case. That had been confirmed by the Court which in its case-law had often pointed out that the Government should, instead of resorting to criminal proceedings, use other means available for replying to the unjustified attacks and criticisms of its adversaries or the media (the applicant referred to Castells v. Spain , 23   April 1992, § 46, Series A no. 236). 49.     As regards the comments by Mr Jurašinović as an interested third party (see paragraphs 64-73 below), the applicant firstly pointed out that the content of the criminal complaint and the reasons for lodging it had been unknown to him before Mr Jurašinović had mentioned them in his comments before the Court (see paragraphs 7 and 10 above and paragraph 65 below); secondly, the accusations contained therein had been completely unfounded and that their nature actually demonstrated how absurd and arbitrary they had been. 50.     As regards the comments made by the remaining two interveners (see   paragraph 74 below), the applicant submitted that they had been completely misplaced and irrelevant because the present case concerned his own freedom of expression, and not that of Mr Jurašinović, which had not been restricted in any way. In any event, linking – in a criminal complaint – a State President with attempted murder and organised crime without any evidence and then leaking those accusations to the media with a view to tarnishing the President’s reputation and creating a negative public opinion of him and thereby putting pressure on the courts, went beyond the freedom of expression enjoyed by advocates in the exercise of their profession. 51 .     Lastly, the applicant vehemently denied as absurd the suggestion made by all the interveners that by his statement he had intended to discredit Mr   Jurašinović and to threaten him with involuntary psychiatric confinement so that he would stop representing his client. He reiterated that his statement had merely been an ironic reply to serious and baseless accusations made publicly against him (see paragraph 45 above). (b)    The Government 52 .     The Government submitted that, if the Court were to find Article 10 of the Convention applicable in the present case, they would not deny that there had been an interference with the applicant’s freedom of expression. However, the interference in question had been in accordance with the law, it had pursued a legitimate aim, and it had been necessary in a democratic society. 53.     The interference had been lawful because the domestic courts’ judgment ordering the applicant to pay non-pecuniary damages to Mr   Jurašinović had been based on section 1045(1) of the Obligations Act (see   paragraph 25 above). It had also pursued the legitimate aim of protecting the reputation and the rights of others – namely the reputation of Mr   Jurašinović. It had also been “necessary in a democratic society”, having regard to the criteria established in the Court’s case-law (the Government cited Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012) for determining whether the requisite balance had been struck between the freedom of expression and the right to respect for private life. 54 .     The applicant’s statement (implying that Mr Jurašinović needed psychiatric treatment) had not imparted information of public interest. In that respect the Government referred to the domestic courts’ finding that it was unacceptable to state publicly that someone should be treated for a mental illness or disorder since that was a personal matter and not the kind of information that anyone would be allowed to disclose, let alone suggest treatment for such illness (see paragraph 17 above). The applicant had thus disclosed information about the health of Mr Jurašinović that had had nothing to do with the public interest, and the public had not in any way benefitted from the false information that Mr Jurašinović should be treated in a psychiatric hospital. 55 .     Mr   Jurašinović was an advocate of Croatian origin living and practicing in France. Although he had appeared in the media by virtue of his profession, it could not be said that he was known to the wider public. Thus, he could not be considered a public figure and as such be expected to have a greater degree of tolerance of criticism. Even though he was himself a lawyer, the applicant had also failed to take into account the fact that Mr   Jurašinović had lodged the criminal complaint as an advocate acting on behalf of his client. 56 .     The allegation that had provoked the impugned statement had thus not been made publicly, and nor had it been intended for a public readership. Likewise, the content of the said criminal complaint had not been disclosed by Mr Jurašinović, who had only confirmed to the above-mentioned journalists that he had lodged it in his capacity as an advocate acting on behalf of his client, and had refrained from making any further comments (see   paragraph 9 above). The Government also stressed that a criminal complaint was a legal instrument whereby the person lodging it merely expressed the suspicion that a criminal offence had been committed, thus bringing that alleged offence to the attention of the prosecuting authorities, in order that they might investigate whether that suspicion was well- or ill ‑ founded. 57 .     The domestic courts had held that the applicant’s statement had constituted a statement of fact and not a value judgment. That statement had been unsubstantiated and completely untrue, and its sole intent had been to insult. As regards the applicant’s argument that his statement had been purely metaphorical in nature and as regards his reference to the Court’s case-law (see paragraph 45 above), the Government submitted that the present case concerned neither criminal proceedings nor journalistic freedom (which could allow, to a certain degree, for exaggeration and even provocation). 58 .     The award that the applicant had been ordered to pay, which amounted to two of his monthly salaries as President, had not been disproportionate. Being publicly portrayed by the State President as “a crazy lawyer who belongs in a mental institution” had had harmful consequences for Mr   Jurašinović’s professional and private life, which he had described before the domestic courts (see paragraph 14 above). The domestic courts had accepted that such statements could indeed lead to such consequences and held that words spoken by the State President carried more weight than words spoken by ordinary people. In making the award those courts had taken into account the intensity and duration of the emotional distress suffered by Mr   Jurašinović, as well as numerous unpleasant situations that he had been faced with in his professional environment. The level of damages the applicant had been ordered to pay had also to be seen in the light of the fact that his statement had not been in the public interest (in that connection they referred to the arguments set out in paragraphs 29 and 54 above). For those reasons the damages that the applicant had been ordered to pay could not have had a chilling effect on his freedom of expression. 59 .     Having regard to the foregoing (see paragraphs 52-58 above), the Government argued that the domestic courts had undertaken a balancing exercise in conformity with the criteria laid down in the Court’s case-law, and had struck the right balance between freedom of speech and the public interest on the one hand, and the rights of Mr Jurašinović under Article 8 of the Convention on the other. Moreover, the reasons that those courts had set out in their decisions had been relevant and sufficient. Thus, there were no strong reasons for the Court to substitute its view for that of the domestic courts. 60 .     The Government then went on to argue that the expectation that political figures should display a higher level of tolerance than would be expected of non-public figures did not only mean that they should refrain from instituting criminal or civil proceedings against persons who may have tarnished their reputation. Rather, it also meant that they must sustain from replying to such criticism in a manner that may be injurious to the reputation of those who had offended them in the first place. 61 .     The Court had often in its case-law warned of the importance of the public officials’ choice of words – for example in cases concerning the presumption of innocence (they referred to Peša v. Croatia , no. 40523/08, §§   138-51, 8 April 2010). 62.     The applicant, as a high-ranking official, should have therefore chosen his words with particular care and reacted in a different way to the allegation articulated in the above-mentioned criminal complaint. In other words, he should have refrained from insulting the advocate who had lodged that complaint on behalf of his client in t