Court decision to withdraw a statement that constituted a statement of facts regarding tax evasion by a public figure. Violation of freedom of expression
JUDGMENT
Marcinkevičius v. Lithuania 15.11.2022 (app. no. 24919/20)
SUMMARY
The case concerned a court order issued to Mr Marcinkevičius to withdraw a statement – which the
courts had found to constitute a statement of fact and to be defamatory – given in an interview to
Delfi, a news website, about a co-founder of Vilniaus Prekyba, N.N., Lithuania’s richest person.
The Court found in particular that the domestic courts had not correctly assessed whether
Mr Marcinkevičius’s statements had amounted to statements of fact, and held that they had been
within the acceptable bounds of criticism of a public figure.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Mindaugas Marcinkevičius, is a Lithuanian national who was born in 1971 and lives in
Vilnius (Lithuania). He is a founder and shareholder in Vilniaus Prekyba, one of the largest retail
companies in the Baltic region.
In 2015 Mr Marcinkevičius alleged to the authorities that Vilniaus Prekyba had engaged in tax
avoidance leading to the unlawful enrichment of N.N., another founder and major shareholder and
also the richest person in Lithuania. The prosecution was ultimately discontinued.
In December 2016 Mr Marcinkevičius gave written replies to questions for an article in Delfi, a news
website, about his conflict with N.N. and the ongoing proceedings.
Following a complaint by Mr Marcinkevičius, in March 2017 tax authorities launched an investigation
into the activities of N.N., the results of which are still pending.
In January 2017 the article was published under the title “The fight between the rich of Lithuania
continues: clashing for earned millions”. Among other things, it quoted Mr Marcinkevičius as
follows:
“We have submitted documents to the court, demonstrating [C]ompanies belonging to
[Vilniaus Prekyba] were allegedly used for transferring shareholders’ money to [N.N.’s]
personal accounts, thereby avoiding the payment of taxes in Lithuania and appropriating
other shareholders’ funds … One of the companies used in such operations was [T.] …
through which, after complicated deals, more than 20 million euros of shareholders’ funds
were allegedly laundered and at least 3 million euros in taxes hidden from the Lithuanian
[State’s] budget … When asked what may have been the goal of such a scheme, who had
sustained damage and whether the law-enforcement authorities had been contacted, [Mr
Marcinkevičius] explained: ‘In my opinion, the main goal was to appropriate the profit of
[the company] without paying taxes in Lithuania. It is obvious that not only we [the
shareholders] but also the Lithuanian State have sustained huge damage. We addressed the company, spoke about it in shareholders’ meetings, and subsequently addressed the prosecutor’s office.’”
N.N. lodged a claim against Mr Marcinkevičius for defamation. Among other arguments, he asserted
that Mr Marcinkevičius had alleged criminal actions and damage to others on his part in statements
of fact. However, those statements had had no supporting evidence.
The Vilnius District Court found for N.N. in part. It held that the majority of the statements given by
Mr Marcinkevičius had been value judgments and that they had not been expressed in an offensive
manner. However, it reached a different conclusion with regard to the sentence “It is obvious that
not only we [the shareholders] but also the Lithuanian State have sustained huge damage”, finding
that it was a statement of fact which did not have sufficient factual basis. It ordered Mr
Marcinkevičius to publicly retract that sentence.
Mr Marcinkevičius appealed, successfully, with the Vilnius Regional Court holding in 2019 that the
statements in context were subjective and merely Mr Marcinkevičius’s opinion, and that N.N., as the
richest person in Lithuania and thus a public figure, should not be offended at the statements in
question.
N.N. lodged an appeal on points of law, which led to the case being re-examined by the Vilnius
Regional Court. In its 2020 judgment it upheld the first-instance judgment. In March 2020 Delfi
published a retraction.
In 2020 the Supreme Court refused to entertain three appeals on points of law lodged by
Mr Marcinkevičius.
THE DECISION OF THE COURT…
Questions surrounding the tax affairs of N.N., the wealthiest person in Lithuania and a major
shareholder in one of the largest retailers in the Baltic region were, for the Court, a matter of public
interest. The Court was satisfied that the domestic courts had performed a balancing exercise
between, on the one hand, Mr Marcinkevičius’s right to freedom of expression, and on the other
hand, N.N.’s right to the protection of his reputation. The question was whether the domestic
courts’ finding that this part – “It is obvious that not only we [the shareholders] but also the
Lithuanian State have sustained huge damage” – of Mr Marcinkevičius’s statements had amounted
to a statement of fact had been based on an acceptable assessment of the relevant facts.
The Court noted that, in the article in question, Mr Marcinkevičius had been asked a question
consisting of three parts and he had given an answer in three sentences. The domestic courts had
assessed each those three sentences independently; instead they should have assessed them in the
round. The Court observed that no convincing reason had been given for the approach used, and the
arguments advanced by Mr Marcinkevičius as to why the three sentences should have been
assessed together had not been addressed. While the Court acknowledged that the phrase alone
might have literally connotated a statement of fact, it emphasised that that phrase should not be
divorced from its context.
There had also been a contradiction in the domestic courts’ reasoning that it had been within
acceptable bounds of criticism to allege irregular tax activities on the part of N.N., but that touching
on the consequences of that alleged activity – damage to shareholders and the State – had been
unacceptable.
The Court therefore held that the domestic courts had failed to justify their conclusion that the
phrase in question had been a statement of fact, and found that, like the rest of the statements
which Mr Marcinkevičius had made in the article, that phrase had been a value judgment.
It was furthermore satisfied that if a sufficient factual basis for the alleged unorthodox activities on
the part of N.N. had existed, then that had to also have been true for the statement concerning the
consequences of those alleged activities.
As to whether the statement had overstepped the margin of acceptable criticism, as the
Government alleged, the Court reiterated that N.N. was a public figure. It did not find that the
statement “It is obvious that not only we [the shareholders] but also the Lithuanian State have
sustained huge damage” had amounted to a gratuitous personal attack. Nor had N.N. been able to
point to any negative consequences for him as a result. The Court held that Mr Marcinkevičius had
therefore not overstepped the bounds of acceptable criticism of a public figure.
The domestic courts’ conclusion that Mr Marcinkevičius’s phrase had been a statement of fact had
thus not been based on an adequate assessment of the facts. The Court held that the order for
retraction had therefore not been necessary in a democratic society, concluding that there had been
a violation of Article 10 of the Convention.
Just satisfaction (Article 41)
The Court held that that the finding of a violation constituted sufficient just satisfaction for any nonpecuniary damage sustained by Mr Marcinkevičius. It awarded him 15,000 euros in respect of costs
and expenses.
