No violation of former President of Croatia’s rights in case against him for defamation of a lawyer
SUMMARY
Mesić v. Croatia 05.05.2022 (app. no. 19362/18)
SUMMARY
The case concerned civil proceedings for defamation in which the applicant – a former President of
Croatia – had been ordered by the Croatian courts to pay the equivalent of 6,660 euros (EUR) to a
specialist lawyer of Croatian origin practising in France, for having tarnished his reputation.
Relying on Article 10 (freedom of expression), Mr Mesić complained that the judgment ordering him
to pay damages for the harm to Mr Jurašinović’s reputation had constituted a violation of his
freedom of expression. He also complained that the length of the civil proceedings had been
incompatible with Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention.
The Court found in particular that the statement made by Mr Mesić had not only been detrimental
to the lawyer’s reputation but had also been capable of having a “chilling”, dissuasive effect on the
exercise of his professional duties. Therefore, the awarding of damages had been an appropriate
sanction to neutralise that effect and proportionate to the aim of protecting the lawyer’s reputation.
Nevertheless, the Court concluded that the length of the proceedings had been excessive and had
failed to meet the “reasonable time” requirement.
PROVISIONS
Article 6 par. 1
Article 10
PRINCIPAL FACTS
The applicant, Stjepan Mesić, is a Croatian national who was the President of Croatia from 2000-10.
He was born in 1934 and lives in Pušća (Croatia).
In 2006 Ivan Jurašinović, a Croatian lawyer who was practicing in Angers (France) at the time, lodged
a criminal complaint on behalf of one of his clients against 11 Croatian nationals, including Mr Mesić,
in respect of two counts of attempted murder and one count of attempted extortion by a criminal
organisation. Mr Mesić was accused as being an accomplice. One of the 11 was an alleged wellknown
mafia boss. According to Mr Jurašinović’s client, the latter had financed Mr Mesić’s election
campaign in 2000.
Articles connecting the then President’s name to the criminal complaint appeared on the websites of
two daily newspapers in Croatia, referring to him as a “sort of political patron of the person who
ordered the murder.” However, the exact content of the criminal complaint was not known to the
media. In both articles it was stated that journalists had contacted Mr Jurašinović by phone and that
he had confirmed that the complaint had indeed been lodged, but that he was not allowed to go
into details under French law.
The then President, when asked to comment by journalists at a televised press conference, stated
that, when next in Zagreb, Mr Jurašinović should go to a certain psychiatric hospital where he and others like him could receive effective treatment. The statement was reported on the President of
Croatia’s official website and by various media outlets.
Mr Jurašinović then instituted civil proceedings for defamation in Croatia, complaining that Mr Mesić
had used his position as President of Croatia and the related media attention to sully his honour and
reputation and damage his professional and moral credibility. Mr. Mesić held that his statement had
not been offensive but had been a figure of speech (a “personified metaphor”) in an attempt at
irony in response to the unfounded and severe accusations made against him. Mr Mesić was
eventually ordered to pay Mr Jurašinović HRK 50,000 (EUR 6,660 at the time) for having tarnished his
reputation.
THE DECISION OF THE COURT…
Article 10
The Court reiterated that only an offensive statement amounting to blatant denigration, with the
sole intent to insult, was not protected under Article 10 of the Convention. Taking into account the
circumstances in which the statement had been made, the Court found that the President of Croatia
had been trying to defend himself and his intention had not solely been to insult Mr Jurašinović. In
that light, the Court found that that domestic court’s judgment had interfered with Mr Mesić’s right
to freedom of expression. However, it noted that the interference had had a legal basis in domestic
law as it had been based on the relevant provisions of the Obligations Act and had also pursued a
legitimate aim in that it had been intended to protect Mr Jurašinović’s reputation.
As to whether that interference had been “necessary in a democratic society”, the Court noted that
when Mr Mesić had remarked that Mr Jurašinović needed psychiatric treatment, he had been the
State President, and his comment had been widely reported by various media outlets. Therefore,
regardless of whether that statement should have been understood literally (as the domestic courts
held) or metaphorically (as Mr Mesić submitted), the Court accepted that it had not only been
capable of tarnishing Mr Jurašinović’s reputation, but also of being detrimental to him in both his professional and social life. Accordingly, the Court found that Mr Jurašinović’s rights under Article 8 of the Convention came into play.
Since the domestic courts had not applied the criteria laid down in the Court’s case‑law for balancing
freedom of expression with the right to reputation, the Court had to carry out the required
balancing exercise itself. In so doing, the Court considered that Mr Jurašinović had not been a public
figure before news about the criminal complaint had been reported by the Croatian media; nor had
he made any public statement regarding the President. As the allegation that had provoked
Mr Mesić’s statement had not been made publicly, nor had it been intended for a public readership,
his situation could not be compared to that of persons who voluntarily expose themselves to public
scrutiny by virtue of their role as politicians, public figures or participants in a public debate on a
matter of public interest, and for whom wider limits of criticism are acceptable.
At the same time, in the Court’s view, the alleged involvement of a State President in an attempted
murder and/or his possible links with organised crime is undoubtedly a matter of public interest.
Mr Mesić had had a right to reply to such an accusation and to defend himself, which he had done
first by making certain factual statements denying any connection with the person associated with
organised crime. Nevertheless, he had gone a step further and had attempted to discredit
Mr Jurašinović as a person to be trusted by making an offensive statement using belittling and
impertinent terms, which had not been necessary. By personally insulting Mr Jurašinović, he had
made no contribution to a debate on a matter of public interest and had gone beyond the limits of
acceptable criticism. The Court considered that high-ranking State officials attacking the reputation
of lawyers and making them objects of derision with a view to isolating them and damaging their
credibility was often as effective as a threat in preventing lawyers from exercising their professional
duties.
Lastly, the Court was mindful of the fact that Mr Jurašinović had been bound by the secrecy of
criminal investigation in France, which meant that he had not been able to refute that the
accusations made in the criminal complaint were not absurd as Mr Mesić’s comment had suggested
and placed him at a disadvantage when compared to the applicant, a powerful public figure who,
because of his role as a State President, enjoyed great media attention. Mr Mesić’s statement had
not only been detrimental to Mr Jurašinović’s reputation but had also been capable of having a
“chilling”, dissuasive effect on his exercise of his professional duties as a lawyer. Therefore, the
awarding of damages had been an appropriate sanction to neutralise that chilling effect and
proportionate to the legitimate aim of protecting Mr Jurašinović’s reputation.
The Court concluded that the interference with Mr Mesić’s freedom of expression had been
“necessary in a democratic society”. There had accordingly been no violation of Article 10 of the
Convention.
Article 6 § 1
Mr Mesić complained of the overall length of the civil proceedings, placing particular emphasis on
the length of the proceedings before the County Court.
The Court rejected Mr Mesić’s complaint in so far as it concerned the period before 13 March 2013
as he had not exhausted the domestic remedy that existed at the time. The Court therefore only
examined the period after that date which had lasted four years and seven months. Having
examined all the material, the Court considered that the Government had not put forward any fact
or argument capable of justifying the length of the civil proceedings. It therefore concluded that the
length of the proceedings had been excessive and had failed to meet the “reasonable time”
requirement. There had accordingly been a violation of Article 6 § 1 of the Convention.
