This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 16

Tree judgments concerning elections and freedom of speech this week. In the case of Brosa v. Germany held that an injunction against distribution of leaflet in local election campaign warning of allegedly extreme right-wing candidate was unjustified. The case concerned a court injunction prohibiting Mr Brosa from distributing a leaflet in which he called not to vote for a candidate for local mayor who allegedly provided cover for a neo-Nazi organisation. (Violation of Article 10 (freedom of expression) of the Convention. The Court held in particular that the German courts had failed to establish that it was necessary to put the protection of the candidate’s personality rights above Mr Brosa’s freedom of expression.

“34.  The Court emphasises at the outset that freedom of expression, as guaranteed in Article 10 § 1 of the Convention, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Pursuant to Article 10 § 2, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. (-).

41.  The Court reiterates in this respect that the limits of acceptable criticism are wider as regards a politician than as regards a private individual (see Scharsach and News Verlagsgesellschaft, cited above, §  30  (iii)). A politician inevitably and knowingly lays himself open to close scrutiny of his every word and must thus display a greater degree of tolerance, especially when he himself makes public statements that are susceptible to criticism. He is certainly entitled to have his reputation protected, even when he is not acting in a private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly (-).

42.  The applicant issued a leaflet asking citizens not to vote for F.G. as mayor, primarily on the basis of F.G.’s attitude vis-à-vis an association which the applicant deemed to have an extremist right-wing orientation. The leaflet, disseminated in the run-up to the mayoral elections, set out the applicant’s view of a candidate’s suitability for the office of mayor and was therefore of a political nature on a question of public interest at the material time and location. The Court reiterates in this connection that there is little scope, under Article 10 § 2 of the Convention, for restrictions on political speech or on debate of questions of public interest (-).

43.  As regards the qualification of the impugned statement by the domestic courts, the Court notes that they considered it to consist of two elements: firstly, the allegation that the association was a neo-Nazi organisation that, moreover, was particularly dangerous; and, secondly, the allegation that F.G. had “covered” for the organisation. The Court further observes that the German courts considered both to be allegations of fact without further discussion. The Court reiterates that while the existence of facts can be demonstrated, the accuracy of value judgments is not susceptible to proof. The requirement to prove the accuracy of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (-).

44.  The Court’s position is that the differentiation between an allegation of fact and a value judgment finally lies in the degree of factual proof which has to be established in order for it to constitute a fair comment under Article 10 (-).

45.  As regards the first element of the impugned statement – that the association was a particularly dangerous neo-Nazi organisation – the Court observes that the applicant considered that the facts he had presented showed that the association was a neo-Nazi organisation. The impugned statement was thus an expression of the applicant’s position on that dispute following his assessment of facts which might be accurate or not. The Court notes in this connection that the Regional Court emphasised that the domestic intelligence service was continuing to monitor the association on suspicion of extremist tendencies, which the Court interprets as a sign of the ongoing debate on the association’s political orientation. The Court reiterates that the use of the term “Nazi”, like the derivative term “neo‑Nazi”, is capable of evoking in those who read it different notions as to its content and significance (compare, for the term “Nazi” and its derivative “neo-fascist”, Karman, cited above, § 40). It cannot be considered as a mere allegation of facts, as it also carries a clear element of value judgment which is not fully susceptible to proof. This is even more the case for the notion of a “particularly dangerous” neo-Nazi organisation. Thus, the Court cannot accept the view of the German courts that the statement that the association was a particularly dangerous neo-Nazi organisation was a mere allegation of fact.

46.  Nonetheless, the Court further reiterates that, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (-).

47.  The Court notes that the Regional Court acknowledged the existence of several indicators of the association’s possible neo-Nazi character which, in the Regional Court’s view, “all in all may lead to the assumption that this is not a mere coincidence”. Thus, the court admitted, in substance, that the opinion expressed by the applicant was not devoid of a factual basis. The remaining question is whether that factual basis was sufficient.

48.  The Court observes that the German courts required “compelling proof” and thereby applied a degree of precision that comes close to the one usually required for establishing the well-foundedness of a criminal charge by a judicial court. The Court reiterates in this context that the degree of precision for establishing the well-foundedness of a criminal charge can hardly be compared to that which ought to be observed when expressing someone’s opinion on a matter of public concern. The standards applied when assessing someone’s political activities in terms of morality are different from those required for establishing an offence under criminal law (-). The Court therefore finds that the German courts required a disproportionately high degree of factual proof to be established.

49.  The Court notes that the statement that the association was a neo‑Nazi organisation has no relevance on its own, as it was not the association that sought an injunction. Its relevance for the case at hand lies in the interpretation of the term “covered” by the German courts as meaning that F.G. had knowledge of and approved of the association’s neo-Nazi orientation. The defamatory character attributed by the German courts to the term “covered” results from the allegation that the association was a neo‑Nazi organisation. The Court notes in this connection that the applicant did not insinuate that F.G. was a neo-Nazi.

50.  As regards the second element of the impugned statement, the Court observes that the term “covered” refers to the views expressed by F.G. in his letter to the editor. As such, the statement formed part of an ongoing debate. This context was also discernible to the public. The Court notes that the term “covered” was interpreted by the German courts in a restrictive manner contending that F.G. had knowledge of the association’s neo-Nazism and endorsed it. It was thus seen as a mere allegation of fact for which no sufficient factual basis existed. The Court, however, cannot endorse that view as, again, it does not take due account of the context in which the statement was made. It rather finds that a sufficient factual basis for the applicant’s statement lay in F.G.’s contribution to the debate by way of his letter to the editor emphasizing that the association had no extreme right wing tendencies and calling the applicant’s statements “false allegations”.

51.  Considering that F.G. was a politician at the local level at the material time and that the ongoing debate was being conducted in public and with relatively harsh words from all sides, and given the political context of the upcoming local elections, the Court finds that the applicant’s statement did not exceed the acceptable limits of criticism.

52.  In conclusion, the Court finds that by considering the impugned statement to be mere allegations of fact requiring a disproportionately high degree of proof to be established, the German courts failed to strike a fair balance between the relevant interests and to establish a "pressing social need" for putting the protection of the personality rights of F.G. above the applicant’s right to freedom of expression, even in the context of a civil injunction rather than criminal charges or monetary compensation claims.”

In the case of MladinaD.D. Ljubljana v. Slovenia Slovenian courts failed to strike balance between a publisher’s right to freedom of expression and a parliamentarian’s right to protection of his reputation in an article criticising his homophobic behavior. The case concerned the applicant publisher’s complaint that it was ordered by the national courts to pay damages to a parliamentarian for insulting him in an article concerning a parliamentary debate on the legal recognition of same-sex relationships. The article was published in the publisher’s magazine in June 2005. (Violation of Article 10 (right to the freedom of expression) of the Convention.

“39.  In the present case, the applicant company published in its magazine an article harshly criticising S.P., who was at the time a parliamentary deputy, for his remarks and, in particular, conduct during a parliamentary debate on the legal regulation of same-sex relationships. The statement in issue was thus made in the press, which has been held by the Court to play an essential role in a democratic society. Although journalists are required to respect certain boundaries, in particular with regard to the reputation and rights of others, their duty is nevertheless to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest (-).

40.  Moreover, the impugned statement was made in the context of a political debate on a question of public interest, where few restrictions are acceptable under Article 10 § 2 of the Convention (-), and was directed against a politician. The Court has emphasised on many occasions that a politician must in this regard display a greater degree of tolerance than a private individual, especially when he himself makes public statements that are susceptible of criticism (-). In this connection, the Court reiterates that journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation, or in other words, somewhat immoderate statements (-).

46.  In the Court’s opinion the context in which the impugned statement was made, and the style used in the article were not given sufficient consideration by the domestic courts. Viewed in the light of these two factors, the Court considers that the statement did not amount to a gratuitous personal attack on S.P. Moreover, in this regard the Court also points out that political invective often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society (-).

47.  In the light of the above, the Court considers that the domestic courts did not convincingly establish any pressing social need for placing the protection of S.P.’s reputation above the applicant company’s right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. The Court thus concludes that the reasons given by the domestic courts cannot be regarded as a sufficient justification for the interference with the applicant company’s right to freedom of expression. The domestic courts therefore failed to strike a fair balance between the competing interests. Moreover, this conclusion cannot be affected by the fact that the proceedings complained of were civil rather than criminal in nature.”

 Lastly, ion the case of Oran v. Turkey the Court held that the electoral measures applied during the Turkish parliamentary elections of July 2007 did not infringe the right to the free expression of the opinion of the people or the applicant’s right to stand for election. (No violation of Article 3 of Protocol No. 1 (right to free elections) taken alone and in conjunction with Article 14 of the Convention. The case concerned a complaint lodged by a university lecturer who had stood as an independent candidate without party affiliations in the parliamentary elections. He complained of the fact that Turkish citizens who had lived abroad for more than six months could only vote for the lists presented by the political parties, and not for independent candidates like himself, in the polling stations set up at customs posts. He further complained of the fact that independent candidates, unlike political parties, were barred by law from campaigning on radio and television.

Texts build on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.