| Applicant name | Mesić |
| Applicant type | Natural person |
| Number of applicants | 1 |
| Country | Croatia |
| Application no. | 45066/17 |
| Date | 30/05/2023 |
| Judges | rnfinn Bårdsen, President, Jovan Ilievski, Egidijus Kūris, Pauliine Koskelo, Frédéric Krenc, Diana Sârcu, Davor Derenčinović, |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | No violation |
| Reason | Positive obligation |
| Type of privacy | Bodily & Psychological Integrity |
| Keywords | Defamation; politician; media; trial by media |
| Facts of the case | Mesić is the former president of Croatia. In Finland, three people were charged with bribing Croatians. Two were convicted by the district court. With regard to Mesić, that court explicitly held that the mere fact that he was considered an important lobbying target did not prove that he was promised or given a bribe. Although his name came up regularly in the legal documents, this was in itself insufficient to establish that he was a beneficiary of bribes. The Court of Appeal subsequently overturned the district court’s ruling, finding that there was no proof of criminal conduct, acquitting the accused. It found no proof that they had promised any bribe, or that they had been aware of any such promises made by someone else. The applicant was not mentioned in the court of appeal’s decision. The prosecution decided not to appeal to the supreme court. Subsequent to the district court’s ruling, Transparency International Croatia called for openness and investigations into the applicant and an Internet platform published an article in which it called for an investigation as to the applicant’s role in the matter and for bringing charges against him. Mesić asked for correction of a phrase he found suggested he had been found guilty of receiving bribes, but the platform refused, because these accusations were not its own, but copied statements from the Finish indictment. The applicant brought civil action, however, the court dismissed his claim, as did subsequent courts. |
| Analysis | Several points are relevant: 1. The ECtHR points out that although in his constitutional complaint, the applicant did not explicitly rely on Article 8 ECHR or on the corresponding provision of the Croatian Constitution, he did argue that allegations in the impugned article had violated his right to honour and reputation. Therefore, the domestic authorities were in a position to remedy potential harm caused to the applicant by that event; consequently, applicant exhausted all domestic remedies. The Court adds that because the protection afforded under Article 6 § 2 ECHR may overlap with that afforded by Article 8, the inapplicability of Article 6 § 2 does not prevent the Court from taking into account the interests provided protection under that provision when dealing with the right to privacy. 2. The Court reiterates its general principles as to Article 8 ECHR and Article 10 ECHR, the right to reputation, honour and integrity on the one hand, the right to receive and impart information on the other. The importance of the press in a democratic society is underlined, as is the importance of accurate reporting by journalists. The ECtHR also points out that of relevance for the balancing of competing interests is the fact that under Article 6 § 2 ECHR, individuals have a right to be presumed innocent of any criminal offence until proved guilty. When exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review whether the national authorities have weighed the interests at stake in compliance with the criteria laid down in the Court’s case-law. If so, strong reasons are required for the ECtHR to substitute its view for that of the domestic courts. 3. Because the Court time and again emphasises the importance of Article 6 § 2 ECHR, even though that provision is not formally relied on, it would seem that the Court is heavily critical of the publication. But although the ECtHR agrees that the article interfered with applicant’s rights under Article 8 ECHR, it also concludes that the domestic authorities used the criteria as set out by the ECtHR. As the applicant is a public figure par excellence and because there were relevant findings in criminal cases, the publication, the Court finds, undoubtedly concerned a matter of public interest. The Court emphasises once again the importance of the media as public watchdog, stresses the need for a critical debate vis-à-vis politicians, and points to the fact that the publication did not disclose elements of applicant’s private life. The publication did not suggest that the applicant received a bribe, but that the prosecutor said so; the journalist was thus only reporting on what could be found in legal documents. Although the journalist did write that the applicant had been involved in criminal activities, it was also mentioned that he was not convicted for such activities. Thus, although the statement was in itself inaccurate, any reader would conclude that the applicant was not a criminal when reading the whole article. The ECtHR reiterates that the right of the media to inform the public and the public’s right to receive information is equally important as the right to the presumption of innocence and protection of private life, taking into account that a judgement by a court has substantially more repercussions that a judgment by a journalist. Thus, the ECtHR concludes, there are no strong reasons to substitute its own views for that of the domestic authorities. 4. The biggest question this judgement raises is to what extent the final statement by the Court, that the judgment of a court has more impact and is thus subject to higher standards than a publication in the media, should be uphold. For many politicians, being subject of a Twitter-storm or feeling they are the target of an unjustified media-hype, is one of the most stressful moments in their career and one of the primary reasons to quit their job. It is understandable that judge Kuris, joined, by judge Ilievski, makes this point in a dissenting opinion, although writing a 10.000 word statement, compared to the less than 1.500 word operative part of the majority’s findings, is perhaps overdoing it. |
| Other Article violation? | – |
| Damage awarded | – |
| Documents | Judgment |