BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF
CSÁNICS v. HUNGARY
(Application
no. 12188/06)
JUDGMENT
STRASBOURG
20
January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Csánics v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
judges,
and
Sally Dollé, Section
Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 12188/06) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr Sándor Csánics
(“the applicant”), on 1 March 2006.
- The
applicant was represented by Mr I. Barbalics, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Justice and
Law Enforcement.
- The
applicant, a trade union leader, alleged that his right to freedom of
expression, within the meaning of Article 10 of the Convention, had
been violated by the decisions of the domestic courts ordering him to
arrange for a rectification of assertions he had made in an interview
concerning a demonstration organised by the trade union.
- On
7 September 2007 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1955 and lives in Érd.
A. The circumstances of the case
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- The
applicant is the chairman of the Trade Union of Value Transporters
and Security Workers (Értékszállítási
és Őrzésvédelmi Dolgozók
Szakszervezete), which represents its members in numerous
companies.
- The
applicant was an employee of the security company G. As the chairman
of the trade union, he had constant arguments with the company. In
1998 his employment was terminated, which measure was declared
illegal by the competent courts in 2000. The applicant alleged that,
since then, company G. has not allowed him to enter its premises,
even on official trade union business.
- In
March 1999 the applicant lodged a private motion (magánindítvány)
with the Pest Central District Court against S.K., the managing
director of company G., alleging that the latter had committed
defamation by saying at a company meeting that the applicant “had
taken under his wing criminals who had worked in the company”.
In September 2003 the Budapest Regional Court, acting as a
second-instance court, ultimately found S.K. guilty of defamation and
fined him 150,000 Hungarian forints (HUF) (approximately 550 euros
(EUR)).
- In
June 2002 the trade union became active in company D. In the second
half of the same year, the trade union was informed of an intention
to sell company D. and that one of the possible buyers was company G.
The employees of company D. opposed the project and, in order to
express their opinion, requested the trade union to organise a
protest demonstration. This it did in front of the Parliament
building. The applicant, as chairman of the trade union, gave
interviews to several newspapers concerning the events.
- On
14 December 2002, a daily newspaper Színes Mai Lap
published an article which reported the planned sale of company D.
and described the demonstration, analysing the background to the
events. It interviewed the applicant, who made the following
statements.
“... the other reason [for which we are holding a
demonstration] is that 2,500 employees should not lose their
livelihood and that such a company [i.e. company G.] which tramples
constitutional and labour rights should not be the successor of
company D. (...) Because of the inhuman conduct of the management [of
company G.] [the employees] should not have to stay in a place where
they were called ‛criminals'. We initiated court proceedings in
some fifty cases because of that.”
- On
17 January 2003 S.K. brought an action against the applicant before
the Budaörs District Court, asking the court to establish that
the applicant's statements had infringed his good reputation, to
order the applicant to refrain from such acts in the future and to
arrange for a rectification to be published.
- On
17 March 2004 the District Court, finding that it was impossible to
identify S.K. directly from the impugned article, dismissed his
action. The plaintiff appealed.
- The
Pest County Regional Court was of the view that the District Court's
decision had only been a partial decision determining the
applicability of the law on defamation. On 8 July 2004, it amended
the first-instance decision and established that the plaintiff could
be identified from the article in question. Thus he, as an affected
person, might lawfully claim the protection of his privacy rights.
- In
fresh proceedings the District Court found, on 24 November 2004, that
the applicant had tarnished the plaintiff's good reputation by the
impugned statements and ordered him to publish a rectification and
pay the plaintiff's court fees in the amount of HUF 82,000
(approximately EUR 300). It established that the applicant's
assertions were statements of fact rather than value judgments. It
also noted that, although it was true that numerous civil and labour
proceedings had been instituted against company G., this fact could
not justify defamatory statements.
- The
District Court refused the applicant's request to obtain the
decisions adopted in those other proceedings, or to hear witnesses
who might be able to prove the veracity of his assertions. It was of
the view that this evidence could not possibly render lawful his
statements, which in any event were exaggerated and offensive.
- The
applicant appealed. On 7 April 2005 the Pest County Regional Court
upheld the first-instance decision. It held that the applicant's
assertions were value judgments based on factual allegations
expressed in a wholly unlawful manner, since he had articulated his
views in a “gratuitously insulting, offensive and harsh way.”
- The
Regional Court also referred to a decision of the Supreme Court which
had come to the same conclusion in another defamation case instituted
directly by company G. against the applicant. It established that the
protection of the rights of others constituted a legitimate
restriction on freedom of expression even in cases of public
interest. However, it established that the present case did not deal
with such matters of general concern, even if company D. had many
employees.
- The
applicant lodged a petition for review with the Supreme Court. He
pointed out that the final decision had erroneously found his
assertions to be statements of fact, since they were the expression
of an opinion based on true facts. The applicant also stressed that
his aim had been to inform the public about an important matter.
Lastly, he was of the view that in expressing his opinion he could
not have harmed anyone's reputation, even if he had used harsh terms,
and that he had acted in compliance with relevant domestic law, the
well-established case-law of the Constitutional Court and the Supreme
Court, as well as with European standards.
- On
8 September 2005 a single judge of the Supreme Court declared the
applicant's petition inadmissible. It found that the final decision
had been correct and in accordance with law, particularly in view of
the nature of the applicant's assertions, which had been gratuitously
insulting, offensive and harsh, and violated the plaintiff's privacy
irrespective of their value judgment content. The Supreme Court also
pointed out that the right to freedom of expression was not unlimited
and should not violate the personality rights of others.
B. Relevant domestic law
1. The Civil Code
Section 78
“(1) The protection of personality rights shall
also include the protection of the good reputation of others.
(2) In particular, the statement or dissemination of an
injurious and untrue fact concerning another person – or the
presentation, with untrue implications, of a true fact relating to
another person – shall constitute defamation.”
Section 84
“(1) A person whose personality rights have been
infringed may bring the following civil-law claims, depending on the
circumstances of the case:
a) a claim that the court establish that an infringement
has taken place;
b) a claim that the infringement be discontinued and the
perpetrator be forbidden from further infringements;
c) a claim that the perpetrator be ordered to give
satisfaction by making a declaration or in any other appropriate
manner and, if necessary, this be made adequately public by, or at
the expense of, the perpetrator;
d) a claim that the prejudicial situation be terminated,
and that the situation prior to the infringement be restored by, or
at the expense of, the perpetrator ...;
e) a claim for damages under the rules of civil law
liability.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the domestic courts' decisions imposing
sanctions on him for expressing his views concerning a demonstration,
which had been organised by the trade union of which he was the
chairman, had violated his right to freedom of expression within the
meaning of Article 10 of the Convention. This provision in so far as
relevant 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. ...
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, ... for the
protection of the reputation or rights of others, ...”
A. Admissibility
- The
Government argued that the application had been submitted outside the
six-month time-limit laid down in Article 35 § 1 of the
Convention. They observed that the final decision in the case was
given by the Regional Court on 7 April 2005. However, the application
was only lodged on 1 March 2006. The applicant's petition for a
review by the Supreme Court could not, in their view, be regarded as
an effective remedy in the circumstances, since it did not meet the
statutory requirements and was rejected at the admissibility stage.
It did not, therefore, interrupt the running of the six-month
time-limit.
- The
applicant contested this view. He maintained that the Supreme Court,
although it had dismissed his petition at the admissibility stage,
had in fact dealt with the merits of the case.
- The
Court observes that the Supreme Court did not reject the applicant's
petition as being wholly futile; instead, it adopted a reasoned
decision in the matter. In these circumstances, it is satisfied that
the order delivered on 8 September 2005 constituted the final
domestic decision in the case and that the six-month rule has been
complied with (see Tsomtsos and Others v. Greece, 15 November
1996, § 32, Reports of Judgments and Decisions 1996 V).
Moreover, the Court considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Whether there was an interference with the exercise of freedom
of expression
- The
Government did not dispute that the applicant could rely on the
guarantees contained in Article 10; nor did they deny that the
decisions of the domestic courts interfered with the exercise of his
rights under that provision. The Court sees no reason to hold
otherwise. The Government contended, however, that the interference
was justified under the second paragraph of Article 10.
2. Whether the interference was justified
- It
must therefore be determined whether the measure complained of was
“prescribed by law”, prompted by one or more of the
legitimate aims set out in paragraph 2, and was “necessary in a
democratic society” to achieve them.
a. Prescribed by law
- There
was no dispute between the parties that the restriction imposed on
the applicant's freedom of expression was based on sections 78 and 84
of the Civil Code, the wording of which is clear. Therefore, the
requirement of lawfulness was satisfied.
b. Legitimate aim
- The
Government submitted that the restriction on the right to freedom of
expression served to protect the rights of others, namely the good
reputation of the plaintiff.
29
The applicant did not address this issue.
- The
Court is satisfied that the measure complained of pursued the
legitimate aim of protecting the rights of others.
c. Necessary in a democratic society
(i) The arguments of the parties
- The
Government submitted that the applicant's assertions, which directly
concerned his former employer, were statements of fact rather than
value judgments. They were of the view that the mere existence of
labour and criminal proceedings instituted against the plaintiff
could not serve as a basis for the applicant's allegations or justify
statements violating the former's good reputation. They also pointed
out that the Contracting States enjoyed a certain margin of
appreciation when limiting the rights enshrined in Article 10. The
Government were of the view that, since the applicant's declarations
were statements of fact capable of harming S.K.'s reputation, he had
overstepped the Convention limits of freedom of expression.
- The
Government also maintained that the applicant could have articulated
his criticism without using the impugned expressions. They pointed
out in this connection that it had been irrelevant to prove the
veracity of his statements since they had in any event been too harsh
and exaggerated vis-à-vis a person who was not a public figure
or a politician. They maintained that it was generally for the
domestic courts to decide on the relevance of requests to hear
evidence. Lastly, the Government held that the courts had sanctioned
the applicant in order to protect the plaintiff's good reputation.
Therefore, the decisions of the domestic courts could not be regarded
as interference unnecessary or disproportionate in a democratic
society.
- The
applicant submitted that S.K. could not have been identified from his
statements, therefore, his good reputation could not have been
tarnished. He also maintained that his assertions were value
judgements based on true information. He drew attention to the fact
that S.K. had been found guilty of defamation – he had called
some of his employees, among them the applicant, criminals. He added
that, unlike S.K., he had been deprived of any possibility to prove
the veracity of his allegations.
- Moreover,
the applicant noted that his statements had not been self-contained,
discrediting or humiliating criticism but a manifestation of the
protection of employees' rights. It was true that the plaintiff was
not a public figure, but the high number of the employees concerned
made the issue a subject of considerable public interest. In the
applicant's view, as a trade union leader, he had had no other choice
but to stand up for those rights in the impugned manner. Lastly, he
maintained that if the manner in which domestic courts had dealt with
the case became standard practice, it would endanger the effective
exercise of trade union rights. Therefore, the interference could not
be regarded as necessary or proportionate in a democratic society.
(ii) The Court's assessment
α. General principles
- The
Court reiterates that the test of “necessity in a democratic
society” requires the Court to determine whether the
interference complained of corresponded to a “pressing social
need”. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those given by an
independent court. The Court is therefore empowered to give the final
ruling on whether a “restriction” is reconcilable with
freedom of expression as protected by Article 10 (see, among many
other authorities, Perna v. Italy [GC], no. 48898/99, §
39, ECHR 2003-V; Association Ekin v. France, no. 39288/98, §
56, ECHR 2001-VIII).
- The
Court's task in exercising its supervisory function is not to take
the place of the competent domestic courts but rather to review under
Article 10 the decisions they have taken pursuant to their power of
appreciation (see Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-I). This does not mean that the
supervision is limited to ascertaining whether the respondent State
exercised its discretion reasonably, carefully or in good faith. The
Court looks at the interference complained of in the light of the
case as a whole, including the content of the statement held against
the applicant and its context (see News Verlags GmbH & CoKG v.
Austria, no. 31457/96, § 52, ECHR 2000-I).
- In
particular, the Court must determine whether the reasons adduced by
the national authorities to justify the interference were “relevant
and sufficient”, and whether the measure taken was
“proportionate to the legitimate aims pursued” (see
Chauvy and Others v. France, no. 64915/01, § 70, ECHR
2004-VI). In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article 10 (see, among many other
authorities, Zana v. Turkey, 25 November 1997, § 51,
Reports of Judgments and Decisions 1997-VII).
β. Application of these principles to
the present case
- The
Court observes that the applicant stated in essence that the
plaintiff had constantly breached his employees' constitutional and
labour rights in particular by calling them, including the applicant,
criminals. The Court also notes that the Hungarian courts held that
the impugned statements were statements of fact, rather than value
judgments concerning the plaintiff's professional activity. They were
of the view that the applicant's assertions had been expressed in
such a harsh and exaggerated manner that they had given rise to a
violation of S.K.'s personality rights irrespective of whether they
were true or false.
- In order to assess the justification of the statements
in question, a distinction needs to be made between statements of
fact and value judgments, in that, while the existence of facts can
be demonstrated, the truth of value judgements is not susceptible of
proof. The requirement to prove the truth of a value judgment is
generally impossible to fulfil and infringes freedom of opinion
itself, which is a fundamental part of the right secured by Article
10 (see, for example, Lingens v. Austria, 8 July 1986, §
46; Series A no. 103, Oberschlick v. Austria (no. 1),
23 May 1991, § 63, Series A no. 204,). The
classification of a statement as a fact or a value judgment is a
matter which, in the first place, falls within the margin of
appreciation of the national authorities, in particular the domestic
courts (see Pedersen and Baadsgaard v. Denmark [GC],
no. 49017/99, § 76, ECHR 2004 XI). However, even
where a statement amounts to a value judgment, there must exist a
sufficient factual basis to support it, failing which it may be
excessive (see Jerusalem v. Austria, no. 26958/95, §
43, ECHR 2001-II).
- In
the Court's view, the present case concerns two interrelated
assertions. Concerning the first one, namely, that in company G. the
employees' rights had been trampled by the inhuman conduct of the
management, the Court considers that the applicant was assessing
company G.'s behaviour in general, and his declaration amounted to a
value judgment. As to the second issue – namely that, according
to the applicant, company G. considered him and his colleagues as
criminals – the Court sees no reason to depart from the
domestic courts' finding that this statement was essentially factual.
For the Court, such utterances were, at least in part, susceptible of
proof.
- The
Court therefore finds striking that the domestic courts considered
the manner in which the applicant expressed his statements
“gratuitously insulting, offensive and harsh” and gave
him no opportunity at all to prove the veracity of his assertions.
The Court draws attention to the fact that in December 2003 the
plaintiff was found guilty of defamation for having alleged that the
applicant had been supporting criminals; his employment was
terminated illegally and, moreover, he had difficulty entering the
company's premises, even on trade union business (see paragraphs 8
and 9 above). Furthermore, it was not disputed between the parties
that numerous labour proceedings instituted against company G. were
pending at the material time.
- For
the Court, it is therefore more likely that the applicant's impugned
statements were well-founded or that at least he voiced them in good
faith, in compliance with the minimum requirement applicable to those
who engage in public debate (see Steel and Morris v. the United
Kingdom, no. 68416/01, § 90, ECHR 2005 II).
The Court observes in that connection that – given the number
of employees concerned – the dispute at issue was a debate on
matters of public interest, where there is little scope for
restrictions (see Wingrove v. the United Kingdom, 25 November
1996 Reports 1996-V, § 58; and Ceylan v. Turkey [GC],
no. 23556/94, § 34, ECHR 1999 IV).
- Consequently,
the Court considers that the domestic authorities should have
provided the applicant with an opportunity to substantiate his
statements. It would go against the very spirit of Article 10 to
allow a restriction on the expression of substantiated statements
solely on the basis of the manner in which they are voiced. In
principle, it should be possible to make true declarations in public
irrespective of their tone or negative consequences for those who are
concerned by them.
- The
Court acknowledges that the accusation levelled by the applicant's
allegations was serious. However, as shown above (paragraph 41),
there was a sufficient factual basis to support it. Moreover, the
Court observes that the applicant made the impugned statements in a
debate on matters of public interest, namely in the course of a
collective labour dispute. The Court is aware of the fact that, given
what is at stake, the tone of such disputes is often heated. It is of
the view that these debates, since they concern the core interests of
employees, require a high level of protection under Article 10
(see, for example, Steel and Morris v. the United Kingdom,
cited above, § 88).
- The
Court considers that the applicant, a trade union leader, formulated
his statements in a manner commonly found in labour disputes. It is
not therefore persuaded by the domestic courts' findings that he
overstepped the limits of tolerable criticism since that would
constitute an unacceptable restriction not only on the applicant's
right to freedom of expression, but also on the effective functioning
of trade unions. In sum, it can be concluded that the correct balance
was not struck between the need to protect the applicant's freedom of
expression and the need to protect the plaintiff's rights and
reputation.
- Lastly,
the Court observes that the domestic courts imposed a relatively mild
sanction on the applicant: they ordered him to arrange for a
rectification to be published and pay the court costs. This mild
sanction does not, however, render the restriction compatible with
the Convention if it is not in itself necessary in a democratic
society (Turhan v. Turkey, no. 48176/99, § 29,
19 May 2005), which is indeed the Court's finding in the present
case.
- In
conclusion, the Court finds that there has been a violation of
Article 10 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 6 AND 11 OF THE
CONVENTION
- The
applicant alleged that the domestic courts had breached Article 6 of
the Convention (the right to a fair hearing) by not allowing him to
prove his allegations. He also relied on Article 11 (freedom of
association). However, the Court considers that, although
these complaints are admissible, in the light of its finding above of
a violation of Article 10 of the Convention (see paragraphs 44-47),
it is unnecessary to examine the merits of these matters separately.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
Court observes that the applicant made a complaint under Article 13
of the Convention concerning an alleged lack of effective domestic
remedies. The aim of Article 13 being one of procedures, not of
results, the Court notes that this complaint is wholly
unsubstantiated since three court instances dealt with the merits of
the applicant's case. It follows that this part of the application is
manifestly ill-founded within the meaning of Article 35 § 3 and
must be rejected pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered the applicant's claim excessive.
- The
Court finds that the applicant can reasonably be deemed to have
suffered some non-pecuniary damage in the circumstances. Making its
assessment on an equitable basis, the Court awards him EUR 3,000
under this head.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the legal fees incurred before
the domestic courts and the Court. This figure corresponded to the
court fees before the domestic tribunals (approximately EUR 400),
his lawyer's fee (approximately EUR 400) and EUR 200 for clerical
expenses. He submitted the domestic courts' decisions as proof of the
court fees, and his agreement with his lawyer concerning the latter
item.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the documents in
its possession and the above criteria, the Court finds it reasonable
to award the sum claimed in its entirety under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning freedom of
expression, the unfairness of the proceedings and freedom of
association admissible;
- Declares the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there is no need to examine
separately the complaints under Articles 6 and 11 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention,
the following amounts, to be converted into Hungarian forints at the
rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros) plus any tax that may
be chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 January 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
