AS TO THE ADMISSIBILITY OF
Application no. 72208/01
by Martin KLEIN
The European Court of Human Rights (Fourth Section), sitting on 8 November 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 28 June 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Martin Klein, is a Slovakian national who was born in 1947 and lives in Bratislava. The applicant is a journalist and film critic. He was represented before the Court by Ms Z. Dlugošová, a lawyer practising in Bratislava. The respondent Government were represented by Ms A. Poláčková, their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 February 1997 Miloš Forman’s film “The People vs. Larry Flynt” was released to cinemas in Slovakia. Prior to that, the film was promoted, inter alia, by means of a poster placed in the streets. In the poster the main character had the flag of the U.S.A. around his hips and he was crucified on a woman’s pubic area dressed in bikini.
On 26 February 1997 there was published “Common Declaration of Ecumenical Council of Churches and of the Slovak Bishops’ Conference”. In it protest was raised against the poster as being a profanation of God. The Movement of Christian Associations of Children subsequently associated itself to the declaration.
On 11 March 1997 Archbishop Mons. Ján Sokol made the following declaration in the Slovak Television’s newsreel:
“In these days we are witnessing ‘the humiliation of the crucifix’. In spite of all protests of the Slovak Bishops’ Conference and the Ecumenical Council of Churches aimed at stopping the production and distribution of the poster promoting the film of Miloš Forman: ‘The People versus Larry Flynt’ this poster is present in the streets of our capital Bratislava. It is a defamation of the symbol of the Christian religion. The American Film Association did not allow this blasphemy. It was not allowed in France and Belgium either. How is it possible that it was allowed in Slovakia which professes the Cyril and Methodist tradition, that is the Christian religion, even in the Constitution? ... Therefore we request the Government, the Parliament, our public officials within the legislature and judiciary to examine the entire issue and take appropriate measures for withdrawal of posters and the film and to hold accountable those who violated the laws... We hope that our protest will be perceived well by the responsible officials and that redress will be made. To all those who will endeavour to do so we express our sincere thanks in advance.”
On 28 March 1997 the weekly Domino Efekt published an article written by the applicant. The weekly was then published in 8,000 copies and it mainly concentrated on political commentary and specialised articles on economy, philosophy, natural sciences and culture. It was aimed at intellectually oriented readers with higher demands.
The article was entitled “The falcon is sitting in the maple tree1; Larry Flynt and seven slaps to the hypocrite”. In it the applicant criticised Archbishop Ján Sokol2. It did not mention that it was written in reaction to the above TV broadcast of the Archbishop. The article reads as follows:
“I. As is generally known, the Earth is a flat board. Even if it is not a flat board, the Sun turns around it. Even if it does not turn, the church dignitary made love to his mother3.
II. The text may go on as follows: ‘Even if he did not make love...’ He did. Proves: (a) Larry Flynt won a Supreme Court trial in the USA. (b) The church dignitary is a ’trtko’4. This all will acknowledge who saw him at least on TV screen.
III. I profoundly hate using the word ‘trtkať’. The indispensable exceptions can be counted on the fingers of Eltsin’s left hand:
1. ‘Trtkaj’ is the nickname of a former professor at the Chair of Journalism at the Philosophical Faculty of the Comenius University during the period of ‘normalisation’.
2. ‘Trt’ is a rarely used acclamation for [negating something] or the equivalent of the negation term ‘shit’ used in the Haná region.
3. ‘Trtko’ is – as from a certain age – the same as the perhaps more colourful and euphemistic ‘trotkoš’. Such a person does not make love, nor does he ... At the utmost – oh – [the verb ‘trtkať’ is used]; poor mother.
IV. Slovakia is not a Christian State. (When French church dignitaries requested the prohibition of the Flynt poster, they had not even thought, fearful ones, of requesting prohibition of the film. They also alleged that France was a Christian State. Alas, a glimpse at the first articles of the constitution shows that the French people live in liberty, democracy and that it is their private affair whether of not they believe. Not a single word about a Christian State.)
A Christian State would be equally as intolerable as an Islamic State, for example Iran. It indirectly follows that none of the western States is Christian. The long-lasting separation of church from the State is to be considered as a major victory of spirit over matter. (I now disregard the fact that your neighbours in an Austrian or Bavarian village will make your life difficult if you leave the church).
The continuation of certain ceremonials is no proof that a State is ‘Christian’. For example the American President ends the oath with the ritual words: ‘So help me God’. However, Larry Flynt refused to swear on the Bible with the explanation that he did not believe in God. Of course, the judge was satisfied with his statement that he would tell the truth. The American President could act likewise, but he would complicate his political life. The number of political struggles which we are able to fight in our life is limited. It is thus more important that Bill Clinton should send soldiers to Bosnia than the fact that he finally did not send there soldiers who were openly homosexual.
V. Given that the archbishop apparently lacks any sex-appeal it is entirely irrelevant whether in the inside of his body he is homosexual or bisexual (as Courtney Love in the film) or whatever. What matters, however, is his positive lustration finding5. This principal representative of the first Christian church has not even as much honour as the leader of the last gypsy band in his bow!
I do not understand at all why decent Catholics do not leave the organisation which is headed by such an ogre. Are they waiting until he dies? That is too weak. No member of the Communist Party of Czechoslovakia maintains in his or her defence: ‘I waited until Husák and Jakeš had died. Then I would make an effort to ensure redress’. Otherwise we would still live in the trees.
VI. As we actually do – in the figurative sense. The success of ‘Kolja’ (there is not a jot of paedophilia, not a single fellatio in that film) shows how pale the world has become. Salman Rushdie is the hunted one. It is true that the French President received him, but it is unthinkable that the Slovakian President would do the same. The latter preferred joining the archbishop in his effusions. Which ‘–ko’6 advised him to do so: Štefko, Zemko?
VII. The real Larry Flynt published and continues publishing materials that are scurrilous. Their degree of effrontery exceeded the threshold accepted up to then. So what? The real Larry Flynt acted in the film as a judge and in his role he made unacceptable statements. That was however foreseen in the script. The Slovakian archbishop makes unacceptable statements without being ordered to do so by anyone. And nothing?! Vanity, all is vanity.
At the request of the editorial office I leave it to the kind readers to pronounce a judgment as to the degree of scurrility of the Slovakian archbishop.”
Subsequently two associations complained that the religious feelings of their members had been offended by the article. Criminal proceedings were brought against the applicant. Archbishop J. Sokol first joined the proceedings as an aggrieved person. Subsequently he withdrew from the case and waived his right to claim compensation.
On 15 June 2000 the Košice I District Court convicted the applicant of an offence under Article 198(1)(b) of the Criminal Code. The relevant operational part of the judgment reads as follows:
“... as author of the article ‘The falcon is sitting in the maple tree; Larry Flynt and seven slaps to the hypocrite’ ... stating inter alia: ‘This principal representative of the first Christian church has not even as much honour as the leader of the last gypsy band in his bow! I do not understand at all why decent Catholics do not leave the organisation which is headed by such an ogre ...’, to which the local association of the Cyril-Method Community in Prievidza and the Bernolák Society in Bratislava reacted independently of each other as offending their religious feelings, the applicant publicly defamed a group of citizens for their faith.”
The applicant was sentenced to pay 15,000 Slovakian korunas7. This sentence was to be converted into one month imprisonment in the event that he deliberately attempted to avoid the payment of the sum.
In the proceedings before the District Court the applicant explained that his article was a reaction to statements by Archbishop J. Sokol broadcast in the main evening newsreel of the Slovak Television in March 1997. The applicant considered the Archbishop’s proposal to prohibit the distribution of both the poster and the film to be contrary to the principles of a democratic society and, in particular, the freedom of expression. The applicant considered it appropriate to express his view openly as in the TV broadcast no one had been given the opportunity to express a different view than the Archbishop. He did not consider the Archbishop to be morally spotless as he had learned that he had been registered in the files of the former communist secret police. The applicant underlined that he had not intended to offend the feelings of members of the Catholic Church.
As to his article, the applicant stated that it was not a commentary but a literary joke with ideas and associations which, admittedly, might be appreciated only by a couple of intellectuals. The applicant stressed that it had not been his intention to accuse the Archbishop of incest as the relevant passage related to the film in question in which a preacher had allegedly committed incest with his mother. His statement concerning the alleged scurrility of the Slovakian Archbishop had no erotic connotation, the applicant had in mind exclusively the moral failings of the criticised person.
The applicant also explained that he had not been able to publish any article for three years and that Radio Free Europe had stopped co-operating with him following the publication of the above article.
In the course of the criminal proceedings the Archbishop stated that he did not understand the purpose of the applicant’s attack against his person, his mother and the church which he represented. He further stated that he had pardoned the applicant.
The court heard the representatives of the two associations which had filed a criminal complaint against the applicant. They stated that the applicant had offended and scandalised Roman Catholic worshippers in that, inter alia, he had invited them to leave their church if they considered themselves to be decent and alleged that the representative of the church was an ogre.
On the basis of the evidence taken the District Court found that the applicant had committed an offence under Article 198(1) of the Criminal Code in that in his article as a whole, and by the phrases set out in the operative part of the judgment in particular, he had defamed the highest representative of the Roman Catholic Church in Slovakia and thereby offended the members of that church. In particular, the applicant’s statement by which he wondered why decent members of the church did not leave it had blatantly discredited and disparaged a group of citizens for their catholic faith. In doing so the applicant had placed the Catholic Church at the level of an organisation to which decent Catholics should not belong and which they should leave. The applicant should have been aware that his article was susceptible to being contrary to the interests protected by law. Given that a high proportion of citizens of Slovakia are Catholic, the applicant through his article harmed the religious feelings of a considerable number of persons.
Both the applicant and the associations which had filed the criminal complaint against him appealed.
The applicant argued that he had committed no offence and that his conviction violated his right to freedom of expression. He referred to constitutional provisions, international instruments and the practice of the European Court of Human Rights under Article 10 of the Convention.
The representatives of the complaining associations expressed the view that the sentence imposed on the applicant was too lenient.
On 10 January 2001 the Košice Regional Court dismissed both appeals. It held that the first instance court had established the relevant facts with sufficient certainty and that it had correctly applied the relevant law. As to the applicant’s arguments relating to his right to freedom of expression, the Regional Court held:
“It is true that Article 26 (1) and (2) of the Constitution of the Slovak Republic as well as Article 10 of the European Convention on Human Rights and Article 19 of the Universal Declaration of Human Rights guarantee the freedom of expression and the right to information.
Thus it is not disputed that, under the Constitution of the Slovak Republic, each citizen has the right to receive, seek and impart any information, however only to the extent that the constitutional rights and freedoms of others are not thereby violated. This conclusion can be indirectly deduced from Constitutional Court’s finding PL ÚS 7/96 in which the Constitutional Court held that ‘All fundamental rights and freedoms are protected only to the extent that availing oneself of a right or freedom does not disproportionately restrict or even negate a different right or freedom’.
The article ‘The falcon is sitting in the maple tree; Larry Flynt and seven slaps to the hypocrite’ is not of a common journalistic standard; the accused admitted this at the main hearing and the Regional Court considers that it goes beyond the principles of journalistic ethics. [The Regional Court] is also aware that Article 10 of the Convention protects the freedom of expression not only in case of ‘information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb or worry the State or any part of population’. The members of the appellate court’s chamber believe that even in such cases certain limits exist which should not be exceeded. The article in question is vulgar and it ridicules and offends. In view of the Regional Court it therefore enjoys no protection. Otherwise media could easily become distributors of, inter alia, various malevolent expressions which diminish human dignity. That would certainly not correspond to the spirit and principles of democracy. By the contents of the published article the accused violated the rights, guaranteed by the Constitution of the Slovak Republic, of other persons – namely a group of inhabitants with Christian faith. He thereby offended their religious feelings.”
As to the qualification of the applicant’s action under the Slovak criminal law and the penalty imposed, the Regional Court upheld the reasoning of the first instance court. Finally, the Regional Court pointed out that the associations concerned lacked standing to challenge by means of an appeal the sentence imposed on the applicant.
B. Relevant domestic law
Article 198 of the Criminal Code is entitled “Defamation of nation, race and belief”. Paragraph 1 of Article 198 reads as follows:
“A person who publicly defames
a) a nation, its language or a race or
b) a group of inhabitants of the republic for their political belief, faith or because they have no religion,
shall be punished by up to one year’s imprisonment or by a pecuniary penalty.”
The applicant complained under Article 10 of the Convention that his freedom of expression had been violated as a result of his conviction for the publication of the above article.
The applicant complained that his freedom of expression had been violated. He relied on Article 10 of the Convention the relevant part of which 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Arguments of the parties
a) The Government
The Government admitted that there had been an interference with the applicant’s freedom of expression as a result of his above conviction.
That interference had a legal basis, namely Article 198(1) of the Criminal Code. In view of the practice of domestic courts, the relevant provision was sufficiently accessible and foreseeable to enable the applicant to regulate his conduct. In particular, the applicant should have been aware that the Archbishop’s statement presented the view of several Christian institutions in Slovakia. Furthermore, it was impossible for a current reader to distinguish which parts of the statements referred to the character in M. Forman’s film and which concerned the person of Archbishop J. Sokol. Considering the above, the applicant should have anticipated that by his article he would most probably harm the religious feelings of believers and their faith.
The Government further maintained that the interference in issue pursued the legitimate aim of protection of the rights and freedoms of others, namely of Archbishop Mons. Ján Sokol and of other persons of catholic faith. In this context it was relevant that the article had been published before Easter, that is at a period when catholic believers were about to recall the crucifixion and resurrection of Jesus Christ.
As regards the question whether the interference was “necessary in a democratic society”, the Government underlined that by his article the applicant had attacked not only the supreme representative of the Roman-Catholic Church in Slovakia, but also the religious feelings of believers. Approximately 69% of population of Slovakia professed the Roman-Catholic religion and another approximately 4% belonged to the Greek Orthodox Church. There was therefore a pressing social need to protect the feelings of the persons concerned. Given that the article did not indicate in which context it was to be read, since it contained practically no arguments, and considering that its form clearly exceeded the limits of acceptable criticism and tolerance, the interest in protecting the rights of the persons concerned outweighed the applicant’s right to freedom of expression.
The extremely offensive statements in respect of Archbishop J. Sokol lacked any factual basis and they were clearly exaggerated. As such, they were not acceptable even if they were to be considered as value judgments. The amount of the pecuniary penalty imposed was relatively low, and the applicant had the right to ask for the expunging of his conviction. The interference complained of was therefore proportionate to the legitimate aim pursued.
The Government concluded that the applicant’s complaint was manifestly ill-founded.
b) The applicant
The applicant first claimed that he had not breached the limits set out in the criminal law of the Slovak Republic as none of the mandatory constituents of Article 198(1)(b) of the Criminal Code was present in the action for which he had been convicted.
There was nothing in his criticism which could be interpreted as targeting adherents of Catholic faith and it had no relationship to the Catholic religion as such. As regards the person of Archbishop J. Sokol, the applicant had wished to attract readers’ attention to the aspect of moral integrity of a public figure and, in particular, to point to the unacceptability of his activities involving (i) an appeal to ban the film and remove the posters and (ii) his co-operation with the secret police of the communist regime. His value judgment concerning the person of the Archbishop had been based on the relevant file in secret police records which had not been shown to be untrue.
In his article, the applicant used the imagery which was not commonly accepted by the society, in particular by referring to incest by the church dignitary from the film “The People vs. Larry Flynt” with his own mother. However, that imagery did not represent a statement concerning the Slovakian Archbishop. The applicant had used it to point to the limits of the freedom of expression which had also been the object of the polemics raised by the Archbishop when he had asked to ban the screening of the above film. Although the article may have shocked and offended the believers among whom the Archbishop enjoyed esteem, it did not interfere with the right of the believers to express and exercise their religion nor did it denigrate the content of their religious faith. Considering the topic of the article and also given the atmosphere and political context in the society, it did not overstep the boundaries set out by both the domestic legal system and the Convention. The form of his article reflected the degree of his indignation in respect of the Archbishop.
In the applicant’s view, the interference with his freedom of expression based solely on the fact that certain persons may have taken offence to the attack on the Archbishop could not be considered as legitimate in a democratic society.
The article was published in a weekly read by a more demanding and intellectually oriented readership. It contained certain intellectual connotations and allusions that reflected this fact. Furthermore, the weekly was published with a circulation of 8,000 whereas the Archbishop’s statement had been made during the main news programme on public service TV which had around 80% viewer rating at that time. The applicant further contested the Government’s analysis of individual passages of his article.
The investigation and conviction of the applicant had considerably contributed to reducing his prospects of finding employment on the journalistic market. The deletion of his conviction would not erase the damage caused to his reputation in the eyes of the public and within the media community. Furthermore, a number of situations existed where a copy and not an extract of a criminal conviction record was required which comprised all convictions including those that had been expunged from the record.
The applicant concluded that the interference had been grossly disproportionate to the objective pursued and, as such, it could not be regarded as “necessary in a democratic society”.
The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Françoise Elens-Passos Nicolas Bratza
Deputy Registrar President
5 The so called “Lustration Act” was adopted in the former Czechoslovakia in 1991; it was aimed at preventing high-ranking representatives of the communist regime and collaborators of its secret police from holding certain public posts.
KLEIN v. SLOVAKIA DECISION
KLEIN v. SLOVAKIA DECISION