In the case of Mesić v. Croatia ((2022) ECHR 348) the Court of Human Rights found that there had been no breach of Article 10 when a fine had been imposed upon Stjepan Mesić, the President of Croatia from 2000-2010, for insulting Ivan Jurašinović, a lawyer of Croatian origin practising in France.

Background

On 15 September 2006, Mr Jurašinović lodged a criminal complaint on behalf of one of his clients (Mr M.T.) against 11 Croatian nationals (including Mr Mesić). Mr Mesić was accused of being an accomplice in the two counts of attempted murder and one count of attempted extortion by criminal organisation against Mr Jurašinović’s client.

On 10 November 2006, the daily newspapers Novi List and Glas Istre each published articles connecting the then President’s name to the criminal complaint referred to the applicant as a “sort of political patron of the person who ordered the murder”. The article posted on the Novi List website was entitled “The President [named] in the [criminal] complaint, together with [H.P.] and [M.N.]” and the article posted on the Glas Istre website was entitled “Mesić reported for attempted murder”.

When asked to comment on the accusations being made against him at a televised press conference, Mr Mesić stated that:

“Why this advocate who lodged the criminal complaint says that I am [H.P.’s] political patron is probably known only to him, but I would suggest to him that he visit Vrapče [a psychiatric hospital] when he comes to Zagreb because people [such as him] can receive effective treatment there…”

This statement was reported on various media outlets and the President of Croatia’s official website. Mr Jurašinović then instituted civil proceedings for defamation in Croatia on the grounds that Mr Mesić’s statements had defamed him and subsequently damaged his professional and moral credibility. Mr Jurašinović asserted that the applicants’ statement had caused him a great deal of anxiety and he had begun to experience difficulties in establishing professional contacts and new clients.

On 22 January 2007, Mr Jurašinović brought civil action for defamation against Mr Mesić and sought the equivalent of €17,570 in compensation for non-pecuniary damage.

Mr Jurašinović argued that Mr Mesić had used his public position and the related media to publicly disrepute his professional credibility. Mr Mesić maintained that his statement had constituted an attempt at irony and had to be understood in the context of his reply to the question put forward to him.

On 23 October 2008, the Zagreb Municipal Civil Court in favour of the plaintiff and ordered the applicant to pay him the equivalent of €17, 570 in compensation for non-pecuniary damage; it also ordered the applicant to pay to the plaintiff the costs of the proceedings.

Following a series of appeals by the applicant (2011 and 2012) on 26 October 2016, the Zagreb County Court reduced the amount of compensation payable to the plaintiff and the costs of the proceedings to the equivalent of €6,660 and €806 respectively.

In December 2016 Mr Mesić lodged a constitutional complaint against the civil courts’ judgments alleging a breach of his freedom of expression.  This application was dismissed on 27 September 2017. On 19 April 2018 Mr Mesić lodged an application with the Court of Human Rights, alleging a violation of Article 10.

Judgment

The Court found the domestic court’s judgement had interfered with Mr Mesić’s right to freedom of expression. However, the Court noted that when an offensive statement amounts to “wanton denigration” [33] with the sole intent to insult Article 10 might not be engaged at all (referring to the decision in Rujak v Croatia). owever,

The Court noted that the public nature of the applicant’s comments (reported by various media outlets) found that Mr Jurašinović’s rights under Article 8 of the Convention were engaged [84]. The Court emphasized that domestic courts are expected to balance the rights between the right to reputation and the right to freedom of speech in line with criteria which include:

  • whether a contribution has been made to a debate of public interest,
  • the notoriety of the person concerned,
  • his or her prior conduct,
  • the content, form and consequences of the statement in question, and
  • the severity of the sanction imposed

Contribution to a debate of public interest

The Court noted that Mr Mesić had not only expressed the opinion that the allegations against him were absurd but went further and

attempted to discredit Mr Jurašinović as a person to be trusted by an offensive statement using belittling and impertinent terms [101]

He “could…have denied the serious accusations against him without using the impugned language” [101]. The Court determined that Mr Mesić’s personal attacks on Mr Jurašinović’s character were offensive and made no contribution to a debate on a matter of public interest and went beyond the limits of acceptable criticism.

The Notoriety of the person concerned/ prior conduct:

The initial criminal allegations against Mr Mesić had not been made publicly, nor had they been intended for public readership; thus, it could not be said that Mr Jurašinović voluntarily exposed himself to public scrutiny. Although it is worth noting that the Court did recognise that the accusations made by Mr Jurašinović against a State President, in a criminal offence case, would undoubtedly be a highly publicised matter.

The Court found that to attack the credibility of Mr Jurašinović, from a public position of high authority as the Croatian president was, were likely to provide an effective means of preventing the lawyer from exercising his professional duties.

The content, form and consequences of the statement in question:

Regarding Mr Mesić ‘s “impugned statement”, the Court emphasized that words spoken by high-ranking officials were capable of causing great reputational damage to others. In this case, the words spoken by the high-ranking State Official carried greater weight than Mr Jurašinović and had greater potential to cause reputational damage. The Court also reiterated Mr Jurašinović’s inability to respond to Mr Mesić’s statement as he was bound by the secrecy of the criminal investigation in France.

However, the Court did recognise that the applicant’s statement had been interpreted too literally in the domestic civil courts. The Court concluded that the statement was metaphorical and as such constituted a pure value judgment. Considering that value judgements do not need to be susceptible to proof, the applicant did not need to prove the veracity of his statement. Nonetheless, while Mr Mesić had a right to defend himself against the grave criminal accusations, his public attempt to discredit Mr Jurašinović had gone beyond the limits of acceptable criticism and the Court concluded that regardless of whether the statement was metaphorical or literal, it had been capable of tarnishing the reputation of Mr Jurašinović. The Court stated that:

 “the applicant’s statement was not only injurious to Mr Jurašinović’s reputation but was also capable of having a “chilling”, dissuasive effect on his exercise of his professional duties as an advocate” [113].

The Court concluded that the interference with Mr Mesić’s freedom of expression had been “necessary in a democratic society” which pursued the lawful and legitimate aim of protecting Mr Jurašinović’s reputation. There had accordingly been no violation of Article 10 of the Convention.

Comment

The Court  carried out its now standard balancing exercise between the right to freedom of expression (as protected by Article 10) and the right to reputation (as protected by Article 8). The Court reiterated that only an offensive statement amounting to blatant denigration was not protected under Article 10 of the Convention. Whilst Mr Mesić did have a right to defend himself, his attack on Mr Jurašinović’s mental competence had crept into private territory and had harmed his professional reputation which had affected his ability to exercise his duties as a lawyer.  As a result, the judgement, and subsequent awarding of damages, were “necessary in a democratic society” in accordance with Article 10(2). The sanction was appropriate to neutralise the reputational damages towards Mr Jurašinović and protect his professional credibility.

The Court also reviewed the status of both Mr Mesić and Mr Jurašinović to consider the extent to which their accusations would garner public interest and damage each parties’ public reputation.  This casts an interesting light on Boris Johnson’s recent attack on lawyers for being the “main source of opposition to the Rwanda policy”. The Bar Council and Law Society of England and Wales warned that the comments from the prime minister were “misleading and dangerous”.  The words spoken by the Prime Minister are reflective of the dangers associated with undermining public confidence over the professional duties of lawyers. Attacks on lawyers and their professional capabilities, spoken by high-ranking State officials, are weighted and have the potential to cause great reputational damages. Therefore, the Court’s view that the interference with Mr Mesić’s freedom of expression was justified under Article 10(2) shows the high degree of protection accorded to lawyers who are subject to personal attacks by high state officials.  Mr Johnson should, perhaps, be more careful with his comments in this area in future.