Up-1019/12

Reference no.:
 Up-1019/12
Objavljeno:
 Official Gazette RS, No. 30/2015 | 26.03.2015
ECLI:
 ECLI:SI:USRS:2015:Up.1019.12
Abstract:
Considering the protection enjoyed by the right to freedom of expression (the first paragraph of Article 39 of the Constitution), any restriction of the exercise of this human right must be carefully weighed and convincingly substantiated. Such applies even more in cases where the court completely denies an individual the exercise of freedom of expression or excludes his or her conduct from the protection of the mentioned human right.
 
The finding that the statements at issue are exaggerated, critical, and offensive does not in itself constitute grounds for completely dismissing the individual’s right to freedom of expression. Exaggerated and offensive statements are not protected by the right to freedom of expression only if their sole purpose is to insult or humiliate the affected person. In order to conclude that the statement was made with contemptuous intention, it is decisive to establish that such a statement no longer refers to the subject of a debate on matters of public interest, but that the insult or defamation of the affected person is in the foreground.
 
Furthermore, the finding of the courts that the disputed statements allegedly contain incorrect statements or opinions without a sufficient factual basis is not sufficient grounds for completely dismissing the complainant’s right to freedom of expression. The complainant could only be said to have abused the right to freedom of expression if the court had found that she knowingly and intentionally wrote untrue defamatory statements about the plaintiff or that she had acted with gross negligence (i.e. indifference).
 
As the courts excluded the complainant from the protection of freedom of expression without providing appropriate and sufficient reasons, they violated her right determined by the first paragraph of Article 39 of the Constitution.
 
The circumstances of the case at issue impose on the court the obligation to weigh the complainant’s right to freedom of expression (the first paragraph of Article 39 of the Constitution) against the plaintiff’s right to the protection of her honour and reputation, protected by Articles 34 and 35 of the Constitution.
Note:
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Document in PDF:
Type of procedure:
 constitutional complaint
Type of act:
 individual act
Applicant:
 Ana Lapuh, Ljubljana
Date of application:
 07.11.2012
Date of decision:
 26.03.2015
Type of decision adopted:
 decision
Outcome of proceedings:
 annulment or annulment ab initio
Document:
 AN03811