Resolution CM/ResDH(2011)156

Execution of the judgment of the European Court of Human Rights
Klein against the Slovak Republic

(Application No. 72208/01, judgment of 31 October 2006, final on 31 January 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant journalist’s right to freedom of expression due to his conviction for defamation, which was neither corresponded to a pressing social need nor proportionate to the legitimate aim pursued (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)156

Information about the measures to comply with the judgment in the case of
Klein against the Slovak Republic

Introductory case summary

This case concerns a violation of the applicant journalist’s right to freedom of expression on account of his criminal conviction for defamation following the publication in March 1997 of an article on Archbishop Ján Sokol (violation of Article 10). The article criticised the Archbishop for advocating that a film, and the posters publishing it, should be withdrawn as they constituted a defamation of the symbol of the Christian religion, and questioned why decent members of the Catholic Church did not leave it. By judgment of 15/06/2000, the applicant was convicted of an offence under Article 198(1)(b) of the Criminal Code on the grounds that he had defamed the Archbishop and thereby offended members of the Roman Catholic Church. He was sentenced to a fine, to be converted into one month’s imprisonment in the event of failure to pay. The judgment was upheld on appeal by the Košice Regional Court on 10/01/2009.
The European Court found that the applicant’s article criticised exclusively the person of the Archbishop, and had neither interfered with the right of believers to express and exercise their religion, nor denigrated their faith. In these circumstances the Court observed that, irrespective of the nature of the penalty imposed, the applicant’s conviction was in itself inappropriate. It held that the interference with his right to freedom of expression neither corresponded to a pressing social need, nor was proportionate to the legitimate aim pursued.

I.	Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
-	6 000 EUR	5 210 EUR	11 210 EUR	
Paid on 2/03/2007	

b) Individual measures

1) Consequences of the violation for the applicant: The fine imposed on the applicant amounted to Slovakian Korunas 15,000 (approximately 375 EUR). It was paid on 10/12/2002 by a private company which was in liquidation when the European Court delivered its judgment. The European Court therefore dismissed the applicant’s claim for pecuniary damage as he did not allege that he was under any legal obligation to return the sum to the company. The European Court awarded the applicant just satisfaction for non-pecuniary damage and for costs and expenses.
According to the applicant’s lawyer, his conviction prevented him from applying for certain posts for which a clean criminal record is required (state authorities, municipalities, self-governing regions, legal persons falling under the competence of these entities, etc.). In September 2007 the applicant was refused the post of English teacher in a high school.
	2) Extraordinary remedy lodged by the Minister of Justice: On 15/06/2005 the Minister of Justice lodged an extraordinary remedy with the Supreme Court against the judgment of the Košice Regional Court of 10/01/2001, which had upheld the conviction of the applicant on 15/06/2000. The Minister of Justice expressly stated that in his opinion the relevant provision of Section 198§1(b) of the Criminal Code, defining the offence of defamation of nation, race and belief, was contrary to the Constitution.
On 13/06/2007 the Supreme Court dismissed the extraordinary remedy lodged by the Minister of Justice, stating that it was not entitled to decide on the compliance of a generally binding legal regulation with the Constitution. Moreover, it did not consider itself to be bound by the legal opinion of the European Court, as Slovak criminal law is silent on the binding nature of a judgment of the European Court on the ordinary courts of the Slovak Republic.
On 5/10/2007 the Agent of the Government of the Slovak Republic before the European Court issued a press release in which she declared that she considered this development as unfortunate, and recalled, in the light of Article 46, the state’s obligation to remove or redress the violation of the Convention found by the European Court and that the applicant remained subject to a criminal conviction by a final decision of a domestic court. (See also the information below on the direct effect of the European Court’s judgments in Slovakian law.)
	3) Reopening of proceedings: On 30/01/2008 the Kosice I District Court, under Section 394§§1 and 4 of the Code of Criminal Procedure, allowed the reopening of the criminal proceedings and quashed its judgment of 15/06/2000 and the judgment of the Kosice Regional Court of 10/01/2001. Consequently, the Kosice I District Court began new proceedings on the basis of the original charge, in which the applicant was acquitted on 19/09/2008. In these circumstances, no further individual measure appears necessary.

II.	General measures

	1) Publication and dissemination: The judgment was translated and published in the journal Justičná Revue No 12/2006, and distributed to all regional courts and to the Supreme Court by a circular letter of the Minister of Justice. Presidents of regional courts and the president of the criminal division of the Supreme Court have been requested to notify the judgment to all judges within their jurisdiction dealing with criminal cases.
	2) Seminars on the freedom of expression: In November 2005 and February 2006 the Judicial Academy, in co-operation with the Office of the Agent of the Slovak Republic, organised seminars on the freedom of expression under Article 10 of the Convention and the European Court’s case-law. These seminars were attended by judges, public prosecutors and judicial officials. In February 2008 the judgment of the European Court in this case was the focus of a seminar on Article 10 of the Convention, organised by the Office of the Agent of the Slovak Republic before the European Court in association with the European Legal Centre and the Academy of Justice. The seminar was attended by judges of the Supreme Court and public prosecutors from the General Prosecution Office.

	3) Direct effect of the Convention in Slovakia: According to the authorities, the decision of the Supreme Court of 13/06/2007, which took no account of the European Court’s judgment, is not typical of the case-law of this Court. For example, in decisions concerning detention on remand, the Supreme Court usually refers to Article 5 of the Convention and the case-law of the European Court (for instance, in a decision of 5/04/2005, No. 1 Toš 60/2005).

III.	Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the Slovak Republic has thus complied with its obligations under Article 46, paragraph 1, of the Convention.