Constitutional Court: some of us should take a higher level of criticism

The whole case was started by a relatively common and banal situation, dozens of which happen on the street every day. A certain police officer was investigating a minor traffic accident and the participant and the perpetrator in one person were not satisfied with the course of the investigation. Up to this point, everything is quite understandable. However, the woman did not remain only with her dissatisfaction and started to sharply criticize the behavior of the investigating police officer and inform her superior authorities.

According to the driver’s words, the police officer behaved arrogantly and unprofessionally. Instead of following a fair procedure, she allegedly taunted the woman about paying a higher fine, and moreover, she was staggering around the accident scene, moving in a volatile manner and smoking cigarettes, even while taking evidence. However, none of the alleged facts were later proven and it was clear that the woman was lying.

The police officer did not want to condone such behaviour and therefore filed a criminal complaint against the woman. The competent district court assessed that the act had probably been committed, but that it was not a criminal offence and should be dealt with by the misdemeanour committee. It is necessary to distinguish when the intensity of an act exceeds a certain level and thus fulfils the elements of the offence of defamation. In particular, when the defamation is likely to cause serious harm or otherwise endanger the person defamed.

However, the Regional Court took a contrary view on the whole matter. It overturned the decision of the district court and ordered it to retry the case. Subsequently, the district court changed its approach and found the driver guilty of the offence of defamation.

The case proceeded through repeated judicial vicissitudes, with further decisions by the regional court, the case reaching the Supreme Court and then back to the regional court. In the end, the court imposed a three-month prison sentence for the continuing offence of defamation, the execution of which was suspended for a probationary period of twelve months. The Supreme Court did not wish to rule on the case a second time, as it found the appeal to be unfounded. The next procedural step was therefore a constitutional complaint.

The Constitutional Court again considered whether the defamation was of such a high degree of intent that the driver could be prosecuted for it. According to the Court, only the most serious acts and interference with personal rights should be criminalised. The reality was that defamation was a fairly common act within the population and not all defamers could be imprisoned. Therefore, a distinction should be made between those exceptional cases where the most serious acts and infringements of personality rights (honour and reputation) occur, which cannot be fully remedied by private law remedies such as a personality protection action. The cases to be criminalised should clearly go beyond the ‘ordinary’ lies and untruths that people spread about themselves in everyday life.

The fact that the injured police officer was in her official capacity was relevant to the Constitutional Court’s assessment. Moreover, the defamation did not occur through public channels (e.g., by telling a newspaper, etc.) The driver had sent her fictitious complaint “only” to her superior police authorities. Thus, the communication of false information occurred in a non-public manner and could only have interfered with the policewoman’s professional sphere. It was these facts that were crucial¨.

The Constitutional Court did not make any light of or excuse the perpetrator’s actions. However, it stressed that the Civil Code contemplates interference with the personality of the victims, threat to their reputation and honour in its provisions. A number of similar acts are punishable by the administrative authorities in the context of misdemeanour proceedings.

The fact that the driver’s conduct (slander) was not of a long-lasting nature was also relevant. It was not a systematic network of slander, but a mistaken assessment of the situation, which resulted in several similar submissions. In them, the woman had referred to the conduct of a member of the security forces who, in her subjective perception, had acted in the line of duty contrary to her expectations. The Constitutional Court did not question the conclusions of the previous courts in the sense that it agreed with the woman’s allegations. That was not, therefore, her “win”. However, it held that the courts had infringed the applicant’s right to judicial protection, the right arising from the principle of nullum crimen sine lege (no crime without law) and, in that context, her right to freedom of expression.

The entire case will be re-examined by the criminal courts, which will be bound by the Constitutional Court’s decision.