Case Analysis: Where is the boundary between the defendant's lawyer's freedom of speech in court?

Author of this article: Jiang Dong Source of the article: People's Court Daily

In order to further strengthen the construction of lawyers' professional ethics and practice discipline, prevent lawyers from influencing the lawful handling of cases through illegal speculation and other means, maintain a good practice environment of creditworthiness and fairness, maintain the image of the industry, and safeguard judicial fairness, the "Rules of the All-China Lawyers Association on Prohibiting Cases of Illegal Speculation (Trial Implementation)" issued on October 20 this year stipulates: "The right of lawyers undertaking cases to express opinions such as representation and defense in the course of litigation is protected by law, but the right to publish opinions that endanger national security and maliciously slander others, Exceptions are speech that seriously disrupts the order of the proceedings and the courtroom. Therefore, how to properly make defensive statements in the course of criminal proceedings and avoid malicious defamation of others has become a problem that the defense must face directly.

On 25 June 2020, the judgment of the European Court of Human Rights in the case of Milević v. Croatia, which dealt in detail with the defendants' freedom of expression and its boundaries in court defense, is noteworthy.

Basic facts of the case

On 4 September 2006, the prosecutor Milević, the defendant, was charged by the Public Prosecutor's Office of Sisak County, Croatia, with war crimes against civilians on suspicion of participating in the murder of four civilians held in Greiner Prison in 1991. Regarding the Glina prison incident, Croatia's Nova television station specially broadcast a news program "Investigation".

I.T. is a prosecution witness who was held in Glina Prison. In the war crimes case of Milevich, I.T. provided the prosecution with evidence of his detention in Glina Prison. I.T., who volunteered to testify at the trial, said he had been advised to contact I.P., but had been unsuccessful, and that he had been contacted by a reporter from the news programme Investigation, who had since contacted the prosecution to provide prosecutors with what had happened to him while in custody.

I.P. is a disabled veteran of the Croatian Army who worked to expose the crimes committed against Croats during the Croatian war and was actively involved in the production of news programs such as Investigation.

On 16 December 2008, defendant Milevich stated in his final statement in the open trial of the war crimes case: "The criminal prosecution against me is based on I.P.'s political motives and ethnic hatred. I.P. contacted prosecution witnesses directly and pressured them on how to testify, and I.P. instigated a malicious media campaign to portray me as a criminal and led this 'criminal campaign' against me. ”

On December 17, 2008, the Sisak County Court convicted Milevich of war crimes and sentenced him to 12 years in prison.

On 9 June 2009, the Croatian Supreme Court dropped the judgement and remanded it to the Sisak District Court for retrial.

On November 22, 2012, the Collegial Panel of the Sisak County Court found that Milević had taken four civilians in custody from Glina Prison and handed them over to the gendarmes, who eventually executed four people, and since there was no evidence that Milevich was involved in the plan to execute the civilians, nor evidence that Milevich knew that the four would be executed, the county court acquitted Milevich.

On January 21, 2014, the Supreme Court acquitted Milevich.

On 5 January 2009, I.P. filed a private complaint with the court against Milevich for defamation, based on Milević's remarks during the final presentation phase of the trial on 16 December 2008.

Relevant legal provisions and the focus of disputes

The case took place in Croatia, where the Croatian courts needed to take into account the Constitution of the Republic of Croatia and the Penal Code, but at the level of the European Court of Human Rights, the case mainly concerned the relevant provisions of article 6, paragraph 3, c, articles 8 and 10 of the European Convention for the Guarantee of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention).

Article 6 of the Covenant provides for the right to a fair proceeding, and under paragraph 3(c) thereof, a person charged with a criminal offence has the following minimum rights: to defend himself or herself or, if he is unable to pay the costs of legal assistance, his related fees shall be waived on the basis of the interests of equity.

Article 8 of the Covenant provides for the right to respect for private and family life: "1. Everyone has the right to respect his or her private and family life, shelter and correspondence. (2) Public institutions shall not interfere in the exercise of the above-mentioned rights, except where intervention is necessary in accordance with the provisions of the law and on the basis of considerations in a democratic society, in the interests of national security, public safety or the economic welfare of the State, in order to prevent disorder or crime, to protect health or morality, and to protect the rights and freedoms of others. ”

Article 10 of the Covenant provides for freedom of expression: "1. Everyone has the right to freedom of expression. This right should include the freedom to hold claims and the freedom to receive and disseminate information and ideas without interference by public institutions and without regard to borders. This article shall not prevent states from stipulating licensing systems for radio, television, film and other enterprises. (2) The exercise of the above freedoms, by virtue of their simultaneous obligations and responsibilities, must be bound by the procedures, conditions, restrictions or penalties laid down by law and necessary for a democratic society. These constraints are based on considerations of the interest in national security, territorial integrity or public safety, for the purpose of preventing disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for the prevention of the leakage of information received in secret, or for the preservation of the authority and impartiality of judicial officials. ”

The controversy in this case is how to balance Milevich's right to freedom of expression with I.P.'s right to personal reputation. This requires a response to the following questions:

Whether Mireevich's remarks at the final stage of the tribunal's presentation are defence views;

whether it has adversely affected the right to reputation of the third party I.P.;

Whether and to the extent of intervention in Mireevich's remarks are necessary.

Case trial procedures and their corresponding adjudications

Based on Milevich's remarks during the final presentation phase of the war crimes trial, I.P. filed a private complaint in the local court alleging Milevitch for defamation. Milevich argued that his statement at the final stage of his presentation was not an improvisation, but a pre-prepared defence, which had since been presented to the court, and that he denied that he had said that "I.P. instigated politically motivated prosecutions and led the criminal campaign against Milevich".

After reviewing the relevant evidentiary materials in the case, the Court of First Instance held that Milević's partial closing statement was not intended to prove his innocence, but rather to blame I.P. for criminal prosecution, and that even at the final stage of the presentation of the trial, Milevich should not have made these unverified and false disparagement statements to I.P., and therefore the court of first instance sentenced Milevich to defamation on March 21, 2012, and fined him.

Milević appealed against the decision of the court of first instance and appealed to the Croatian Sisak County Court, arguing that some of his statements had been distorted by media reports. The Court of Sisak County, Croatia, dismissed the appeal and upheld The defamation conviction against Milević.

Milević filed a constitutional complaint with the Croatian Constitutional Court. On 15 May 2013, the Constitutional Court of Croatia found the complaint manifestly ill-founded and declared inadmissible.

On 24 October 2013, Milević filed a complaint with the European Court of Human Rights, alleging that he had been convicted of defamation for statements made in defence of himself involving third parties, in violation of article 10 of the Convention. Milevich complained that his intention was not to defame I.P. and that there was reason to fear that I.P. would be involved in the proceedings of his case. In Milević's view, the right of the accused to defend himself freely overrides the right of any other individual to protect his or her own reputation, and the Croatian domestic courts have failed to properly balance the defendant's right to self-defence with the right to reputation of a third party.

The Government of the Republic of Croatia acknowledges that the domestic courts' conviction of Milević for defamation did constitute an interference in his freedom of expression, but that such intervention was lawful and justified and was also in accordance with the principle of proportionality. The Government is of the view that the manner in which Milević made charges against I.P. can never be considered part of Milevich's self-defence, since, in any event, the accused cannot make defamatory remarks against persons who have nothing to do with the proceedings in criminal proceedings, so the sanctions imposed on Milević are proportionate, and the domestic courts have balanced Milevich's right to self-defence with I.P.'s right to reputation.

Arguments and conclusions of the European Court of Human Rights

The European Court of Human Rights noted that, in accordance with article 10, paragraph 1, of the Convention, the sentenced by a Croatian domestic court to Milević for defamation constituted interference with his freedom of expression. At the same time, under article 10, paragraph 2, of the Convention, such intervention should be "prescribed by law", in pursuit of one or more legitimate objectives and necessary to pursue such objectives "in a democratic society". The European Court of Human Rights held that: first, there was a legal basis in domestic law for interference with Milevich's right to freedom of expression (article 200 of the Criminal Code of the Republic of Croatia); In order to assess the need for intervention in freedom of expression, it would be necessary to verify whether domestic courts had reached a fair balance between the right to freedom of expression protected by article 10 of the Convention and the right to personal reputation protected by article 8 of the Convention.

The European Court of Human Rights has emphasized that, taking into account the impartiality of justice as well as the public interest, when the right to freedom of expression of the accused relates to a defence point of view, priority should be given to allowing the accused to speak freely without fear of being charged with defamation. The views expressed by the defendant are protected as long as their defence statements do not constitute malicious allegations against the participants in the proceedings or any third party. Therefore, to determine whether the two rights of freedom of expression and the right to personal reputation are balanced, it is necessary to examine the nature and context of the disputed speech, the factual basis of the disputed speech and its impact on third parties, and the severity of the sanctions imposed on the controversial speech according to the overall situation of the case.

1. The nature and context of the controversial speech. On the one hand, As a defendant in criminal proceedings, Milevich has the right to present his own views on the facts of the case. The European Court of Human Rights noted that Milević's controversial statements against I.P. were well linked to the war crimes case and were in favour of the defence of the accused, and that if the Croatian Court of First Instance adopted the controversial statements, the credibility of the prosecution's witness testimony and the nature and context of the case as a whole would be seriously questioned.

On the other hand, because I.P. has a more special public identity as an anti-war activist, and because I.P. did attend the public hearing of The Milevich's war crimes case and was associated with witnesses, I.P. needs to have a greater tolerance for acceptable criticism.

In summary, the European Court of Human Rights held that the nature and context of the controversial statements suggest that they are of sufficient relevance to Milevich's self-defence and deserve a higher degree of protection under the Covenant.

2. The factual basis of the controversial speech and its impact on the I.P. The European Court of Human Rights agreed with the conclusion of the Croatian domestic courts that Milević's controversial remarks about I.P. were effectively equivalent to the allegations against I.P., but it should be noted that the domestic courts failed to fully recognize the fact that Milević had seen I.P. present at the trial and that I.P. himself had admitted that he had actively participated in the television programme "Investigation" and had met some witnesses in Milević's case. Moreover, the Croatian authorities have never conducted an investigation into I.P. suspected of obstructing the testimony of witnesses. Therefore, the European Court of Human Rights held that the controversial remarks had a certain factual basis and that Milevich did not constitute a false accusation of defamation against I.P.

3. The severity of sanctions imposed on controversial speech. The European Court of Human Rights held that, although Milević was sentenced to a possible minimum fine under the relevant domestic law, such sanctions were still penal and that the sanctions imposed to interfere with freedom of expression were too severe. The European Court of Human Rights noted that in democratic societies, such restrictions on freedom of expression, even in the form of lenient penal penalties, could only be considered necessary in exceptional circumstances.

In summary, the European Court of Human Rights held that the Croatian domestic courts had not struck a fair balance between Milević's right to freedom of expression and I.P.'s right to personal reputation and had failed to take fully into account the fact that the defendant's final statement deserved a higher degree of protection as part of his self-defence. Thus, the Croatian domestic courts convicted Milević of defamation in violation of article 10 of the Convention.

【This paper is the phased result of the 2019 National Social Science Foundation project "Research on the Support and Discrimination of Evidence". Item Number:19XFX006】

(Author Affilications:School of Law, Southwest University of Political Science and Law)