EINARSSON v. ICELAND JUDGMENT - SEPARATE OPINION
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The majority accept that it is in the first place for the national authorities,
in particular the domestic courts, to classify a statement as a fact or as a
value judgment (see paragraphs 40 and 48 of the judgment). They add,
however, that the Court may make its own assessment of the impugned
statement (see paragraph 48 of the judgment). I agree with these principles.
It is indeed not the Court’s task to substitute its own assessment of the facts
for that of the domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (see, among other authorities, F.G.
v. Sweden [GC], no. 43611/11, § 118, ECHR 2016, and Bărbulescu
v. Romania [GC], no. 61496/08, § 129, ECHR 2017). In normal
circumstances the Court requires cogent elements to lead it to depart from
the findings of fact reached by the domestic courts (see Bărbulescu, ibid.).
In the present case the Supreme Court examined whether X, when he
used the word “rapist” in the expression “Fuck you rapist bastard”, was
referring to the applicant as someone who had committed rape, in the sense
of the crime defined in the Penal Code. The Supreme Court admitted that “it
[could] be agreed” that the term “rapist” referred to a person accused of
committing rape. The majority state that the Supreme Court “in fact
accepted” that the term referred to a person accused of committing rape (see
paragraph 49 of the judgment). In my opinion, the Supreme Court was not
so affirmative.
More importantly, the Supreme Court read the term in its context. An
assessment of the meaning of a given word, read in its context, is typically
one for which the domestic judge is better placed than the European Court.
As I understand the Supreme Court’s judgment, the relevant context was
composed of the altered picture and the comment “Fuck you rapist bastard”,
taken as a whole. It is indeed the picture of the applicant, taken from the
magazine in which he had given an interview, with the graphic and written
comments by X, which was the subject of the expression. By using the
picture as the “medium” for his message, X was manifestly reacting to the
interview. By drawing a cross on the applicant’s face and by writing the
word “loser” across it, X was manifestly expressing his disapproval of what
the applicant had stated about himself. Finally, under the altered picture, in
small letters, appeared the words “Fuck you rapist bastard”. I understand the
Supreme Court’s assessment as meaning that in this context the word
“rapist” had lost its objective meaning and had to be understood as a swear
word against the applicant. One may disagree with such an assessment, as
the minority judge of the Supreme Court did, but I do not see anything
unreasonable in it.
5. The majority of our Court apparently read the Supreme Court’s
judgment as referring to a different context from the one identified above.
According to them, “when describing the context of the statement in
question, the Supreme Court relied primarily on the applicant’s participation
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