EINARSSON v. ICELAND JUDGMENT
13
makes a difference, even though this alone is not decisive for the
conclusion, that [X] did not maintain that the [applicant] had thus
committed a criminal offence against someone else, named or unnamed”
(see paragraph 16 above).
48. The Court reiterates that the classification of a statement as a fact or
as a value judgment is a matter which in the first place falls within the
margin of appreciation of the national authorities, in particular the domestic
courts. The Court may, however, consider it necessary to make its own
assessment of the impugned statements (see, for example, Brosa v.
Germany, no. 5709/09, 17 April 2014, §§ 43-50).”
49. The Court notes at the outset that the Supreme Court in fact accepted
that by using the term “rapist” about a named person, that person was being
accused of committing rape. However, the Supreme Court considered that
the statement in question was to be classified as a value judgment when
viewed in “context” (see paragraph 16 above). The question before the
Court is therefore whether, viewed as a whole and in context, as is required
by the case-law of the Court (see, for example, Sürek v. Turkey (no. 1)
[GC], no. 26682/95, § 62, ECHR 1999-IV), the findings of the Supreme
Court were within its margin of factual appreciation that must be afforded to
the national courts as to the classification of the statement (see Arnarson v
Iceland, no. 58781/13, § 45, 13 June 2017).
50. At the outset, the Court notes that the term “rapist” is objective and
factual in nature. It directly refers to a person who has committed the act of
rape, which is criminalised under the Icelandic Penal Code (see
paragraph 18 above). The veracity of an allegation of rape can therefore be
proven. It follows that, viewed on its face, the statement “Fuck you rapist
bastard” included a statement of fact as it clearly assigns the status of
“rapist” to the person who is the subject of the statement. Although the
Court does not exclude the possibility that an objective statement of fact,
such as the one impugned in the present case, can, contextually, be
classified as a value judgment the contextual elements justifying such a
conclusion must be convincing in the light of the objective and factual
nature of the term “rapist” taken at face value. (see, a contrario, for
example, Karman v Russia, no. 29372/02, 14 December 2006, § 41, and
Brosa, cited above, §§ 43-50).”
51. In this regard, the Court considers it crucial that when describing the
context of the statement in question, the Supreme Court relied primarily on
the applicant’s participation in a “ruthless debate” which he had
“instigated”. The Supreme Court failed to take adequate account of the
important chronological link between the publication of the statement on
22 November 2012 and the discontinuance of the criminal cases of alleged
rape against the applicant, the second only a week before, on 15 November
2012, both cases being the subject matter of the magazine interview on
22 November 2012 which prompted X to publish his statement. In other
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