The Truth Is No Defense

How an op-ed in a Slovenian daily left one American facing a prison sentence

I was five minutes from my house in Ljubljana, Slovenia when my neighbor called. The police were there looking for me, he said. I had no idea why I would deserve such attention, but I stayed elsewhere for a while—whatever it was, it couldn’t be good. When the police are looking for you it’s best not to be found, particularly when the police don’t speak English.

A few days later, my boss showed me a newspaper story that explained their presence. Apparently, I had missed a court date: the criminal defamation suit that Zmago Jelincic, a member of the Slovenian Parliament, had filed against me a year earlier had finally come to trial.

I’m just an American citizen, teaching English to high school students in Slovenia. But during the run-up to the 2008 U.S. election, colleagues in my Ph.D. program, who knew of my journalistic past suggested I write an op-ed for the daily Dnevnik. I wrote that the Americans who would vote for McCain-Palin were much like those who voted for Jelincic. It wasn’t a kind comparison: I also referred to Jelincic, a fervent nationalist of the Radovan Karadzic stripe, as a dangerous fundamentalist and a quack pharmacist.

Both these statements were grounded in truth. I had evidence of inflammatory statements Jelincic had made, as well as proof that he had no license or degree in pharmacy. Still, Jelincic alleged that I had not only defamed him but also offended the Slovene nation’s desire for the independence and self-preservation. And, taking advantage of a Roman law provision in which individuals can bring criminal actions against each other, he’d pressed his claims in court.

The law, I learned, was not on my side. According to Article 169 of the Slovenian penal code, insulting someone is punishable by up to three months in prison; when the insult is delivered through the mass media, the punishment can grow to six months. I presented proof for my claims to a lawyer Dnevnik had retained for me and my editor. The attorney informed us that if it had been libel suit, that would be useful. But for defamation, he said, “The truth is no defense.” Derogatory intent alone is criminal regardless of veracity.

Of course, this legal environment doesn’t mean Slovenes are more restrained than other people when it comes to insulting each other. Jelincic himself has had some very nasty things to say about minorites such as Gypsies, Croats, and Muslims, and has accused me of being a danger to the youth of the nation who should not be employed in public schools.

What it means, instead, is that those with the means to hire the best lawyers can prosecute and harass their less-powerful critics. Indeed, Jelincic is not the only politician who is currently suing a journalist for defamation. The mayor of Celje, brother of a disgraced beer tycoon, is suing journalist Biserka Karneza Cerjak over her allegations of corruption. Former prime minister Janez Jansa is suing a Finnish journalist over bribery allegations in a military procurement scandal. In another case, a citizens’ group is suing journalists who circulated a petition protesting government interference in the media; the litigants claim the petition defamed the nation.

Rather than do something to rein this in, the Slovenian parliament last year amended the defamation law to extend liability to editors and publishers. According to The Economist, similar uses of defamation laws are being used to prosecute journalists in other post-communist countries like Poland, Slovakia, and the Czech Republic.

So what happened after I dodged the police that day in December? Usually, the Slovene court system takes months to accomplish the simplest clerical task. But on Saturday, just a month after the initial visit, two policemen showed up at my house with a document I couldn’t read and they couldn’t explain. (Even though I am entitled to English translations of all documents, throughout these proceedings I have been provided with none.) One of them scrawled on a scrap of paper a courtroom number and a time on Monday morning.

I scrambled to find an attorney to represent me, locating one just half an hour before the session started. The hearing proceeded as if I weren’t there— I never knew more than the allegations against me. In the end, my attorney put a document in front of me that would settle the suit. I would pay court costs, Dnevnik would publish one of Jelincic’s anti-Croat screeds, and he would drop the charges against me. Again, there was no English translation for me. But I signed it anyway, desperate for this to go away.

Slovenia tries very hard to deny its past and present itself as a showcase for the New Europe. Yet there is an entire section of the penal code covering “crimes of honor,” as if dueling were just being phased out. Instead of pistols at dawn, there is lawyers and endless litigation. This is the opposite of the delusion of Jeffersonian democracy that brought me to this tiny new republic. I still can’t really believe that I almost went to jail for what was, at the end of the day, just name calling.

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James Smoot is an American English teacher living in Slovenia.