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SECOND
SECTION
CASE OF LEPOJIĆ v. SERBIA
(Application
no. 13909/05)
JUDGMENT
STRASBOURG
6
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lepojić v.
Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A.
Mularoni, judges,
Mr M. Kreća, ad hoc judge,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13909/05) against the State
Union of Serbia and Montenegro, lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”), by
its national Mr Zoran Lepojić (“the applicant”) on 6
April 2005. On 3 June 2006 Serbia had taken the place of the State
Union of Serbia and Montenegro as a High Contracting Party to the
Convention (see paragraph 38 below).
- The applicant, who had been
granted legal aid, was represented before the Court by the Belgrade
Centre for Human Rights, a non-governmental human rights organisation
based in Serbia. The Government of the State Union of Serbia
and Montenegro and, subsequently, the Government of Serbia
(“the Government”) were represented by their Agent, Mr S.
Carić.
- The
applicant complained that he had suffered a breach of his right to
freedom of expression stemming from his criminal conviction and the
subsequent civil court judgment, ordering him to pay damages
in respect of the same published article.
- On
12 January 2006 the Court decided to communicate the application to
the Government. Under Article 29 § 3 of the Convention, it was
also decided that the merits of the application would be examined
together with its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and currently lives in Babušnica.
On 25 April 2005 he was formally certified as unemployed by the
respondent State’s authorities.
A. The article and the ensuing proceedings
- The
applicant was the President of the Babušnica branch of the
Demo-Christian Party of Serbia (Demohrišćanska stranka
Srbije) and a member of the Central Board (Glavni odbor)
of the same political party.
- In
August of 2002, during an election campaign, an article written by
the applicant, entitled “A Despotic Mayor” (Nasilnički
predsednik), appeared in issue no. 1, page 10, of a newsletter
called Narodne luZnicke novine. In the relevant part, this
piece read as follows:
“The citizens of the Municipality of Babušnica
have not had a Mayor for quite some time now because the former Mayor
[P.J.] has been expelled from JUL [a political party] and has thus
lost his mandate by virtue of law ... Despite the official Opinion of
the Ministry of Justice and Local Self-Government that he cannot
continue being the Mayor in accordance with the Local Government Act
... [P.J.] ... considers it no sin to stay on ... [in this capacity]
... because he is ... indispensable for ... [the Municipality’s]
... future development and prosperity ...
Why is [P.J.] pushing so hard to remain as the
fictitious Mayor of Babušnica, committing at the same time, as
he is, legal infractions amounting to crimes ... Perhaps he needs the
position of Mayor to defend his personal integrity which has been
seriously threatened by the criminal complaints filed against him,
indicating that he had abused his authority as the Director of a
State-owned company called Lisca in order to acquire enormous
material gain? ... [P.J.] ... well knows that ... [as a former Mayor]
... his position as the Director of ... Lisca, where he is
suspected of having committed certain criminal offences, would also
be seriously jeopardised. He understands that ... [as an ordinary
citizen] ... he would no longer ... [carry any weight] ... with the
local [police chiefs and others] ...
Therefore, ... in his ‘JUL euphoria’, in
line with the slogan “money talks” [para vrti gde
burgija neće] and for his own existential needs, [P.J.] has
continued with his near-insane spending of the money belonging to the
citizens of the Municipality [sumanuto troši
novac građana Opštine] on ... sponsorships ... [and]
... gala luncheons ... not understanding that his time is up and that
his place is in the political dustbin ...”
- In
response to the publication of this article, on 12 September 2002,
the Mayor filed a private criminal action (privatna krivična
tuZba) against the applicant with the Municipal Court in
Babušnica (“the Municipal Court”).
- On
11 June 2003 the Municipal Court found the applicant guilty of
criminal defamation (kleveta) and ordered him to pay a fine in
the amount of 15,000 dinars (“CSD”) plus CSD 11,000 for
costs, which was at that time equivalent to approximately 400 euros
(“EUR”) in all. The fine, however, was suspended and was
not to be enforced unless the applicant committed another crime
within a year of the judgment becoming final.
- In
the operative part of this decision (u izreci presude) only
the following text was found to amount to defamation, namely to be
“untrue” and, as such, “harmful to the honour and
reputation” of the Mayor (Mr P.J.):
“Therefore, ... in his ‘JUL euphoria’,
in line with the slogan “money talks” [para vrti gde
burgija neće] and for his own existential needs, [P.J.] has
continued with his near-insane spending of the money belonging to the
citizens of the Municipality [sumanuto troši
novac građana Opštine] on ... sponsorships ... [and]
... gala luncheons ...”
- In
its reasoning, the court explained that the applicant had failed to
prove the veracity of this statement or even that he had reasonable
grounds to believe that it was true. Further, the use of the term
“near-insane” (sumanuto) was deemed to imply the
Mayor’s mental illness. The court therefore held that the
applicant’s intent was not to inform the public but to belittle
the Mayor. In conclusion, it noted that politicians have a special
duty to communicate with each other and the public appropriately and
stressed that a suspended sentence should “educationally
influence the defendant so as to avoid committing ... similar crimes”
in the future.
- Concerning
the remainder of the impugned article, however, the court ruled that
it was not written with intent to disparage the Mayor and was thus a
legitimate way of expressing one’s political opinion, in
accordance with Article 96 of the Criminal Code (see paragraph 27
below).
- On
8 October 2004 the judgment of the Municipal Court was upheld on
appeal by the District Court in Pirot (“the District Court”)
and thereby became final. The District Court fully accepted the
reasons given by the Municipal Court and added that, below the
article at issue, there had been only the applicant’s name and
surname and no indication that it had been written by the President
of the local branch of the Demo-Christian Party of Serbia.
- On
8 February 2005 the Mayor filed a separate civil complaint for
damages with the Municipal Court, alleging that he had suffered
mental anguish as a result of the publication of the impugned
article. The Mayor sought CSD 500,000 in compensation, which was at
that time equivalent to approximately EUR 6,252.
- On
18 March 2005 the Municipal Court ruled partly in favour of the Mayor
and ordered the applicant to pay CSD 120,000 in compensation,
together with default interest plus costs in the amount of CSD
39,000, which was at that time equivalent to approximately EUR 1,970
in all.
- The
applicant’s argument that the Mayor, being an elected
politician, had to accept criticism and display a greater degree of
tolerance was dismissed, as was his reference to the relevant
international standards (see paragraph 39 below). In so doing, the
Municipal Court found: (i) that the applicant had already been
convicted of defamation within the criminal proceedings; (ii) that
the Mayor could be criticised but that such criticism had to be
“constructive, argued and within the limits of decency”;
(iii) that, in any event, criticism could not consist of untrue
statements which “deeply offend” one’s “honour,
reputation and dignity”; and (iv) that the honour, reputation
and dignity of the Mayor, as an elected official and Director of a
very successful local company, “had more significance than ...
[the honour, reputation and dignity] ... of an ordinary citizen”.
- On
24 May 2005 the District Court rejected the applicant’s appeal,
except for the part concerning costs, which were reduced to CSD
24,200, at that time equivalent to approximately EUR 295. This court,
further, noted that the applicant had relied on, inter alia,
Article 10 of the Convention but then went on to repeat, in
substance, the detailed reasoning of the Municipal Court, as
described above. Finally, the District Court, added, as in the
earlier criminal proceedings, that below the published article there
had only been the applicant’s name and surname and no
indication that it had been written by the President of the local
branch of the Demo-Christian Party of Serbia. In any event, the
statements made by the applicant were untrue and his intent was to
belittle the Mayor, rather than to inform the public or draw the
attention of the authorities “to their obligations”. The
compensation as well as the costs awarded would appear not to have
been paid as yet.
B. Additional facts concerning the newsletter
- Page
1 contained a statement by Mr M.L., at that time a candidate in the
presidential elections supported by a number of allied political
parties, including the Democratic Party and the Demo-Christian Party
of Serbia. Page 1 also contained Mr M.L.’s short biography.
- Page
2 contained an appeal by the Democratic Party. It invited the public
to support the newsletter which was needed, inter alia, in
order to counter the Mayor’s self-promotion in other locally
printed media.
- Page
5 contained an open letter, addressed to the Babušnica
police department, signed by the applicant in his capacity as the
President of the municipal branch of the Demo-Christian Party of
Serbia.
- Page
6 contained photographs and campaign slogans in support of Mr M.L.
- Most
other pages also carried articles concerning various political issues
and the newsletter itself was handed out free of charge.
C. Other relevant facts
- On
23 May 2002 the Ministry of Justice and Local Self-Government
informed the Municipality of Babušnica that, in accordance
with the relevant legislation, a councillor’s mandate in the
Municipal Assembly (odbornički
mandat) must be terminated if the councillor in question is
expelled from the political party on whose list he was elected. The
Ministry explained that the same provisions should also be applied in
the Mayor’s case.
- On
16 September 2002, in a letter sent to the applicant, the Ministry of
Internal Affairs stated that, as of 1996, they had been looking into
a number of complaints indicating that the Mayor had abused his
authority as the Director of a State-owned company called Lisca.
Additional investigation had also been undertaken in response to the
criminal complaints filed by the tax authorities (finansijska
policija) and reports concerning each of these have since been
forwarded to the competent public prosecutors.
- On
18 December 2002 the Office of the Public Prosecutor of the Republic
of Serbia sent a letter to the applicant’s political party.
Therein it stated that in 2000, 2001 and 2002 several criminal
complaints, all of which concerned Lisca, were filed against
the Mayor. Those lodged with the District Public Prosecutor’s
Office in Pirot were still being investigated by the local police
while the Municipal Public Prosecutor’s Office in Babušnica,
having initially dismissed the criminal complaint, had also
subsequently decided to reopen the investigation into the Mayor’s
conduct.
- Finally,
on 19 June 2003 the Ministry of Internal Affairs informed the
applicant’s political party, that all of their findings
concerning Lisca had been sent to the District Public
Prosecutor’s Office in Pirot.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code of the Republic of Serbia (Krivični
zakon Republike Srbije; published in the Official Gazette of the
Socialist Republic of Serbia - OG SRS - nos. 26/77, 28/77, 43/77,
20/79, 24/84, 39/86, 51/87, 6/89, 42/89 and 21/90, as well as in the
Official Gazette of the Republic of Serbia - OG RS - nos. 16/90,
49/92, 23/93, 67/93, 47/94, 17/95, 44/98,
10/02,
11/02 and 80/02)
- The
relevant provisions of this Act read as follows:
Article 92
“Whoever, in relation to another, asserts or
disseminates a falsehood which can damage his [or her] honour or
reputation shall be fined or punished by imprisonment not exceeding
six months.
If an act described in [the above] paragraph has been
committed through the press, via radio or television ... [or
otherwise through the mass media] ... or at a public meeting, the
perpetrator shall be punished by imprisonment not exceeding one year.
...
If the defendant proves his [or her] claims to be true
or if he [or she] proves that there were reasonable grounds to
believe in the veracity of the claims which he [or she] had made or
disseminated, he [or she] shall not be punished for defamation, but
may be punished for the offence of insult ... or the offence of
reproaching someone for the commission of a criminal offence...
Whoever, in relation to another, falsely claims or
disseminates claims to the effect that he [or she] has committed a
crime prosecuted ex officio, shall be punished for defamation
even if there were reasonable grounds to believe in their veracity,
unless such claims have been made or disseminated pursuant to Article
96 § 2 of this Code. The veracity of the claim that someone has
committed a crime prosecuted ex officio may be proved only by
means of a final court judgment and through other means of proof only
if criminal prosecution or a trial are not possible or are legally
precluded.”
Article 96 §§ 1 and 2
“... [No one] ... shall ... be punished for
insulting another person if he [or she] so does in a scientific,
literary or artistic work, a serious critique, in the performance of
his [or her] official duties, his [or her] journalistic profession,
as part of a political or other social activity or in defence of a
right or of a justified interest, if from the manner of his [or her]
expression or other circumstances it transpires that there was no
[underlying] intent to disparage.
In situations referred to above, ... [the defendant] ...
shall not be punished for claiming or disseminating claims that
another person has committed a criminal offence prosecuted ex
officio, even though there is no final judgment to that effect
... , if he [or she] proves that there were reasonable grounds to
believe in the veracity of ... [those claims] ...”
B. Criminal Code of the Federal Republic of Yugoslavia
(Krivični zakon Savezne Republike Jugoslavije; published in the
Official Gazette of the Socialist Federal Republic of Yugoslavia - OG
SFRY - nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90,
45/90 and 54/90, as well as in the Official Gazette of the Federal
Republic of Yugoslavia - OG FRY - nos. 35/92, 37/93, 24/94 and 61/01)
- The
relevant provisions of this Act read as follows:
Article 39 §§ 3 and 4
“If the fine cannot be collected, the court shall
order a day of imprisonment for each 200 dinars of the fine,
providing that the overall term of imprisonment may not exceed six
months.
If the convicted person pays only a part of the fine
[imposed], the rest shall accordingly be converted into imprisonment,
and if the convicted person [subsequently] pays the remainder of the
fine, his [or her] imprisonment shall be discontinued.”
Article 51
“...
[T]he purpose of a suspended sentence ... is that punishment ... for
socially less dangerous acts not be imposed ... when ... it can be
expected that an admonition with a threat of punishment (suspended
sentence) ... will ... [be sufficient to deter the offender] ... from
committing any [other] criminal acts.”
Article 52 § 1
“In handing down a suspended sentence, the court
shall impose punishment on the person who had committed a criminal
act and at the same time order that this punishment shall not be
enforced if the convicted person does not commit another criminal act
for a ... [specified] ... period of time which cannot be less than
one nor more than five years in all (period of suspension) ...”
Article 53 § 4
“In deciding whether to impose a suspended
sentence, the court shall take into account the purpose of [this]
sentence, the personality of the offender, his [or her] conduct prior
to and following the commission of the criminal act, the degree of
his [or her] criminal liability, as well as other circumstances under
which the act has been committed.”
Article 54 §§ 1 and 2
“The court shall revoke the suspended sentence if,
during the period of suspension, the convicted person commits one or
more criminal acts for which he or she is sentenced to imprisonment
for a term of or exceeding two years.
If, during the period of suspension, the convicted
person commits one or more criminal acts and is sentenced to
imprisonment for a term of less than two years or to a fine, the
court shall, upon consideration of all the circumstances ...
including the similarity of the crimes committed ... decide whether
to revoke the suspended sentence ...”
Article 93 § 2
“A suspended sentence shall be expunged one year
following the date of expiry of the period of suspension, if the
convicted person does not commit another criminal act during this
time.”
Article 94 § 3
“When a conviction has been expunged, information
about the conviction may ... be given ... [only] ... to the courts,
the public prosecution service and the police in connection with an
ongoing criminal case against the person ... [concerned] ... ”
C. Criminal Procedure Code (Zakonik o krivičnom
postupku, published in OG FRY nos. 70/01 and 68/02)
- Article
3 § 1 enshrines the defendant’s right to be presumed
innocent until proved guilty by a final decision of a court of law.
- Article
419 provides, inter alia, that the competent public prosecutor
“may” (moZe)
file a Request for the Protection of Legality (zahtev za zaštitu
zakonitosti) against a “final judicial decision”, on
behalf of or against the defendant, if the relevant substantive
and/or procedural “law has been breached” (ako je
povređen zakon).
- On
the basis of the above request, under Articles 420, 425 and 426, the
Supreme Court may uphold the conviction at issue or reverse it. It
may also quash the impugned judgment, in its entirety or partly, and
order a re-trial before the lower courts. If the Supreme Court,
however, finds that there has been a violation of the law in favour
of the defendant, it shall only be authorised to declare so but shall
leave the final judgment standing.
D. Obligations Act (Zakon o obligacionim odnosima;
published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as
in OG FRY no. 31/93)
- Under
Articles 199 and 200, inter alia, anyone who has suffered
mental anguish as a consequence of a breach of his or her honour or
reputation may, depending on its duration and intensity, sue for
financial compensation before the civil courts and, in addition,
request other forms of redress “which may be capable” of
affording adequate non-pecuniary satisfaction.
E. Civil Procedure Act 1977 (Zakon o parničnom
postupku; published in OG SFRY nos. 4/77, 36/77, 6/80, 36/80, 43/82,
72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91, as well as
in OG FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02)
- Articles
35-40 provided general rules as regards the means of establishing the
value of a plaintiff’s civil claim.
- Article
382 § 2 provided, specifically, that an appeal on points of law
(revizija) was “not admissible” in pecuniary
disputes where the “value of the part of the final judgment
being contested” did “not exceed 300,000 ... dinars ...”.
- In
accordance with Articles 383 and 394-397, inter alia, the
Supreme Court could have, had it accepted an appeal on points of law
lodged by one of the parties concerned, overturned the impugned
judgment or quashed it and ordered a re-trial before the lower
courts.
F. Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in OG RS no. 125/04)
- Article
13 provides that a civil court is bound by a final decision of a
criminal court in respect of whether a crime was committed, as well
as concerning the criminal liability of the person convicted.
- This
Act entered into force on 23 February 2005, thereby repealing the
Civil Procedure Act 1977. Article 491 § 4 of the Civil Procedure
Act 2004, however, states that an appeal on points of law (revizija)
shall be considered in accordance with the relevant provisions of the
Civil Procedure Act 1977, if the proceedings at issue were instituted
prior to 23 February 2005.
G. The Court of Serbia and Montenegro and the status of
the State Union of Serbia and Montenegro
- The
relevant provisions concerning the Court of Serbia and Montenegro and
the status of the State Union of Serbia and Montenegro are set out in
the Matijašević
v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25,
19 September 2006).
III. RELEVANT INTERNATIONAL STANDARDS AND FINDINGS REFERRED TO
BY THE APPLICANT
A. Declaration
on the freedom of political debate in the media, adopted
by the Committee of Ministers of the Council of Europe on 12 February
2004 at the 872nd meeting
of the Ministers’ Deputies
- The
relevant provisions of this Declaration read as follows:
III. Public debate and scrutiny over
political figures
“Political figures have decided to appeal to the
confidence of the public and accepted to subject themselves to public
political debate and are therefore subject to close public scrutiny
and potentially robust and strong public criticism through the media
over the way in which they have carried out or carry out their
functions.”
VI. Reputation of political figures and
public officials
“Political figures should not enjoy greater
protection of their reputation and other rights than other
individuals, and thus more severe sanctions should not be pronounced
under domestic law against the media where the latter criticise
political figures. This principle also applies to public officials;
derogations should only be permissible where they are strictly
necessary to enable public officials to exercise their functions in a
proper manner.”
B. Concluding Observations of the United Nations Human
Rights Committee: Serbia and Montenegro, 12 August 2004,
CCPR/CO/81/SEMO
- Paragraph
22 of these Observations reads as follows:
“The Committee is concerned at the high number of
proceedings initiated against journalists for media-related offences,
in particular as a result of complaints filed by political
personalities who feel that they have been subject to defamation
because of their functions.
The State party, in its application of the law on
criminal defamation, should take into consideration on the one hand
the principle that the limits for acceptable criticism for public
figures are wider than for private individuals, and on the other hand
the provisions ... which do not allow restrictions to freedom of
expression for political purposes.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained under Article 10 about the breach of his right
to freedom of expression given his criminal conviction and the
subsequent civil judgment rendered against him in respect of the same
published article.
- Article
10 of the Convention, in the relevant part, reads as follows:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers ...”
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
protection of the reputation or rights of others ...”
A. Admissibility
1. Compatibility ratione temporis
- The
Government argued that the applicant’s complaints were
incompatible with the provisions of the Convention ratione
temporis. In particular, he had been found guilty and sentenced
by the Municipal Court on 11 June 2003 and the respondent State had
ratified the Convention on 3 March 2004. The “alleged
interference” with the applicant’s freedom of expression
had thus occurred prior to the ratification while the subsequent
criminal and civil judgments merely allowed for its subsistence
thereafter (see paragraphs 9, 13, 15 and 17 above).
- The
applicant stated that his complaints were within the Court’s
competence ratione temporis because the actual interference
with his rights had occurred not on 11 June 2003, when he was
initially convicted by the Municipal Court, but on 8 October 2004
when the District Court upheld this conviction and it thereby became
both final and legally binding. To hold otherwise would amount to a
breach of his right to be presumed innocent until proved guilty in
accordance with law (see paragraph 29 above). Finally, as regards the
civil proceedings, the applicant recalled that they took place after
the respondent State’s ratification of the Convention on 3
March 2004.
- The
Court considers that the principal facts of the present case, namely
the respondent State’s interference with the applicant’s
freedom of expression, lay in the finality of his criminal conviction
and in the adoption of the final civil court judgment against him,
all of which occurred after ratification. Indeed, it was then that
the applicant became formally obliged to pay the civil compensation
awarded to the Mayor and liable to have his suspended criminal
sentence converted into an enforceable fine (see Zana v. Turkey,
judgment of 25 November 1997, Reports of Judgments and Decisions
1997 VII, §§ 41 and 42; see also paragraphs 28 and 29
above). The applicant’s complaints cannot therefore be declared
incompatible ratione temporis under Article 35 § 3 of the
Convention. Accordingly, the Government’s objections in this
respect must be dismissed.
2. Exhaustion of domestic remedies
(a) Arguments of the parties
- The Government submitted that the applicant had not
exhausted all available and effective domestic remedies. In the first
place, as regards the criminal proceedings, he had failed to urge the
public prosecutor to file a Request for the Protection of Legality
(an “RPL”) on his behalf (see paragraphs 30 and 31
above). Secondly, concerning the civil proceedings, he had not filed
an appeal on points of law (see paragraphs 34 and 35 above). Lastly,
the applicant had failed to make use of the complaint procedure
before the Court of Serbia and Montenegro (see paragraph 38 above).
- The
applicant maintained that all of the above-mentioned remedies were
ineffective, within the meaning of the Court’s established
case-law under Article 35 § 1 of the Convention. In particular,
an RPL could only have been filed by the competent public prosecutor,
irrespective of any informal initiatives to this effect. The
applicant thus had no direct access to this avenue of redress.
Further, an appeal on points of law was also not available since the
final civil court judgment ordered the applicant to pay less than CSD
300,000 in compensation. Finally, the applicant argued that a
complaint with the Court of Serbia and Montenegro was “utterly
ineffective” and, as such, clearly not necessary to exhaust.
- The
Government replied that the public prosecutor would not have had
“total discretion” on whether to file an RPL on behalf of
the applicant. On the contrary, he would have been obliged to do so
if he thought that there had been a breach of the relevant domestic
legislation or of the Convention, it being an integral part of the
Serbian legal system. The Government also noted that the value of the
Mayor’s civil claim was CSD 500,000, which is why the applicant
could and should have filed an appeal on points of law with the
Supreme Court.
- The
applicant stated that it was not the value of the Mayor’s
initial claim but only the amount which the applicant was ordered to
pay (namely, CSD 120,000) which was decisive as regards the
admissibility of the said appeal. He also conceded that an RPL could
have provided him with effective redress, but reaffirmed that it was
entirely up to the public prosecutor to decide whether to file it in
the first place.
- The
Government pointed out that mere doubt as to the effectiveness of a
given domestic remedy could not absolve the applicant from pursuing
it under Article 35 § 1 of the Convention.
(b) Relevant principles
- The
Court recalls that, according to its established case-law, the
purpose of the domestic remedies rule contained in Article 35
§ 1 of the Convention is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
before they are submitted to the Court. However, the only remedies to
be exhausted are those which are effective. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one, available in theory and in practice at
the relevant time (see, inter alia, Vernillo v. France,
judgment of 20 February 1991, Series A no. 198, pp. 11–12,
§ 27, and Dalia v. France, judgment of 19 February
1998, Reports of Judgments and Decisions 1998-I, pp. 87-88,
§ 38). Once this burden of proof has been satisfied, it
falls to the applicant to establish that the remedy advanced by the
Government was in fact exhausted, or was for some reason inadequate
and ineffective in the particular circumstances of the case, or that
there existed special circumstances absolving him or her from this
requirement (see Dankevich v. Ukraine, no. 40679/98, §
107, 29 April 2003).
- The
Court notes that the application of this rule must make due allowance
for the context. Accordingly, it has recognised that Article 35
§ 1 must be applied with some degree of flexibility and without
excessive formalism (see the Akdivar and Others v. Turkey
judgment of 16 September 1996, Reports 1996-IV, p. 1211, §
69).
- Finally,
the Court reiterates that an effective domestic remedy must form a
part of the normal process of redress and cannot be of a
discretionary character. The applicant must, therefore, be able to
initiate the proceedings directly, without having to rely on the
benevolence of a public official (see, mutatis mutandis,
Malfatti v. the Slovak Republic, no. 38855/97,
Commission decision of 1 July 1998, and
V.S. v. the Slovak Republic, no. 30894/96,
Commission decision of 22 October 1997; see,
also, X v. Ireland, no. 9136/80, Commission decision of
10 July 1981, Decisions and Reports (DR). 26, p. 242).
(c) The Court’s assessment
- The
Court finds that it was only the public prosecutor who could have
filed an RPL on behalf of the applicant and, moreover, that the
former had full discretion in respect of whether to do so. While the
applicant could have requested such action, he certainly had no right
under law to make use of this remedy personally (see paragraph 30
above). An RPL was thus ineffective as understood by Article 35 §
1 of the Convention.
- Further,
notwithstanding the Government’s submissions to the contrary,
the text of Article 382 § 2 of the Civil Procedure Code 1977 was
clear: an appeal on points of law was not allowed in pecuniary
disputes where “the value of the part of the final judgment
being contested” did “not exceed 300,000 ... dinars”.
Since the final civil court judgment ordered the applicant to pay CSD
120,000, it is exactly this amount which would have been contested
(see paragraph 34 above). The said appeal on points of law was
therefore also not available to the applicant in the particular
circumstances of the present case.
- Lastly,
concerning the Government’s submission that the applicant
should have filed a complaint with the Court of Serbia and
Montenegro, the Court recalls that it has already held that this
particular remedy was unavailable until 15 July 2005 and, further,
that it remained ineffective until the break up of the State Union of
Serbia and Montenegro (see Matijašević v. Serbia,
cited above, §§ 34-37). The Court sees no reason to depart
in the present case from this finding and concludes, therefore, that
the applicant was not obliged to exhaust this avenue of redress.
- In
view of the above, the Court finds that the applicant’s
complaints cannot be declared inadmissible for non-exhaustion of
domestic remedies under Article 35 § 1 of the Convention.
Accordingly, the Government’s objections in this respect must
be dismissed.
3. Conclusion
- The
Court considers that the applicant’s complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and finds no other ground to declare them
inadmissible. The complaints must therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
Government endorsed, at length, the conclusions as well as the
reasoning of the domestic courts and emphasised that the applicant’s
claims were statements of fact, rather than value judgments, which
were not corroborated by relevant evidence.
- The
Government pointed out that the Mayor was never convicted or, indeed,
even charged in spite of the fact that several criminal complaints
had been filed against him, that the applicant’s sentence was
minimal, that the Mayor had the right to have his reputation
protected, both as a private person and as a public figure, and,
lastly, that the outcome of the subsequent civil case was based on
the applicant’s prior criminal conviction.
- The
Government thus concluded that the interference with the applicant’s
freedom of expression was “prescribed by law”, “necessary
in a democratic society”, and undertaken for the protection of
the “reputation or rights of others”.
- The
applicant submitted that the relevant criminal and civil judgments
undoubtedly constituted an interference “by a public authority”
with his right to freedom of expression, as guaranteed by Article 10
of the Convention. This interference, however, was not “in
accordance with the law” because the domestic criminal courts
had refused to treat all of the applicant’s statements as an
acceptable expression of his political opinion and the final civil
court judgment had itself been based on his criminal conviction. In
the alternative, however, the applicant argued that the said
interference was disproportionate.
- He
thus noted that all of his statements were clearly political. First,
he was and still is the President of the local branch of the
Demo-Christian Party of Serbia, as well as a member of its Central
Board. Secondly, the publication itself was an official newsletter of
the local branch of the Democratic Party and its purpose was to serve
and promote the activities of this party and of several other allied
political parties in the upcoming presidential and municipal
elections. Thirdly, despite the absence of the applicant’s
political function below the impugned article, it was specifically
stated in other parts of the newsletter. Fourthly, it was
“improbable” that only one of the applicant’s
statements made in the same article could be deemed as falling
outside of the realm of political expression.
- The
applicant recalled that the Mayor was a public official and a
political figure and that, as such, he had to accept criticism and
display a greater degree of tolerance. The applicant’s
arguments to this effect, however, were disregarded by the domestic
courts which ultimately found exactly the opposite.
- The
applicant maintained that his intent was not to defame the Mayor. The
word “sumanuto” was not used as an adjective, to
describe the Mayor’s mental State, but rather as an adverb, to
explain the manner in which the Mayor had been spending the money of
the local taxpayers. In other words, the applicant did not claim that
the Mayor was insane but that he had been spending public money
insanely, in a particularly wasteful and irresponsible manner. The
word “sumanuto” was thus an expression of the
applicant’s value judgment and, as such, not susceptible of
proof.
- The
applicant stated that he had reasonable grounds for believing that
his other statements were true. In particular, the Mayor was under an
ongoing police investigation and there was no requirement under
domestic law to prove the Mayor’s alleged wrongdoing by means
of a final criminal conviction.
- The
applicant submitted that the restriction on his freedom of expression
was significant. He was convicted and fined within a criminal case
and ordered to pay damages in a subsequent civil suit. Indeed, what
really mattered was not that his fine was suspended, but rather the
fact that he had been convicted at all. The applicant has therefore
been stigmatised as a person with a criminal record and the suspended
sentence itself could have been converted into an enforceable fine in
accordance with the relevant criminal legislation.
- The
applicant argued that the domestic courts simply did not adduce
sufficient reasons to justify their decisions. Indeed, their
observations to the effect that politicians were entitled to more
protection of their honour and dignity than ordinary people only
added insult to injury.
- Finally,
the applicant stated that, even assuming that the interference in
question was in accordance with the law and undertaken in pursuit of
a legitimate aim, namely “the protection of the reputation or
rights of others”, it was clearly not necessary in a democratic
society.
- The
Government reaffirmed their previous arguments and added that the
newsletter had covered various local issues, including those which
could be described as political.
- Even
assuming, however, that the applicant’s statements were
political, this could not, in and of itself, excuse his insulting
language, which had clearly exceeded the limits of free expression.
Indeed, even if the applicant’s translation of the word
“sumanuto” is accepted, the Mayor was accused of
particularly serious transgressions, amounting to crimes, without
adequate evidence having been offered.
- Finally,
the Government noted that the absence of the applicant’s
political function in his signature below the said article raised
issues in terms of his underlying motivation, that there were no
reasonable grounds for the applicant to believe that his statements
were true, and that, in any event, the final civil court judgment had
yet to be enforced.
2. Relevant principles
- As
the Court has often observed, the freedom of expression enshrined in
Article 10 constitutes one of the essential foundations of a
democratic society. Subject to paragraph 2, it is applicable not only
to “information” or “ideas” that are
favourably received or regarded as inoffensive, but also to those
that offend, shock or disturb (see, among many other authorities, the
Castells v. Spain judgment of 23 April 1992, Series A no. 236,
p. 22, § 42, and the Vogt v. Germany judgment of 26
September 1995, Series A no. 323, p. 25, § 52).
- The
Court has also repeatedly upheld the right to impart, in good faith,
information on matters of public interest, even where this involved
damaging statements about private individuals (see, mutatis
mutandis, Bladet Tromsø and Stensaas v. Norway [GC],
no. 21980/93, ECHR 1999 III), and has emphasised that the limits
of acceptable criticism are still wider where the target is a
politician (see Oberschlick v. Austria (no. 1), judgment of 23
May 1991, Series A no. 204, § 59). While precious for all,
freedom of expression is particularly important for political parties
and their active members (see Incal v. Turkey, judgment of 9
June 1998, Reports 1998 IV, § 46), as well as during
election campaigns when opinions and information of all kinds should
be permitted to circulate freely (see Bowman v. the United
Kingdom, judgment of 19 February 1998, Reports 1998 I,
§ 42).
- The
Court recalls that account also has to be taken of whether the
impugned expressions concerned one’s private life or one’s
behaviour in an official capacity (see Dalban v. Romania [GC],
no. 28114/95, § 50, ECHR 1999 VI). Finally, the Court notes
that the nature and severity of the penalty imposed, as well as the
“relevance” and “sufficiency” of the national
courts’ reasoning, are matters of particular gravity in
assessing the proportionality of the interference under Article 10 §
2 (see Cumpǎnǎ and Mazǎre v. Romania [GC], no.
33348/96, § 111, ECHR 2004, and Zana v. Turkey, cited
above, § 51, respectively) and reiterates that Governments
should always display restraint in resorting to criminal sanctions,
particularly where there are other means of redress available (see
Castells v. Spain, cited above, § 46).
3. The Court’s assessment
- The
final criminal and civil judgments at issue undoubtedly constituted
an interference with the applicant’s right to freedom of
expression. Despite the applicant’s submissions to the
contrary, this interference was clearly based on the domestic courts’
interpretation of the sufficiently precise and foreseeable domestic
legislation and was, as such, “prescribed by law” within
the meaning of Article 10 § 2 (see paragraphs 27 and 32 above).
Finally, the said judgments were adopted in pursuit of a legitimate
aim, namely “for the protection of the reputation” of
another. What remains to be resolved, therefore, is whether they were
“necessary in a democratic society”, or, in other words,
whether the criminal conviction and the compensation awarded were
proportionate to the legitimate aim which was being pursued.
- In
this respect, the Court notes that the applicant had clearly written
the impugned article in the course of an ongoing election campaign
and in his capacity as a politician, notwithstanding the Government’s
submission concerning the specifics of his signature (see paragraph
72 and paragraphs 18-22 above). The target of the applicant’s
criticism was the Mayor, himself a public figure, and the word
“sumanuto” was obviously not used to describe the
latter’s mental state but rather to explain the manner in which
he had allegedly been spending the money of the local taxpayers (see
paragraphs 10 and 65 above). Although the applicant was unable to
prove before the domestic courts that his other claims were true,
even assuming that they were all statements of fact and, as such,
susceptible of proof, he clearly had some reason to believe that the
Mayor might have been involved in criminal activity and, also, that
his tenure was unlawful (see paragraphs 23-26 above). In any event,
although the applicant’s article contained some strong
language, it was not a gratuitous personal attack and focused on
issues of public interest rather than the Mayor’s private life,
which transpired from the article’s content, its overall tone
as well as the context (see paragraphs 7, 10, and 18-22 above).
Finally, the reasoning of the criminal and civil courts, in ruling
against the applicant, was thus “relevant” when they held
that the reputation of the Mayor had been affected. It was not,
however, “sufficient” given the amount of compensation
and costs awarded (equivalent to approximately eight average monthly
salaries in Serbia at the relevant time) as well as the suspended
fine which could, under certain circumstances, not only have been
revoked but could also have been converted into an effective prison
term (see paragraphs 9 and 15 above; see also paragraph 28 above, in
particular Articles 54 and 39, respectively, quoted therein).
- In
view of the above and especially bearing in mind the seriousness of
the criminal sanctions involved, as well as the domestic courts’
dubious reasoning to the effect that the honour, reputation and
dignity of the Mayor “had more significance than ... [the
honour, reputation and dignity] ... of an ordinary citizen”
(see paragraphs 39, 75 and 16 above, respectively), the Court finds
that the interference in question was not necessary in a democratic
society. Accordingly, there has been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- In
his initial application to the Court, the applicant also relied on
Article 6 but, in so doing, made exactly the same complaint as the
one already examined under Article 10. In fact, having failed to
refer to any specific procedural issues, it would appear that the
applicant considered that there had been an “automatic”
breach of his right to a fair hearing based on the fact that he was
convicted of criminal defamation and subsequently ordered to pay
damages. Having regard to its finding in respect of Article 10, the
Court declares this complaint admissible but considers that it does
not require a separate examination on the merits (see, mutatis
mutandis, Perna v. Italy [GC], no. 48898/99,
§§ 33-34, ECHR 2003 V).
- On
15 May 2006, for the first time, the applicant also complained about
the impartiality of the presiding judge of the Municipal Court in the
civil suit. The Court, however, notes that the final domestic
decision in those proceedings had been rendered on 24 May 2005 and
that the applicant’s complaint was introduced more than 6
months later. Accordingly, it is out of time and, therefore,
inadmissible under Article 35 §§ 1 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed non-pecuniary damage at the Court’s
discretion.
- The
Government contested that claim. They added, however, that should the
Court find a violation of the Convention any financial compensation
awarded should be consistent with the Court’s jurisprudence in
other similar cases.
- The
Court considers that the applicant must have suffered non-pecuniary
harm as a result of the breach of his freedom of expression, which is
why a finding of a violation alone would not constitute sufficient
just satisfaction within the meaning of Article 41.
- Having
regard to the nature of the violation, the amounts awarded in
comparable cases (see, mutatis mutandis, Dalban v.
Romania [GC], cited above, § 59) and on the basis of
equity, as required by Article 41, the Court awards the applicant EUR
3,000 under this head.
B. Costs and expenses
- The
applicant claimed EUR 230 for the costs incurred before the domestic
criminal courts. He explained that this was merely 50% of what a
local lawyer would have charged him, had he retained one.
- The applicant, who had received legal aid from the
Council of Europe in connection with the presentation of his case,
claimed another EUR 1,200 for the costs and expenses incurred in the
proceedings before this Court. In this respect he offered an itemised
calculation.
- The
Government contested both claims. In particular, as regards the
former, they noted that the applicant, having failed to retain a
lawyer, could not have incurred any legal costs, while, as regards
the latter, the expenses sought were excessive, particularly in view
of the fact that the applicant could have sent his submissions to the
Court by regular mail rather than by means of a costly overnight
courier.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
- Regard
being had to all of the information in its possession, the above
criteria and the parties’ submissions, the Court rejects the
applicant’s claim for the costs allegedly incurred within the
domestic criminal proceedings. However, it considers it reasonable,
given the amount granted under the Council of Europe’s legal
aid scheme, to award him the additional sum of EUR 250 for the
proceedings before this Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints under
Articles 10 and 6 of the Convention, concerning the applicant’s
freedom of expression, admissible and the remainder of the
application inadmissible;
- Holds by 5 votes to 2 that there has been a
violation of Article 10 of the Convention;
- Holds unanimously that it is not necessary to
examine separately the complaint under Article 6 of the Convention,
as regards the applicant’s freedom of expression;
- Holds by 5 votes to 2
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage and EUR 250
(two hundred and fifty euros) for the costs and expenses incurred in
the proceedings before this Court, which sums are to be converted
into the national currency of the respondent State at the rate
applicable on the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F.
TULKENS
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following opinions are annexed to
this judgment:
(a) partly
dissenting opinion of opinion of Mr Zagrebelsky;
(b) partly
dissenting opinion of Mr Kreća.
F.T.
S.D.
PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY
I am
unable to join the majority in finding a violation of Article 10 of
the Convention in this case. The reason for my dissent relates to the
content of the press article at issue. As clearly shown in paragraphs
10 and 11 of the judgment, the domestic court found defamatory only
those passages in which the applicant wrote that the Mayor of
Babušnica had spent “money belonging to the citizens of
the Municipality”, “for his own existential needs”.
The domestic court found that this was untrue and that the applicant
had failed to prove that he had reasonable grounds to believe that it
was true.
It is
clear to my mind that the Court’s case-law on “value
judgments” does not apply here and that the Court has no reason
to call into question the findings of the domestic courts.
I
would add that, certainly, the limits of acceptable criticism are
very wide when the target is a political figure and I recognise that
this is particularly true during an election campaign. But this
principle cannot apply to untrue statements of fact. Moreover, I note
that the period of an election campaign is a very sensitive one also
because it is normally impossible for defamation victims to react
quickly enough in order to counter false allegations effectively.
For
these reasons I am of the opinion that the domestic judgments and the
consequent criminal and civil sanctions were not in breach of Article
10 of the Convention.
PARTLY DISSENTING OPINION OF JUDGE KREĆA
I
much regret that I am unable to associate myself with the conclusions
at which the majority have arrived in the merits part of the present
judgment and I avail myself of the right to set out the reasons for
my dissent.
My
vote regarding the issue of admissibility of the complaint reflects
an acknowledgment of the limited competence of the Chamber in
relation to the established jurisprudence of the Court, although it
seems legally vulnerable as regards the approach to the rule of
exhaustion of domestic remedies.
The issue of effectiveness of domestic remedies: general
observations
- Viewed
ab intra, in the light of the Court’s jurisprudence, the
standard of effectiveness established in casu appears to be a
proper one.
If,
however, the standard is looked upon ab extra, taking into
account the “generally recognised rules of international law”
referred to in Article 35 § 1 of the Convention as well as
proper legal considerations, the matter is not free of legal
difficulties.
- It
is doubtful whether “generally recognised rules of
international law” on the matter exist at all.
As
John Dugard, Special Rapporteur of the International Law Commission,
finds in his “Third Report on Diplomatic Protection”, in
the part relating to local remedies:
“Article 22 of the draft articles on State
responsibility ... required the exhaustion only of those remedies
which are ‘effective‘. Although this principle is
accepted, its precise formulation is subject to dispute ...”
(Third Report on Diplomatic Protection by Mr John Dugard, Special
Rapporteur, UN General Assembly, Doc. A/CN.4/523, § 23 –
emphasis added)
Article
14 of the draft articles proposed in the report, summarising judicial
decisions, legal doctrine, State practice and codifications of the
local remedy rule, puts forward three standards of effectiveness in
terms of exceptions to the general principle that local remedies must
be exhausted:
“Local remedies do not need to be exhausted where:
(a) the local remedies:
- are obviously futile (option 1);
- offer no reasonable prospect of success (option 2);
- provide no reasonable possibility of an effective
remedy (option 3).”
The Court’s jurisprudence is clearly inclined to the standard
of “reasonable prospect of success” (see, for example,
Retimag v. the Federal Republic of Germany, no. 712/60,
Commission decision of 16 December 1961, Yearbook 4, p. 385 at p.
400, and X, Y and Z v. the United Kingdom, nos. 8022/77
and 8027/77, Commission decision of 8 December 1979, Decision and
Reports 18, p. 66 at p. 74), which, in terms of an exception to the
rule of exhaustion of all domestic remedies, is less demanding than
that of “obvious futility”, which requires “evidence
not only that there was no reasonable prospect of the local remedy
succeeding, but that it was obviously and manifestly clear that the
local remedy would fail” (Third Report, cited above, §
31). The standard of “reasonable possibility of an effective
remedy” occupies an intermediate position.
In
concreto, it is of interest to note that “All enjoy some
support among the authorities” (ibid., § 20) as well as in
the jurisprudence of international courts and tribunals (see, inter
alia, Finnish Ships Arbitration case (1934), 3 UNRIAA,
p. 1504; Ambatilos claim (1956), pp. 119-20;
Panevezys-Saldutiskis Railway case, 1939, PCIJ, Series A/B,
no. 76, p. 19; and ELSI case, ICJ Reports 1989, p. 14
at pp. 46-47).
It
appears, therefore, that there do not exist in international law
generally recognised rules as regards the standard of effectiveness
of a domestic remedy in terms of a “virtually uniform practice”
expressing a general recognition that a rule of law is involved
(North Sea Continental Shelf cases, ICJ Reports 1969, §
74).
The
matter is far from being irrelevant, since Article 35 § 1
provides that “the Court may only deal with the matter after
all domestic remedies have been exhausted, according to the
generally recognised rules of international law” (emphasis
added).
- The
jurisprudence of the Court breaks down the standard of effectiveness
into three separate conditions: availability in terms of the
individual right of the alleged victim; sufficiency; and
effectiveness.
A
couple of observations may be advanced in that regard, apart from the
tautological element of this approach.
Primo,
considering that the Convention and the generally recognised rules of
international law operate only with the effectiveness of domestic
remedies, and bearing in mind the plain and natural meaning of the
word “effectiveness”, it transpires that such a breakdown
may have a methodological but not a normative meaning. For if
“effectiveness” implies being productive, achieving a
result, then, obviously, availability or accessibility is but an
element of effectiveness as such. Moreover, the element that is in
the essence of the notion of “effectiveness” has a
technical and not a substantive meaning, since a domestic remedy that
is available in terms of an individual right of the alleged victim is
not necessarily an effective one. For instance, a domestic remedy may
be available as an individual right but not an effective one if, for
example, the courts of the respondent State do not have the
competence to afford an adequate remedy to the alleged victim.
Secundo,
in the Court’s jurisprudence, however, availability of the
domestic remedy in terms of an individual right of the alleged victim
is, as a rule, treated as a separate and autonomous requirement of
effectiveness. Such an approach, justifiable from the standpoint of a
quicker handling of cases submitted to the Court for adjudication,
may come into conflict with the proper administration of justice in
substantive terms. It does not appear to be in harmony with the
wording of Article 13 of the Convention and with the proper legal
considerations deriving from it.
Article
13 of the Convention provides for the “right to an effective
remedy”. Consequently, the quality “effective” is,
on the basis of the Convention, the only autonomous condition as
regards domestic remedies. It is, of course, understandable that in
the interpretation and application of the provision ad casum,
the Court is in a position to examine constitutive elements,
including availability, within the framework of effectiveness as a
normative requirement. But the treatment of availability as a
separate and independent requirement is one thing, and the assessment
of availability in the context of the constitutive elements of
effectiveness as a whole is another. For it is unclear why the
absence of direct and individual access to the domestic courts would
ipso facto and automatically disqualify the domestic remedy as
effective if there exists a possibility of indirect access through
government, or even judicial, authorities and the remedy, as such, is
essentially capable of enabling redress.
Tertio,
even in the case of an ab intra approach to the effectiveness
of domestic remedies, availability in terms of an individual right
need not be of an absolute character.
- It
appears that the interpretation according to which “the rule of
exhaustion of domestic remedies must be applied with some degree of
flexibility and without excessive formalism” (see, inter
alia, Azinas v. Cyprus [GC], no. 56679/00, § 38,
ECHR 2004-III, and İlhan v. Turkey [GC], no. 22277/93, §
51, ECHR 2000-III) has acquired the characteristic of a
well-established principle in the jurisprudence of the Court.
Expressed
in general terms, this principle implies that its effect is reflected
in two ways. On the one hand, as far as the Court’s
jurisprudence is concerned, it should relate to a broader
interpretation of possible exceptions to the rule of exhaustion of
all domestic remedies; on the other, it relates to the
characterisation as effective remedies, for the purposes of Article
13 and Article 35 § 1 of the Convention, of those domestic
remedies provided for in the domestic law of the Contracting Parties
which, albeit with certain shortcomings in relation to the strict
interpretation resulting from the jurisprudence of the Court, are
essentially capable of providing effective redress for the violation
alleged.
If
the flexibility approach were to be understood as operating only in
one direction – that is, a broader interpretation of exceptions
to the rule of exhaustion of all domestic remedies – then the
observation that “the European Court has interpreted the
exhaustion rule in a way that favours” the alleged victim (see
Sudre, Droit européen et international des droits de
l’homme, PUF, 2003, p. 538) gains additional strength.
- The
nature of domestic remedies supports such an approach.
Domestic
remedies are, by their nature, procedural means that do not touch
upon the actual breach of the Convention committed, having no per
se juridical effect either on the existence of the unlawful act
or on responsibility arising out of it (see, for example, Phosphates
in Morocco case, PCIJ, Series A/B, no. 74, p. 28).
The
function of domestic remedies is to permit the Contracting Party to
discharge its responsibilities by delivering justice in its own way
within the context of the obligations assumed under the Convention.
The Contracting Party does this within its legal system as a totality
of substantive and procedural rules. Unlike the substantive rules
which the Contracting Party is bound, in accordance with its
constitutional solution as regards the relationship between
international and internal law, to make effective in foro
domestico, the Convention has not established either the model or
the kind of procedures available to the alleged victim with a view to
the protection of substantive rights and freedoms guaranteed to it.
Consequently,
the right of domestic remedies should be treated as a kind of
self-contained legal structure within the domestic law of the
Contracting Party, subject only to the condition of effectiveness as
established by Article 35 § 1 of the Convention.
Specific observations as regards the request for protection of
legality
- In
respect of the request for the protection of legality as a possible
remedy, the position of the majority might be summarised as follows:
the remedy is “ineffective as understood by Article 35 § 1
of the Convention” since the public prosecutor had “full
discretion in respect of whether” to submit the request and the
applicant “had no right under the law to make use of
this remedy personally” (see paragraph 54 of the judgment).
In
fact, the absence of direct and personal availability of this avenue
of redress is seen as its ineffectiveness. Such an approach may
appear to be inflexible and burdened with excessive formalism in the
circumstances of the case.
Availability,
as a relevant, primarily technical element of effectiveness, can
hardly be its substitute or assume the meaning of effectiveness in
its full scope. The standard of effectiveness, in addition to the
technical element of availability, is also characterised by its
substantive capability of affording redress in respect of the
breaches alleged. In the assessment of the specific weight of these
two elements of the standard of effectiveness, it is unclear why the
absence of direct availability would a priori rule out the
possible effectiveness of the specific remedy if the remedy is
indirectly available through legal acts which are directly associated
with or which derive from the acts of the alleged victim and relate
to a remedy substantially capable of affording redress. A request for
the protection of legality can hardly be said to lack this capability
if, acting on the request, the Supreme Court may reverse a “final
judicial decision” or quash it in its entirety or partly.
The
basis for the disqualification of a request for the protection of
legality in casu has been found in the fact that the public
prosecutor “had full discretion” in respect of whether to
submit a request when asked to do so by the applicant (see paragraph
54 of the judgment), expressing a more general position that “an
effective domestic remedy cannot be of a discretionary character”
(paragraph 53).
It is
a fact that the public prosecutor is not, on the basis of the law,
bound by a corresponding request by the applicant and that,
therefore, it can be said that he or she possesses discretionary
power. The key question in the concrete context seems, however, to be
the nature of the discretionary power. In concreto, we are not
dealing here with discretio generalis, but rather with
discretio legalis in terms of discretion limited by cogent
legal considerations emanating from the law in force that regulate
the acts of the public prosecutor as regards a request for the
protection of legality. Renowned commentators maintain that Article
419 requires that the public prosecutor “must submit (a
request) if the request is to produce changes of practical
significance in favour of the accused” (see, for instance,
Tihomir Vasiljević, Momčilo Grubač, Comments on the
Criminal Procedure Code, str. 744). Consequently, it appears that
the request for the protection of legality provided the applicant
with a reasonable possibility of obtaining an effective remedy,
bearing in mind that, as Sir Gerald Fitzmaurice pointed out, “what
there must be a reasonable possibility of is the existence of
a possible effective remedy, and that the mere fact that there is no
reasonable possibility of the claimant obtaining that remedy
... does not constitute the type of absence of reasonable possibility
which will displace the local remedies rule” (G. Fitzmaurice,
‘Hersch Lauterpacht – The Scholar as Judge’ (1961),
37 BYIL, p. 1 at p. 60).
- As
the direct availability of a domestic remedy in terms of an
individual right of the applicant constitutes only one element of its
effectiveness, it seems improper to treat it as a self-contained
basis for the disqualification of a concrete domestic remedy as being
ineffective.
Availability,
direct or indirect, should first be tested within the broader frame
of the remedy’s substantive capacity to provide adequate
redress as the important element, although this need not be of
decisive importance in each particular case.
Conversely,
it is difficult to escape a step in the direction of excessive
formalism. In the circumstances surrounding the case at hand, this
can be demonstrated by a hypothesis.
If,
under the law of the respondent State, the request for the protection
of legality was directly accessible to the applicant, would that per
se affect the substantive capacity of the request for the
protection of legality to provide adequate redress or would it, for
that matter, make the existing reasonable possibility in that regard
only more certain?
Accordingly,
in the light of these specific circumstances, and bearing in mind the
functions of the Court (see paragraph 8 below), it appears not only
fair but also more acceptable from the standpoint of the validity of
the answer to the question of effectiveness of a particular remedy to
resort to the testing of effectiveness on an empirical basis, as
indicated by the dictum of the Chamber of the International
Court of Justice in the ELSI case:
“...
for an international claim to be admissible, it is sufficient if the
essence of the claim has been brought before the competent tribunals
and pursued as far as permitted by local law and procedures, and
without success.” (ICJ Reports
1989, p. 15 at p. 42, § 50)
This
approach is also in accordance with the grammatical meaning of
Article 35 § 1, requiring exhaustion of “all domestic
remedies”.
- The
operation of the flexibility principle in both directions in the
specific circumstances is also suggested by considerations of equity
based on the general legal and social context in which these remedies
are applied.
The
respondent State falls within the group of Contracting Parties which
undertook not long ago to incorporate in foro domestico a
corpus of civil and political rights enshrined in the Convention for
the Protection of Human Rights and Fundamental Freedoms and to submit
to the supervisory power of the European Court of Human Rights.
Full
compliance with this obligation required a certain period of time
even in the case of the original Contracting Parties, which by
tradition were already familiar with the concept and with the manner
of legal reasoning, let alone in the case of the Contracting Parties
which have found themselves in a process of radical and comprehensive
changes that cannot be implemented uno ictu and automatically.
Being formally bound by relevant instruments necessarily requires the
adoption of proper standards of legal reasoning in the entire
structure of the Contracting Party, including the judiciary. In that
regard, the role of the Court can be significant. For the function of
the Court as a supervisory judicial body is to be found not only in
adjudicating on concrete cases but also in enhancing, through its
legal reasoning, the consistent implementation of the substantive
rules of the Convention by the Contracting Parties.
This
latter function of the jurisprudence of the Court might be expressed
in particular through the proper interpretation of effective legal
remedies as a legal weapon most closely associated with the
subsidiary nature of the jurisdiction of the Court. Besides, such an
approach would have a positive impact as the expression of confidence
in the domestic legal order in the wider frame of the bona fidae
principle.
The merits of the case
- As
regards the freedom of political expression, it seems clear that the
standards established in that regard are an exception to the general
standards regarding the freedom of expression as defined by Article
10 of the Convention.
The
position of the Court in this regard may be summarised as follows:
the limits of permissible criticism are wider in relation to
politicians than in relation to private citizens (see Castells v.
Spain, judgment of 23 April 1992, Series A no. 236, §§
46-50, and Lopes Gomes da Silva v. Portugal, no. 37698/97, §§
34-36, ECHR 2000-X).
Exceptions
to the rule must, according to the generally accepted principle, be
interpreted restrictively (exceptiones sunt strictissime
interpretationis).
In
concreto, two elements are essential for the assessment as to
whether the text in question is a political one promoting political
values or ideas inherent in a democratic society or offensive,
defamatory factual allegations.
The
article in the instant case is largely or prevalently a political
one, expressing political ideas and values concerning political
trends, past and future, in the respondent State. To that extent, it
can be subsumed, as a value judgment, under the special protection of
political expression.
In
some parts, however, it contains elements of factual allegations. It
is said in the article that the mayor “in line with the slogan
‘money talks’ ... has continued with his near-insane
spending of the money belonging to the citizens of the Municipality
on ... sponsorships ... [and] ... gala luncheons ...”
The
decisive issue is not whether his spending was “near-insane”,
but the allegation that he had “continued with his near-insane
spending of the money belonging to the citizens of the Municipality
...”,which is tantamount to a charge of abuse of official
position, an offence under Article 242 of the Criminal Code of the
Republic of Serbia. Consequently, that particular part is in fact an
offensive, defamatory accusation devoid of foundation in the light of
the evidence presented. The claim that the applicant had reasonable
grounds to believe that the mayor had committed the criminal offence
of abuse of official position seems shaky, primarily in the light of
the fact that the applicant himself wrote the criminal charge, and as
such, in the light of the fundamental principle of good faith, it
cannot be taken as a reasonable ground for believing that the mayor
might have been involved in criminal activity.
As
the Court stated in Handyside v. United Kingdom (judgment of
7 December 1976, Series A no. 24, § 48): “... it is
not possible to find ... a uniform European conception of morals. The
view taken by [domestic] laws of the requirements of morals varies
from time to time and from place to place ... By reason of their
direct and continuous contact with the vital forces of their
countries, State authorities are in principle in a better position
than the international judge to give an opinion on the exact content
of these requirements.”
- It
should be borne in mind that the moral standards in patriarchal,
tradition-dominated communities, which undoubtedly include the
community where the mayor and the applicant live and work, are of a
specific nature.
The
special weight that insult has in a patriarchal society was probably
best described by the great poet Jovan Dučić in his work
entitled Tzar Radovan’s Treasure:
“A man feels more offended by bad things you said
about him than by any wrong you did to him. People tend to forget bad
blood and make it up more easily after a fight or unpleasant actions
than after words which contain insult.”
Variae
- In
part II (G) of the judgment (“The Court of Serbia and
Montenegro and the status of the State Union of Serbia and
Montenegro” – see paragraph 38) the majority refer to the
relevant provisions of the Court’s judgment in Matijašević
v. Serbia. Two points should, perhaps, be noted, since by that
reference the reasoning of the Court in the latter case becomes
automatically relevant in casu.
Primo,
the legal reasoning of the Court in the part of the Matijašević
judgment entitled “VI. The succession of Serbia” and its
application to the instant case seem legally dubious and
self-contradicting in the light of the relevant rules of
international law and common sense respectively. The truth is,
however, that it derives from a certain confusion with regard to the
notions of “successor State” and “continuing State”
within the succession complex.
The
Republic of Serbia is not the successor State, whether one of the
successors or the “sole successor”, in relation to the
State Union of Serbia and Montenegro. In the light of the relevant
rules of international law, as well as of the Constitutional Charter
of the State Union sponsored by the European Union, it is a
continuing State in relation to the State Union of Serbia and
Montenegro, its legal identity and continuity in terms of
international personality. Otherwise, it would be legally impossible
to consider, as stated in the decision taken by the Committee of
Ministers of the Council of Europe on 14 June 2006, that “(i)
Serbia ... (had continued) ... membership of [the State Union of]
Serbia and Montenegro in the Council of Europe with effect from 3
June 2006 and (ii) that it had remained a party to a number of
Council of Europe conventions signed and ratified by the former State
Union of Serbia and Montenegro, including the Convention for the
Protection of Human Rights and Fundamental Freedoms” (see
Matijašević, cited above, § 25).
The
legal position of Serbia as the continuator of the legal personality
of the State Union of Serbia and Montenegro has also been recognised
by the United Nations institutions (see Case Concerning the
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, Judgment, ICJ Reports 2007,§§
67-79).
Otherwise,
the issue of the locus standi of Serbia before the Court would
automatically arise (compare the Case concerning the Application
of the Convention on the Prevention and Punishment of the Crime of
Genocide, §§ 67-79).
In
essence, while the notion of “successor State” concerns
sovereignty, the notion of continuity concerns the international
legal personality of the State affected by territorial changes.
Hence,
the term “sole successor” (see Matijašević,
cited above, § 24) is devoid of legal substance within the law
of succession and, as such, it reflects the long-abandoned analogy
between succession in terms of international law and inheritance in
domestic law. It may possess factual significance only in the sense
of the number of new States or successor States which have emerged in
the process of succession. This means that, in this particular case
of succession, the Republic of Montenegro is the “sole
successor”.
Secundo,
the conclusion that, after Montenegro had declared its independence,
“the ... entity [State Union of Serbia and Montenegro] ceased
to exist, as did all of its bodies, including the Court of Serbia and
Montenegro” (ibid., § 36) is legally hardly tenable. In
terms of legal personality a predecessor State – in
concreto, the State Union of Serbia and Montenegro –
continues to live through a continuing State – in concreto,
the Republic of Serbia – which is territorially reduced and, as
a rule, retains all its institutions as well as its international
rights and duties.
Whether
or not some institutions will cease to exist is a matter within the
exclusive power of the continuing State, to be determined on the
basis of its own will, irrespective of international law. In the
circumstances surrounding the case at hand, this is evidenced by the
fact that the Court of the State Union of Serbia and Montenegro
ceased to exist on the basis of the Decree issued on 8 June 2006
(Official Gazette, no. 49/2006).
