(Application no. 32550/05)
23 June 2009
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 BodroZić v. Serbia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 2 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“J.P., a historian, who during the 1980s and 1990s... used to write kilometres of various insults and defamation concerning the opponents of Milošević and his... regime, has again come to the centre of public attention thanks to... the journalist of Novi Sad TV..., who had invited him as a guest on the show 'Unbuttoned'. And J.P. would not have been himself (an idiot), if he had not used another opportunity to express his fascist-oriented points of view. This is how he, on a national TV channel..., stated that Baranja was under Croatian occupation and that Slovaks, Romanians and above all Hungarians in Vojvodina were colonists... According to [J.] P., there are no Croats in Vojvodina..., whereas the Hungarians are mainly Slavs... because they have 'such nice Slavic faces'...
In these three weeks following the show, many NGOs and individuals, as well as a few political parties, uttered their opinions.... [They] requested the Radio Broadcasting Council, relying on point 6 of its recommendation which provides... that 'all broadcasters were under the obligation to respect... the provisions restraining hate speech', to take appropriate measures against the [national] TV...
The Minister of Culture and Media and other officials also reacted ...
The latest news indicates that the Radio Broadcasting Agency has been collecting relevant information about the show... Meanwhile, J.P. must be gloating because he has managed once again to launch his twisted attitudes into the public domain. Following the changes of 5 October, this professional 'long spitter' was... appointed head of the Serbian History Archive... until recently, when the Government discharged him. He was then granted the opportunity in some tabloids ... to [criticise] the existing Government and the “non-existent nations”. 'Unbuttoned' was just the last episode of this activist... who will undoubtedly... contaminate our environment for a long time to come.”
II. RELEVANT DOMESTIC LAW
Article 92 (1)
“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.”
“1. Whoever insults another shall be fined or punished by imprisonment not exceeding three months.
2. Whoever commits an act described in [the above] paragraph ... through the press ... or at a public meeting shall be fined or punished by imprisonment not exceeding six months.”
“1. ... [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.
2. 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] ...”
“...3. 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 does not exceed six months.
4. If the convicted person pays only a part of the fine [imposed], the rest shall ... be converted into imprisonment, and if the convicted person [subsequently] pays the remainder of the fine, his imprisonment shall be discontinued.”
“Documents which need to be served in person pursuant to the provisions of this Code shall be served directly on the addressee. If the person to be served cannot be reached at the place where the service is to be effected, the process server shall inquire when and where that person can be found and leave with one of the persons stated in Article 161 of this Code a written notice inviting the recipient to be in his flat or place of work on a specified date and hour for the purpose of receiving the document. If even after this the server of process does not find the addressee, he shall act in accordance with section 161 (1) of this Code and it shall be deemed that by such acts the document is served.”
“1. A document which does not have to be served in person pursuant to the provisions of this Code shall also be served in person, but if the addressee is not found at his flat or place of work the documents can be served on any adult member of his household who is obliged to receive it. If no members of the addressee's household are found in the flat, the document may be served on the housekeeper or a neighbour, if they accept it. If the service is attempted at the addressee's place of work and he cannot be found there, service can be effected on a person authorised to receive mail therein, who is obliged to receive the document, or to any other employee, if he is willing to accept the service.
2. If it is established that the recipient is absent and that the persons from paragraph 1 of this section are unable to deliver the document to him in due time, it shall be returned with a notice containing information on the recipient's whereabouts.”
Article 162 (1)
“The summons... for the main hearing shall be served on the defendant in person.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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 ...”
1. The parties' submissions
2. The Court's assessment
(a) “Prescribed by law”
(b) “Legitimate aim”
(c) Necessary in a democratic society”
α. General principles
β. Application to the present case
There has accordingly been a violation of Article 10 of the Convention.
II.. ALLEGED VIOLATION OF ARTICLE 6 § 3 (b) OF THE CONVENTION
“3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence...”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 500 (five hundred euros) in respect of non-pecuniary damage, which sum is 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 23 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Deputy Registrar President