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KOPRIVICA v. MONTENEGRO - 41158/09 [2011] ECHR 1958 (22 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1958.html
Cite as:
[2011] ECHR 1958
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FOURTH
SECTION
CASE OF
KOPRIVICA v. MONTENEGRO
(Application
no. 41158/09)
JUDGMENT
(Merits)
STRASBOURG
22
November 2011
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 Koprivica v. Montenegro,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
David Thór Björgvinsson,
Päivi
Hirvelä,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 41158/09) against Montenegro
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Montenegrin national, Mr Veseljko Koprivica
(“the applicant”), on 31 July 2009.
The
applicant was represented by Mr R. Prelević, a lawyer practising
in Podgorica. The Montenegrin Government (“the Government”)
were represented by their Agent, Mr Z. PaZin.
The
applicant complained under Article 10 of the Convention that the
final civil court judgment rendered against him breached his right to
freedom of expression.
On
10 May 2010 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1948 and lives in Podgorica.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The article and ensuing civil proceedings
On
24 September 1994 an article, entitled “16”, was
published in a Montenegrin weekly magazine, the Liberal, in
circulation at the time, which was opposed to the Government. The
article, which appeared to have been written by a special
correspondent from The Hague, reported that many journalists from the
former Yugoslavia were going to be tried for incitement to war before
the International Criminal Tribunal for the former Yugoslavia (“the
ICTY”), including sixteen journalists from Montenegro. The
article named the two ICTY officials who had allegedly prepared the
file and then went on to list the names of the sixteen journalists in
question. The applicant in the present case was the editor-in-chief
of the Liberal and its founder was a prominent opposition
party at the time.
On
27 October 1995 one of the sixteen journalists whose name had
appeared in the article (“the plaintiff”), and who had
himself been an editor of a major State-owned media outlet, filed a
compensation claim against the applicant and the magazine’s
founder. The plaintiff claimed that the assertions contained in the
article, which were later repeated through other media both within
the country and abroad, were untrue and that they were harmful to his
honour and reputation. He enclosed a copy of a Serbian daily
newspaper, the Politika, published on 27 September 1994, in
support of his claim that the assertions had been transmitted by
other media.
On
29 May 2002 the ICTY informed the Court of First Instance (Osnovni
sud) in Podgorica that it had no information whatsoever
concerning the plaintiff.
In
the course of the civil proceedings, the applicant maintained that he
had relied on the information provided by the magazine’s
special correspondent. Commenting on the ICTY’s statement,
however, the applicant said:
“I’m not interested in there being no
proceedings against [the plaintiff], the contents of the ICTY ...
letter, or whether [the plaintiff] is on that list. I have personally
witnessed [his] work as the editor-in-chief of the [media outlet in
question] during the reporting on the Dubrovnik operation ....”.
On
17 May 2004 the Court of First Instance ruled partly in favour of the
plaintiff, ordering the applicant and the magazine’s founder,
jointly, to pay him the sum of 5,000 euros (“EUR”) for
the non-pecuniary damage suffered. On the basis of the ICTY’s
statement, the court found that the published assertions had not been
true and, in particular, that the applicant had not been interested
in their veracity. The court refused to hear the author of the
article, considering it unnecessary in the light of the information
provided by the ICTY. It considered that the applicant’s
proposal that the author be heard was also aimed at delaying the
proceedings as the applicant did not know his exact address. In any
event, the author had not mentioned in his text the number of the
case file, dates or any other data which would in a convincing manner
support the veracity of the information. The court held that the
applicant should not have allowed the publishing of untrue
information, as it represented a misuse of freedom of expression, and
that he should have attempted to check its accuracy first instead of
trusting his correspondent unreservedly. The court further held that
personal beliefs and convictions could not justify the publishing of
such information and concluded that the assertions in question had
harmed the honour and the reputation of the plaintiff.
Both
the plaintiff and the applicant appealed against the judgment. The
plaintiff, in particular, complained that the compensation awarded
was too low. The applicant, for his part, disputed that he, as the
editor-in-chief, should be held responsible for the publishing of
information of dubious veracity. He submitted that the information
was of particular importance to the public and proposed additional
evidence, namely that the court hear a colleague of his as an
additional witness, as he was present when the fax with the impugned
information was received and whom he consulted on whether to publish
the information or not, as well as to see a documentary film
broadcast in 2004 by the same media outlet whose editor-in-chief in
the early 1990s had been the plaintiff himself, and which allegedly
contained an unfavourable reference to the plaintiff and his work at
the time. The applicant concluded that, in any event, the damages
awarded were too high.
On
14 March 2008 the High Court (Viši sud) in Podgorica
increased the amount of damages to EUR 10,000 and assessed the
litigation costs at EUR 5,505. In so doing, it endorsed the reasoning
of the Court of First Instance, adding that the applicant should have
focused on the accuracy of the information in question rather than
having it published as soon as possible. The court took the view that
the veracity of the assertions could not be established by the
applicant consulting the article’s author or another colleague
but only by reliable evidence, which was lacking in this case. It
further held that, according to the legislation in force at the time
the article was published, the editor-in-chief, inter alia,
could also be held responsible for publishing untrue information (see
paragraph 32 below). The court made no reference to the documentary
film referred to by the applicant.
On
6 November 2008 the Supreme Court (Vrhovni sud) in Podgorica
amended the High Court’s judgment, reducing the damages and
costs awarded to EUR 5,000 and EUR 2,677.50, respectively.
B. Enforcement proceedings
On
5 June 2009 the Court of First Instance ordered the payment of the
amounts awarded by the High Court.
On
17 November 2009 the Court of First Instance issued a further order,
specifying that payment should be made by regular transfers of one
half of the applicant’s salary (zarada) which he was
earning in another magazine.
On
17 November 2010, following a request by the applicant, the Court of
First Instance terminated (obustavio) the enforcement of the
High Court’s judgment. At the same time, it confirmed that
the amount owed was the one awarded by the Supreme Court, to be paid
by regular transfers of one half of the applicant’s salary to
the plaintiff.
By
14 October 2011 the applicant had paid to the plaintiff EUR 852.99
in total.
C. Other relevant facts
It
would appear that as of March 2005 the founder of the magazine ceased
to exist, leaving the applicant as the only remaining debtor.
The
applicant’s pension between 2004 and 2008 ranged between EUR
170 and EUR 300 per month.
The
average monthly income in Montenegro when the relevant domestic
decisions were rendered was EUR 195 in 2004 and EUR 416 in 2008.
Financial brokers had the highest incomes, these being on average EUR
345 in 2004 and EUR 854 in 2008.
There
are no copies of any articles relating to the impugned information
published by other media in the case file except for a copy of part
of the article published in the Politika (see paragraph 8
above).
On
an unspecified date after the impugned article had been published
another journalist from the list of the sixteen lodged a private
criminal action (privatna krivična tuZba) against the
applicant for defamation (kleveta). On 20 September 1995 the
Court of First Instance found the applicant guilty and ordered him to
pay a fine of 800 dinars (YUD) and costs in the amount of YUD 100. On
23 November 1999 the High Court rejected the criminal action as the
prosecution had become time-barred in the meantime. There is no
information in the case file whether other journalists whose names
appeared in the article instituted proceedings, either civil or
criminal, against the applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Montenegro 2007 (Ustav Crne Gore;
published in the Official Gazette of Montenegro - OGM - no. 1/07)
The
relevant provisions of the Constitution read as follows:
Article 47
“Everyone is entitled to freedom of expression
....
Freedom of expression can be limited only by the right
of others to dignity, reputation and honour ....”
Article 147 §§ 1 and 2
An Act ... cannot have a retroactive effect.
Exceptionally, certain provisions of an Act can have
retroactive effect, if required by the public interest ....
Article 149
“The Constitutional Court shall ...
(3) ... [rule on a] ... constitutional appeal ...
[lodged in respect of an alleged] ... violation of a human right or
freedom guaranteed by the Constitution, after all other effective
legal remedies have been exhausted ...”
The
Constitution entered into force on 22 October 2007.
B. Constitutional Court Act of Montenegro (Zakon o
Ustavnom sudu Crne Gore; published in OGM no. 64/08)
Section
34 provides, inter alia, that while decisions upon a
constitutional appeal may be published in the Official Gazette, they
must be published on the website of the Constitutional Court.
Sections
48 to 59 provide additional details as regards the processing of
constitutional appeals. In particular, section 56 provides that
when the Constitutional Court finds a violation of a human right or
freedom, it shall quash the impugned decision, entirely or partially,
and order that the case be re-examined by the same body which
rendered the quashed decision.
This
Act entered into force in November 2008.
C. Rules of the Constitutional Court of Montenegro
(Poslovnik Ustavnog suda Crne Gore; published in OGM no.
33/09)
Rule
93(2) provides that public access to the work of the court is to be
ensured, inter alia, by publishing its decisions in the
Official Gazette of Montenegro and on the website of the court.
D. Obligations Act (Zakon o obligacionim odnosima;
published in the Official Gazette of the Socialist Federal Republic
of Yugoslavia - OG SFRY - nos. 29/78, 39/85, 45/89, 57/89 and the
Official Gazette of the Federal Republic of Yugoslavia - OG FRY - no.
31/93)
Section
198 regulated responsibility for pecuniary damage caused by an
individual’s harming another person’s reputation or
asserting or disseminating untrue allegations where that individual
knew or should have known that these allegations were untrue.
Under
sections 199 and 200, inter alia, anyone who had suffered
mental anguish as a consequence of damage to his honour or reputation
could, depending on its duration and intensity, sue for financial
compensation before the civil courts and, in addition, request other
forms of redress “which might be capable” of affording
adequate non-pecuniary compensation.
E. Public Information Act (Zakon o javnom
informisanju; published in the Official Gazette of the Republic
of Montenegro no. 56/93)
Section
62 provided that if untrue information, which harmed another’s
honour or reputation, was published in the media (javno glasilo),
an interested person would be entitled to sue the relevant author,
editor-in-chief, founder and publisher for financial compensation.
F. Media Act (Zakon o medijima; published in
OGRM nos. 51/02 and 62/02 and OGM no. 46/10)
Section
20 of the Act provides that if a person’s honour or integrity
is harmed by information published in the media, that person may file
a compensation claim against the author and the founder of the
particular medium in question.
This
Act entered into force in 2002.
G. The relevant domestic case-law
As
of 21 July 2011 a total of 705 constitutional appeals would appear to
have been examined by the Constitutional Court: 351 of them were
rejected on procedural grounds (odbačene), 333 were
rejected on the merits (odbijene), in three cases the
proceedings were terminated (obustava postupka), and in four
cases examination was adjourned. By the same date, fourteen
constitutional appeals had been accepted, the first one having been
accepted on 8 July 2010; this decision was published in the Official
Gazette on 26 November 2010.
A
single document containing 77 decisions rendered in 2009 was posted
on the website of the Constitutional Court on an unspecified date in
2010. Another single document containing 205 decisions, out of 337
rendered in 2010, was posted on the website on an unspecified date
after 17 May 2011. By 21 July 2011 none of 291 decisions
rendered in 2011 has been made public on the Constitutional Court’s
website.
By
the same date thirteen decisions had been published in the Official
Gazettes and in these thirteen constitutional appeals were accepted.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained, under Article 10 of the Convention, that his
right to freedom of expression had been breached as a result of the
final civil court judgment rendered against him.
Article
10 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. The parties’ submissions
The
Government maintained that the applicant had failed to exhaust all
effective domestic remedies. In particular, he had failed to lodge a
constitutional appeal.
The
applicant asserted that a constitutional appeal was not an effective
domestic remedy. He maintained that proceedings following a
constitutional appeal lasted too long, two years on average. He
further contended that even if such an appeal were to be upheld, the
Constitutional Court could only quash the impugned decision and order
that the case be re-examined, while he would have to institute
another set of proceedings in order to obtain just satisfaction for
any damage caused by the decision held to run counter to
constitutional provisions.
2. Relevant principles
The
Court reiterates 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, that
is to say, that it was accessible, was one which was capable of
providing redress in respect of the applicant’s complaints and
offered reasonable prospects of success. However, 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 the requirement (see, Akdivar and Others
v. Turkey, 16 September 1996, § 65, Reports of
Judgments and Decisions 1996-IV).
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 Akdivar and Others, cited above,
§ 69).
3. The Court’s assessment
The
Court notes that following their introduction in October 2007,
constitutional appeals had been systematically rejected or dismissed
until July 2010, when the first decision upholding such an appeal was
rendered, which decision was published more than four months later.
The
Court further notes that by 31 July 2009, the date on which the
applicant lodged his complaint with this Court, no constitutional
appeal had been upheld, nor had any decision rendered thereupon been
made available to the public, even though the constitutional appeal
had already existed for roughly one year and nine months. Such a
situation continued until an unspecified date in 2010, with the
majority of decisions not having been made public even afterwards. As
the applicant had filed his application with the Court before any
decision of the Constitutional Court was published and because the
issue of whether domestic remedies have been exhausted is normally
determined by reference to the date when the application was lodged,
the Court considers that the applicant was not obliged to exhaust
this particular avenue of redress before turning to Strasbourg (see,
mutatis mutandis, Vinčić and Others v. Serbia,
no. 44698/06 et seq. § 51, 1 December 2009, as well as
Cvetković v. Serbia, no. 17271/04, § 41, 10 June
2008). Therefore, the Government’s objection in this regard
must be dismissed. The Court might in future cases reconsider its
view if the Government demonstrate, with reference to concrete
published decisions, the efficacy of the remedy, with the consequence
that applicants may be required first to exhaust that remedy before
making an application to the Court (see, mutatis mutandis,
Burden v. the United Kingdom [GC], no. 13378/05, §§
43-44, 29 April 2008).
The
Court notes that the applicant’s complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
Merits
The parties’ submissions
(a) The applicant’s submissions
The
applicant maintained that the domestic courts’ judgments were
not in accordance with the law, as the courts should have applied the
Media Act of 2002, which did not provide for the responsibility of
the editor-in-chief, as well as sections 198 and 199 of the
Obligations Act, which provided other forms of redress (see
paragraphs 30, 31, 33 and 34 above).
The
applicant reiterated that the domestic courts had rejected all the
evidence proposed by him in order to establish whether he had acted
in good faith, and whether any public interest had been served in
publishing the article in question. In particular, they had refused
to hear the witnesses he had proposed or to view the documentary film
(see paragraph 13 above).
He
further submitted that, at the time, there had been no official
contacts between the ICTY and the then Federal Republic of Yugoslavia
(FRY), of which Montenegro had been a part; nor had there been any
Internet connection available in Montenegro. In view of this, he had
entirely depended on the special correspondent and his own sound
judgment of his opponent’s editorial policy. Furthermore, the
plaintiff himself had made no attempt whatsoever to deny the
information in issue.
He
maintained that his statement as cited in the judgment of the Court
of First Instance (see paragraph 10 above) was rather the domestic
judge’s interpretation of what he had said at a hearing when he
had not been represented by a professional lawyer. What he had meant
was that anyone who had observed the plaintiff’s editorial
policy at the relevant time could have easily believed that the ICTY
was investigating his role.
Finally,
the applicant submitted that the compensation awarded was
disproportionate, having regard to his modest income at the time (see
paragraph 20 above).
(b) The Government’s submissions
The
Government submitted that the domestic decisions were in accordance
with the law, as the Constitution prohibited retroactive
implementation of legislation, and there was no legal ground for the
implementation of the legislation passed in 2002 (see paragraph 24
above).
They
reiterated that freedom of expression was not an absolute right but
was limited to a significant extent, including in the interest of the
protection of the honour and reputation of others.
The
Government maintained that Article 10 provided not only for the
freedom of the media to inform the public but also for the right of
the public to be properly informed, this being particularly important
with regard to the ICTY and war crimes proceedings, being issues of
the broadest public interest. They agreed that while a public debate
about issues important for society, including editorial policy, in
particular during the war, was fully legitimate in a democratic
society, it was nevertheless unacceptable to misinform the public by
publishing assertions that international criminal proceedings were
pending against someone when that was not the case.
They
maintained that the information in question was clearly a statement
of fact, which had proved to be absolutely inaccurate (see paragraph
9 above), and that its aim was to discredit the plaintiff. The
domestic courts had reliably established that the applicant had not
been acting in good faith, as the information was nothing more than
an undated typed list of names containing no explanation which might
lead to the conclusion that the ICTY was in any way interested in the
listed journalists.
They
pointed to the unprofessional attitude of the applicant in his
failure to check the veracity of the information, in particular his
lack of interest in its accuracy (see paragraph 10 above). The
domestic courts had legitimately refused to hear the witnesses
proposed by him, and had duly explained why. In the Government’s
opinion, the applicant had not proved in the domestic proceedings
that the correspondent had indeed had such a status in the Liberal
or that he was the author of the article.
They
contested the assertion that the applicant’s statement had not
been quoted correctly, as he had never before made any objections to
the court’s record, even though he had been legally
represented.
Lastly,
they doubted that a pension was the applicant’s only income.
The
Government concluded that the interference of the domestic courts
with the applicant’s right to freedom of expression in this
particular case had pursued a legitimate aim and that the
compensation awarded was proportionate to this aim, in particular in
view of the fact that the information in question had been further
transmitted by news agencies throughout the former Yugoslavia, as
well as Radio Free Europe, and thus made available to a large number
of people.
2. The relevant principles
The
Court emphasises the essential function fulfilled by the press in a
democratic society. Although the press must not overstep certain
bounds, particularly in respect of the reputation and rights of
others, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest. Journalistic
freedom also covers possible recourse to a degree of exaggeration, or
even provocation (see Dalban v. Romania [GC], no. 28114/95,
§ 49, ECHR 1999-VI).
It is in the first place for the national authorities
to assess whether there is a “pressing social need” for a
restriction on freedom of expression and, in making that assessment,
they enjoy a certain margin of appreciation (see Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and
36448/02, § 45, ECHR 2007-...). In cases concerning the press,
the State’s margin of appreciation is circumscribed by the
interest of a democratic society in ensuring and maintaining a free
press. The Court’s task in exercising its supervisory function
is to look at the interference complained of in the light of the case
as a whole and to determine whether the reasons adduced by the
national authorities to justify it are “relevant and
sufficient” and whether the measure taken was proportionate to
the legitimate aim pursued (see Vogt v. Germany, 26 September
1995, § 52, Series A no. 323; and Jerusalem v. Austria,
no. 26958/95, § 33, ECHR 2001-II).
A
careful distinction needs also to be made between facts and
value-judgments. The existence of facts can be demonstrated, whereas
the truth of value-judgments is not susceptible of proof (see Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 98, ECHR
2004 XI, and Kasabova v. Bulgaria, no. 22385/03,
§ 58 in limine,
19 April 2011).
Article
10 of the Convention does not, however, guarantee wholly unrestricted
freedom of expression even with respect to press coverage of matters
of serious public concern. Under the terms of paragraph 2 of the
Article the exercise of this freedom carries with it “duties
and responsibilities”, which also apply to the press. These
“duties and responsibilities” are liable to assume
significance when there is a question, as in the instant case, of
attacking the reputation of named individuals and undermining the
“rights of others”. By reason of the “duties and
responsibilities” inherent in the exercise of the freedom of
expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the
proviso that they are acting in good faith in order to provide
accurate and reliable information in accordance with the ethics of
journalism (see, mutatis mutandis, Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR
1999-III; as well as Rumyana Ivanova v. Bulgaria, no.
36207/03, § 61, 14 February 2008, and Kasabova v.
Bulgaria, cited above, § 63).
Finally,
the amount of compensation awarded must “bear a reasonable
relationship of proportionality to the ... [moral] ... injury ...
suffered” by the plaintiff in question (see
Tolstoy Miloslavsky v. the United Kingdom, 13 July
1995, § 49 Series A no. 316-B; Steel and Morris v.
the United Kingdom, no. 68416/01, § 96, ECHR 2005 - II,
where the Court held that the damages “awarded ... although
relatively moderate by contemporary standards ... [were] ... very
substantial when compared to the modest incomes and resources of the
... applicants ...” and, as such, in breach of the Convention;
see also Lepojić v. Serbia, no. 13909/05, § 77 in
fine, 6 November 2007, where the reasoning of the domestic
courts was found to be insufficient given, inter alia, the
amount of compensation and costs awarded equivalent to approximately
eight average monthly salaries).
3. The Court’s assessment
Turning
to the present case, the Court considers that the final civil court
judgment undoubtedly constituted an interference with the applicant’s
right to freedom of expression. In view of the relevant provisions of
the Obligations Act and the prohibition on retroactive implementation
of Acts under the Montenegrin Constitution, the Court is satisfied
that the interference was “prescribed by law” within the
meaning of Article 10 § 2 of the Convention (see paragraphs 24,
30 and 31 above). The Court does not consider that section 198 of the
Obligations Act, invoked by the applicant (see paragraph 30 above),
was applicable in the present case, as it concerned compensation for
pecuniary damage. The Court further accepts that the impugned
judgment was adopted in pursuit of a legitimate aim, namely “for
the protection of the reputation” of another. What remains to
be resolved, therefore, is whether the interference was “necessary
in a democratic society”.
In
this latter connection, the Court considers that the impugned article
was clearly based on an allegation of fact and as such susceptible to
proof. It must therefore be examined whether there were any special
grounds in the particular circumstances of the present case for
requiring the applicant as the editor-in-chief of the magazine to
verify whether the information, which was allegedly defamatory of the
plaintiff, had a basis in fact. The Court notes in this connection
that the information amounted to a serious accusation against the
plaintiff, the more so given the sensitivity of the regional context
at the material time. On that account, the Court considers that
particular diligence was required before transmitting the information
to the public. Furthermore, the situation must be examined as it
presented itself to the applicant at the material time, rather than
with the benefit of hindsight on the basis of the information
contained in the ICTY letter obtained in the course of the domestic
proceedings a long time thereafter (see paragraph 9 above, see also
Bladet Tromsø and Stensaas v. Norway, cited above, §
66 in fine).
The
Court observes that the inaccuracy of the information published was,
in substance, the main reason why the domestic courts awarded
damages. The applicant, for his part, submitted that it was
impossible for him to check the accuracy of the special
correspondent’s dispatch, as there was no Internet connection
or official contacts between the FRY and the ICTY at the relevant
time. The domestic courts themselves established only in 2002 that
the information was untrue, namely six years and seven months after
the domestic proceedings had been instituted. However, it is unclear
whether this was due to the domestic courts’ inactivity in this
regard or because it had been impossible to establish the veracity of
the information earlier.
The Court considers that, in the absence of official
contacts and Internet, there was no reason for the applicant not to
try at least to contact the ICTY himself by other means (telephone,
fax, mail) in order to double-check the existence of a factual basis
for the allegation. The Court is aware that news is a perishable
commodity and to delay its publication, even for a short period, may
well deprive it of all its value and interest (see, inter alia,
Bozhkov v. Bulgaria, no. 3316/04, §
48, 19 April 2011, and the authorities cited therein).
However, in the present case, the article was not published in a
daily newspaper, but in a weekly magazine, which gave the applicant
more time for double-checking. In addition, the applicant’s
statement made during the domestic proceedings clearly implies that
he was not concerned with verifying the truth or reliability of the
information before publishing it (see paragraph 10 above).
While
the Government expressed a doubt that the correspondent was the
author of the article, the Court observes that the applicant proposed
in the course of the domestic proceedings that the courts hear both
the correspondent as well as another journalist who was present on
the magazine’s premises when the impugned information was
received by fax (see paragraphs 57, 11, 12 and 13 above, in that
order). However, the courts refused to hear the witnesses proposed.
Even
though it can be argued that in the particular circumstances of the
instant case the applicant should have personally taken steps to
verify the accuracy of the impugned information, the Court considers
that the person best placed to check the accuracy was the special
correspondent. It is significant that at all times the applicant
maintained that he had confidence in the professionalism of the
magazine’s special correspondent and, on that account,
requested the domestic courts to hear the special correspondent. The
courts refused to do so (see paragraphs 11 and 49 above). The
applicant was thus denied an opportunity to attempt to clarify the
situation. The Court recalls that it is not, in principle,
incompatible with Article 10 to place on the defendant in libel
proceedings the burden of proving to the civil standard the truth of
defamatory statements. However, this is subject to the proviso that
the defendant must be allowed a realistic opportunity to do so (see
Kasabova v. Bulgaria, cited above, §
58 in limine,
and the relevant autorities cited therein).
While
noting the above considerations, the Court is prepared to accept that
the applicant failed to take adequate steps to verify the impugned
information, while also acknowledging that the domestic courts, for
their part, took a rather restricted approach to the matter by
refusing the applicant’s proposals to hear relevant witnesses.
However, the Court does not consider it necessary to take a firm
stance on these matters, because it is in any event of the view that
the damages awarded against the applicant were disproportionate (see,
mutatis mutandis, Kasabova v. Bulgaria, cited
above, § 68).
In
particular, the Court finds that the damages and costs awarded were
very substantial when compared to the applicant’s income at the
time, being roughly twenty-five times greater than the applicant’s
pension (see paragraphs 14 and 20 above; see also Tolstoy
Miloslavsky v. the United Kingdom, cited above; and Lepojić
v. Serbia, cited above, § 77 in fine). While the
Government contested that the applicant’s pension was his only
income, they failed to submit any evidence to the contrary (see
paragraph 59 above). The Court notes that the enforcement order of 17
November 2009 implies that the applicant at that time worked for
another magazine (see paragraph 16 above). However, there is no
information in the case file that he was also working at the time
when the domestic judgments were rendered. In any event, the Court
considers that the damages and costs he was ordered to pay to the
plaintiff were very substantial even when compared to the highest
incomes in the respondent State in general (see paragraph 21 above,
see also, mutatis mutandis, Sorguç v. Turkey,
no. 17089/03, § 37, ECHR 2009 ... (extracts)).
In
conclusion, the Court finds that the award of damages and costs in
the present case were disproportionate to the legitimate aim served
(see, mutatis mutandis, Steel and Morris v. the United
Kingdom, cited above, § 97). It follows that the
interference with the applicant’s right to freedom of
expression was not “necessary in a democratic society”.
There
has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The
relevant provision of this Article reads as follows:
Article 41
“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.”
The
applicant claimed EUR 7,667.50 in respect of pecuniary damage, this
amount corresponding to damages and legal costs awarded against him
in the domestic proceedings, and EUR 5,000 in respect of
non-pecuniary damage. He also claimed EUR 593 for the costs and
expenses incurred before the Court.
The
Government contested the claim in respect of pecuniary and
non-pecuniary damage. In particular, they maintained that there was
no causal link between the damage and the possible violation of
Article 10. Finally, the domestic judgment had not been enforced yet
and the applicant had not paid the amounts awarded. The Government
left the applicant’s claim in respect of the costs and expenses
to the assessment of the Court.
The Court considers that this question is not ready
for decision. Accordingly, it shall be reserved and the subsequent
procedure fixed having regard to any agreement which might be reached
between the parties (Rule 75 § 1 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds that the question of the application of
Article 41 of the Convention is not ready for decision and
accordingly
(i) reserves
the said question in whole;
(ii) invites
the parties to submit, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, their written observations on the matter and, in
particular, to notify the Court of any agreement that they may reach;
(iii)
reserves the further procedure and delegates to the
President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
