CASE OF LEPOJIC v. SERBIA
Violation of Art. 10;No separate issue under Art. 6;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
5. 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. 6. 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. 7. 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 lužnicke 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 ...” 8. In response to the publication of this article, on 12 September 2002, the Mayor filed a private criminal action (privatna krivična tužba) against the applicant with the Municipal Court in Babušnica (“the Municipal Court”). 9. 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. 10. 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 ...” 11. 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. 12. 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). 13. 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. 14. 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. 15. 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. 16. 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”. 17. 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. 18. 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. 19. 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. 20. 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. 21. Page 6 contained photographs and campaign slogans in support of Mr M.L. 22. Most other pages also carried articles concerning various political issues and the newsletter itself was handed out free of charge. 23. 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. 24. 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. 25. 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. 26. 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. 27. The relevant provisions of this Code read as follows: “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.” “... [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] ...” 28. The relevant provisions of this Code read as follows: “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.” “... [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.” “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) ...” “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.” “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 ...” “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.” “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] ... ” 29. Article 3 § 1 enshrines the defendant's right to be presumed innocent until proved guilty by a final decision of a court of law. 30. Article 419 provides, inter alia, that the competent public prosecutor “may” (može) 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). 31. 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. 32. 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. 33. Articles 35-40 provided general rules as regards the means of establishing the value of a plaintiff's civil claim. 34. 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 ...”. 35. 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. 36. 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. 37. 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. 38. 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). 39. The relevant provisions of this Declaration read as follows: “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.” “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.” 40. 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.”