CASE OF ŠABANOVIĆ v. MONTENEGRO AND SERBIA
Remainder inadmissible;Violation of Art. 10;Just satisfaction dismissed (out of time)
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1954 and lives in Herceg Novi. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 6 February 2003 a Montenegrin daily newspaper published an article about the quality of the water in the Herceg-Novi area, entitled “Taps full of bacteria” (Slavine pune bakterija). The article stated that all of the current water sources contained various bacteria. These assertions were based on a report produced by the Institute for Health (Institut za zdravlje Crne Gore), which had been requested by the Chief State Water Inspector (Glavni republički vodoprivredni inspektor, hereinafter “the Chief Inspector”), apparently with a view to exploring the possibility of connecting additional sources to the water-supply grid. The same article also included a statement by the applicant, at that time the Director of a public corporation called “The Water Supply and Sewage Systems” (JP Vodovod i Kanalizacija, hereinafter “the Water Supply Company”) and a member of the Socialist People’s Party (SNP), that he was not familiar with the analysis at issue, but that the water was regularly tested and always filtered before being pumped into the system. 8. On the same day the applicant held a press conference in response to the above-mentioned article. The applicant stated that, firstly, all tap water was filtered before being pumped into the water-supply system and was thus safe for use by the public. Secondly, the Chief Inspector had been promoting the interests of the two private companies which had already been granted licences to develop additional water sources and, lastly, the Chief Inspector had been directed to do so by the Democratic Party of Socialists (DPS) and the companies in question had themselves obtained their licences unlawfully. The statement was published in several daily newspapers. 9. On 7 April 2003 the Chief Inspector lodged a private criminal action (privatna krivična tužba) against the applicant for defamation (kleveta), claiming that the latter’s statements were untrue and, therefore, harmful to his honour and reputation. 10. On 4 September 2003 the Court of First Instance (Osnovni sud) in Podgorica held the main hearing, during which the applicant said that his statement was not defamatory, but that “it was a value judgment, which he could prove”. He stated that he had been informed about the results of the water analysis three days after the press conference, and the analysis clearly stated that the water from the water-supply system was of the necessary quality and was not a danger to health. He explained that there were obviously two reports, one concerning the water sources and one concerning the filtered water. He did not dispute the right of the Chief Inspector to ask for a water analysis, as it was his duty to do so, but the applicant did not think that the analysis of unfiltered water should have been published, but rather the analysis of the filtered water. Finally, he proposed that the court should read the article “Taps full of bacteria” to understand the context in which the impugned statement had been made, and that it should obtain the files concerning other proceedings ongoing at the time between the Water Supply Company and the two private companies in question. 11. At the same hearing the court also heard the Chief Inspector. He stated that he had always worked professionally and that he did not work under anybody’s orders, he himself having filed a criminal complaint against one of the two companies. He stated that he had ordered the analysis at issue after consulting his Minister, who had “supported” him (“koji [me] je podržao u tome”). He emphasised that the title of the newspaper article had had nothing to do with him, as newspapers wrote what they deemed appropriate (“novine pišu [...] po sopstvenom nahođenju”), although they were contacting him to obtain data. However, he was not interested in what the newspapers had written on this particular issue or why they had not published the analysis of the filtered water (“nije me interesovalo zašto nijesu objavljivali o analizi tretirane vode...”), his main concern being to prove that a particular water source was of adequate quality and that it could be used. 12. On the same day the court found the applicant guilty and sentenced him to three months’ imprisonment. This sentence, however, was suspended and was not to be enforced unless the applicant committed another crime within a period of two years. 13. In the operative part of the judgment only the following statement was found to amount to defamation, that is, to be “untrue” and “harmful to the honour and reputation of the private prosecutor”: “The Inspector [...] works in the interest and at the request of [the two companies], as directed by the DPS”. 14. In its reasoning the court stated that the statement made by the applicant was not supported by facts and rejected the applicant’s defence that it was merely a value judgment. In the court’s view the applicant had been aware that he might harm the honour and reputation of the private prosecutor and thus had had a defamatory intention (klevetnička namjera). The court refused to read the newspaper article or to request the files of the proceedings referred to by the applicant as that would only have delayed the proceedings and, in any event, neither was relevant for the proceedings at issue. 15. On an unspecified date thereafter the applicant lodged an appeal. He stated that, firstly, the Chief Inspector had sought the said analysis in order to examine the possibility of connecting water sources administered by the two private companies to the water-supply grid. Secondly, there were two water analyses, before and after it had been filtered, but the Chief Inspector had provided the newspapers only with the analysis of the unfiltered water. Thirdly, the Chief Inspector himself had not responded to the misleading title of the article stating that the taps were full of bacteria, because he was “not interested” in it. Fourthly, the court had refused to read the newspaper article, without which it was impossible to conclude that his intention had been to defame the private prosecutor. Finally, he did not think it was defamatory to say that a “government official worked as directed by the ruling party”, or that his response to such an article could be considered to amount to defamation of the private prosecutor. 16. On 1 November 2005 the judgment of 4 September 2003 was upheld by the High Court (Viši sud) in Podgorica, which fully endorsed the reasons given by the Court of First Instance. No effective appeal lay against this judgment to the Court of Serbia and Montenegro (see paragraphs 17-18 and 29 below). 17. Article 9 § 1 of the Constitutional Charter provided that both member States shall regulate, safeguard and protect human rights in its territory. 18. The relevant part of Article 46 provided that the Court of Serbia and Montenegro shall examine complaints lodged by citizens in cases where an institution of Serbia and Montenegro has infringed their rights and freedoms as guaranteed by the Constitutional Charter, if no other legal redress has been provided. 19. Section 34 § 2 provided for the freedom to publicly express one’s opinion. 20. Section 35 § 2 stipulated that citizens have the right to express and publish their opinions via the mass media. 21. The relevant provisions of this Act read as follows: “Whoever, in relation to another, asserts or disseminates a falsehood which can damage his honour and reputation shall be fined or punished by imprisonment not exceeding six months. Whoever commits one of the acts described in [the above] paragraph ... through the press, via radio or television ... [, in another manner through the mass media,] ... or at a public meeting shall be punished by imprisonment not exceeding one year. ... If the defendant proves his claims to be true or if he proves that he had reasonable grounds to believe in the veracity of the claims which he made or disseminated, he shall not be punished for defamation, but may be punished for the offence of insult ...” “The defendant shall not be punished for insulting another person if he does so in ... a serious critique, in the performance of his official duties, [...] in defence of a right or of a justified interest, or if from the manner of his expression it transpires that there was no intent to disparage.” 22. The relevant provisions of this Act read as follows: “In handing down a suspended sentence, the court shall impose a punishment on a person who has 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 or more than five years in all (period of suspension).” “In deciding whether or not to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his conduct prior to and following the commission of the criminal act, the degree of his criminal liability, as well as all the other circumstances under which the act was committed.” “The court shall revoke the suspended sentence [and order its execution] if, during the period of suspension, the convicted person commits one or more [additional] criminal acts for which he 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 [additional] criminal acts and is sentenced to imprisonment for a term not exceeding two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether or not to revoke the suspended sentence ... ”. 23. The Government referred, inter alia, to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted by the UNECE – United Nations Economic Commission for Europe – on 25 June 1998). 24. Section 5 § 1(c) of that convention provides that in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected. 25. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.