PEJOVIĆ v. MONTENEGRO
Inadmissible
Egidijus Kūris;Helen Keller;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Mr Jovan Pejović, is a Montenegrin national, who was born in 1956 and lives in Herceg Novi. 2. The Montenegrin Government (“the Government”) were represented by their Agent at the time, Mr Z. Pažin. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 July 2004 a Montenegrin daily newspaper, the DAN, published an article entitled “The president of the court enabled his brother’s unjust enrichment”. The article, in substance, alleged that there were numerous failures (propusti) in the Court of First Instance (Osnovni sud) in Herceg-Novi, most of which were attributable to the president of that court, V.Š., against whom a number of criminal complaints had been filed. One such complaint, filed by the applicant, as reported by the article, implied that V.Š. had abused his office. He had allegedly kept hidden an eviction claim filed by a private company X against his brother, D.Š., and his brother’s company, thus enabling D.Š. unlawfully to make a profit of between 15,000 and 20,000 euros (EUR) on a monthly basis by using somebody else’s property. 5. On 25 August 2004 and 29 July 2004 V.Š. and D.Š. each lodged a private criminal action against the applicant for defamation (kleveta), claiming that the latter’s statements were untrue and, therefore, harmful to their honour and reputation. 6. On 19 October 2004 the Supreme Court (Vrhovni sud) designated the Court of First Instance in Kotor as the competent court to process the actions. 7. On 7 November 2007, after a remittal, the applicant was found guilty of defamation (kleveta u produženom trajanju), fined 2,400 euros (EUR), and ordered to pay EUR 100 for the court fees (sudski paušal). The judgment specified that if the fine was not paid within 60 days from the day when the judgment became final, it would be converted into a 60-day prison term. 8. In the course of the proceedings the applicant confirmed that he had lodged a criminal complaint with the police and made a similar submission to the Supreme Court, but claimed that he had never given a statement to the DAN relating to the allegations contained in the article. His intention was not to insult D.Š., but to draw the attention to the irregularities in the work of V.Š. 9. The journalist who wrote the article maintained that his source of information was from the Ministry of Interior, whose identity he did not want to reveal, and that the article had been written on the basis of the applicant’s criminal complaint only. 10. V.Š., for his part, considered that the newspaper’s source of information was the applicant. It was not true that he had kept the eviction case-file hidden and the only reason why the case had not been concluded earlier was due to an enormous number of cases pending before the said court, which was widely known. In any event, his brother was not a respondent party in these proceedings. 11. D.Š. submitted that the applicant had made untrue statements in the article published in the DAN about his unlawful use of business premises owned by X. 12. The court established that the applicant’s submission made to a number of judicial bodies alleged, inter alia, that V.Š. had acted contrary to the Courts Act for two years by not allocating the said eviction case to another judge. The remainder of the submission contained allegations relating to V.Š. only. It was further established that the newspaper article contained, inter alia, the allegations from the applicant’s criminal complaint implying that V.Š. had abused his office by enabling his brother’s unjust enrichment. The court took into account that the applicant had failed to prove the veracity of his claims as he did not have a final court judgment convicting V.Š. in this regard. The journalist’s statement was held to be illogical and made with the aim of helping the applicant. 13. In view of this, the court held that the applicant had given untrue statements about the private prosecutors through the media or in a similar way and thus committed the said criminal offence. In particular, he had made a submission to the High Court and other bodies, as well as an untrue statement to the DAN about V.Š. and his involvement in the said eviction proceedings, which “undoubtedly harmed the honour and reputation of the private prosecutors”. The court, however, did not accept that the statements could have led to more severe consequences. 14. Without verifying the applicant’s financial status (imovinsko stanje), the court considered that the imposed fine was adequate and that the applicant would be able to pay it within the prescribed time-limit as “he undoubtedly ran a private legal practice and obviously had clients given that he had asked for adjournment of some of the hearings in order to attend the proceedings in his clients’ cases”. 15. On an unspecified date thereafter the applicant appealed. He maintained, in particular, that he had not given the said statement to the newspaper, which was confirmed by the author of the article himself. It was unacceptable that somebody be found guilty of defamation for submissions made in a criminal complaint filed against a public official. In addition, V.Š. himself had admitted that he had not allocated the eviction case file to another judge for two years, and that he, the applicant, was not allowed to prove the veracity of his criminal complaint, namely that by doing so V.Š. had enabled his brother’s significant unjust enrichment. 16. He further submitted that he had requested the exclusion of the first-instance court single judge dealing with the case, but that she had rendered the judgment nevertheless. She had also drawn conclusions about his financial status without verifying it. 17. He finally proposed that the judgment be quashed and that the previous first-instance judge be excluded in the re-trial proceedings. 18. On 10 March 2008 the High Court upheld the first-instance judgment in substance, endorsing its reasoning, and held that none of the other allegations made in the appeal could lead it to decide otherwise. 19. On an unspecified date thereafter the applicant paid the fine. 20. The average monthly income in Montenegro when the relevant domestic decisions were rendered was EUR 338 in 2007 and EUR 416 in 2008. Financial brokers had the highest incomes, these being on average EUR 770 in 2007 and EUR 854 in 2008. 21. On 3 October 2013 the application was communicated to the respondent Government. In their observations dated 17 January 2014 the Government informed the Court that on 27 April 2009 the Supreme Court, following a request for the protection of legality lodged by the Supreme State Prosecution, had quashed the judgment of the High Court rendered on 10 March 2008 and had ordered a re-trial. The impugned judgment had been quashed on the ground that the High Court had ruled only on the appeal submitted by the applicant’s representative, but had failed to rule on the appeal submitted by the applicant himself. On 7 September 2009, in the re-trial, the High Court had overturned the first instance judgment of 7 November 2007 and dismissed the criminal actions lodged against the applicant (odbija se optužba) as the criminal prosecution had become time-barred in the meantime. 22. In his observations of 27 February 2014 the applicant confirmed the above information. 23. Section 61 of the Enforcement Act (Zakon o izvršnom postupku; published in the Official Gazette of the Republic of Montenegro no. 23/04) provided that once the enforcement had taken place, the debtor could request the court to order a counter-enforcement and order the repayment of what he had paid, if the document on the basis of which the enforcement had been undertaken was quashed, overturned, annulled or ceased to be in force. This Act was repealed by the Enforcement Act 2011 on 27 September 2011.