CASE OF KOPRIVICA v. MONTENEGRO
Violation of Art. 10;Just satisfaction - reserved
David Thór Björgvinsson;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1948 and lives in Podgorica. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. 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. 8. 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. 9. 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. 10. 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 ....”. 11. 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. 12. 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. 13. 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. 14. 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. 15. On 5 June 2009 the Court of First Instance ordered the payment of the amounts awarded by the High Court. 16. 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. 17. 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. 18. By 14 October 2011 the applicant had paid to the plaintiff EUR 852.99 in total. 19. It would appear that as of March 2005 the founder of the magazine ceased to exist, leaving the applicant as the only remaining debtor. 20. The applicant’s pension between 2004 and 2008 ranged between EUR 170 and EUR 300 per month. 21. 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. 22. 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). 23. 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 tužba) 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. 24. The relevant provisions of the Constitution read as follows: “Everyone is entitled to freedom of expression .... Freedom of expression can be limited only by the right of others to dignity, reputation and honour ....” An Act ... cannot have a retroactive effect. Exceptionally, certain provisions of an Act can have retroactive effect, if required by the public interest .... “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 ...” 25. The Constitution entered into force on 22 October 2007. 26. 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. 27. 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. 28. This Act entered into force in November 2008. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. This Act entered into force in 2002. 35. 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. 36. 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. 37. By the same date thirteen decisions had been published in the Official Gazettes and in these thirteen constitutional appeals were accepted.