CASE OF TEŠIĆ v. SERBIA
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić
5. The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”). 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 7. On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action (privatna krivična tužba) filed on 10 March 2003, found the applicant guilty of criminal defamation (kleveta) and sentenced her to six months’ imprisonment, suspended for a period of two years (uslovna osuda; see paragraph 35 below). Ms SN, a journalist, was also found guilty of the same offence and sentenced identically. 8. The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter’s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant’s and article’s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge. 9. On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court’s decision on 19 July 2006. 10. On 16 August 2006 the applicant filed a request for the reopening of these proceedings. 11. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant’s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court’s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 15 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor’s Office had informed the applicant of its formal rejection based on the applicable statute of limitation. The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004. 12. On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court’s judgment of 25 March 2011. The applicant was served with the Appeals Court’s decision on 21 December 2011. 13. On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending. 14. On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article. 15. On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all. 16. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB’s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below). 17. On 16 April 2009 the District Court in Novi Sad rejected the applicant’s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court’s decision on 30 April 2009. 18. The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded. 19. On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316B; and Filipović v. Serbia, no. 27935/05, 20 November 2007). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below. 20. On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below). 21. On 9 December 2009 the Municipal Court rejected the applicant’s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal. 22. On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings. 23. On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant’s complaint concerning her medical situation. 24. The applicant was apparently informed of this decision in the Constitutional Court’s letter of 21 December 2011, and received it by 23 April 2012 at the latest. 25. On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007. 26. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant’s pension were to be transferred to the creditor’s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below). 27. The said deductions to the applicant’s monthly income began as of 8 August 2009. 28. In May 2012 the applicant’s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live. 29. By 30 June 2013 the applicant had paid a total of RSD 496,471.10, i.e. approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years (see paragraphs 44-50 below). 30. The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery. 31. The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it. 32. On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper’s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e. approximately EUR 4,120 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal. 33. The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities.