CASE OF FILIPOVIC v. SERBIA
Violation of Art. 10;Not necessary to examine Art. 6;Just satisfaction dismissed (out of time)
5. The applicant was born in 1960 and currently lives in Babušnica, Serbia. At the relevant time, he was employed as a tax inspector and has, as of 2000, been the Vice President of the local branch of the Demo-Christian Party of Serbia (Demohrišćanska stranka Srbije). 6. On 21 October 2002 the Municipal Court (Opštinski sud) in Babušnica convicted the applicant of criminal defamation (kleveta) and ordered him to pay a fine in the amount of 6,000 Yugoslav Dinars (“YUD”) plus an additional YUD 25,000 in costs. 7. In the operative part of this judgment the court established: (i) that on 8 March 2001 the applicant had taken part in a “public gathering” (javni skup) in the Babušnica Municipal Hall; (ii) that this “gathering” was attended by the Deputy Prime Minister of the Republic of Serbia, the Deputy Minister for Justice and Local Self-Government, as well as more than 80 municipal councillors and other leading local figures; and (iii) that on this occasion the applicant had publicly stated that Mr P.J., at that time the Mayor of Babušnica, “was not the right person for this job”, given that he had already “embezzled 500,000 German Marks” (jer je proneverio 500 000 DM). The court then concluded that this statement was “untrue” and, as such, capable of “damaging the reputation and honour” of Mr P.J., a well-known and respected local businessman and public servant (društveno-politički radnik), and proceeded to find the applicant guilty as charged. 8. In its reasoning, inter alia, the Municipal Court relied on two witnesses who, “though members of different political parties”, had heard the applicant state that the Mayor had “embezzled” 500,000 German Marks” in 1996, as director of a major State-owned company, but dismissed, as unconvincing, the testimony of at least four others who had stated that the applicant had said that the Mayor had “deprived” (oštetio) the State of the same amount in revenue. The court further held that the official minutes of the meeting in question, containing language to the same effect, were of “no greater probative value” because they were composed by a person who was himself merely a “witness”, and, finally, that a criminal complaint filed against the Mayor for tax evasion in 1996 had not ultimately resulted in his conviction (see paragraphs 16 and 17 below). 9. On 31 December 2003 the District Court (Okružni sud) in Pirot rejected the applicant's appeal and, on the same facts, found him guilty of the crime of insult (uvreda), rather than criminal defamation (kleveta), holding that the meeting at issue could not be deemed a “public gathering” within the meaning of the Serbian Criminal Code. The sentence imposed by the Municipal Court, however, was upheld in its entirety and thereby became final. 10. On an unspecified date in 2004, the Mayor filed a separate civil compensation claim with the Municipal Court in Babušnica, seeking 300,000 Serbian Dinars (“RSD”) for the mental anguish suffered due to the applicant's statement referred to above. 11. On 23 September 2004 the Municipal Court ruled partly in favour of the Mayor, without having heard him in person, and, in so doing, ordered the applicant to pay RSD 120,000 in compensation, together with default interest, plus costs in the amount of RSD 33,400. At that time, this was equivalent to approximately 2,077 Euros (“EUR”), or, in more concrete terms, the applicant's total net salary for the previous six months. 12. In its reasoning, the court relied on the applicant's criminal conviction, as well as the findings of the criminal courts, and held that the Mayor's reputation had indeed been harmed, causing him serious and continuing mental anguish. The court noted that the plaintiff in this case was both a Mayor and a leading local businessman and concluded that adequate financial compensation was called for. 13. On 20 December 2004 the District Court in Pirot rejected the applicant's appeal and, in so doing, fully accepted the reasoning of the Municipal Court, whose judgment thereby became final. The applicant received a written copy of the District Court's decision on 24 January 2005. 14. On 9 March 2005 the applicant paid a total of RSD 153,400 in respect of the compensation awarded against him, the interest accrued and the costs of the civil proceedings. 15. According to the official minutes of the meeting held in the Babušnica Municipal Hall on 8 March 2001, the Deputy Prime Minister stated that the purpose of this meeting was to “asses the functioning of the municipality” as a whole. He invited the participants to openly share their “critical views” in this respect and explained that, if needed, the Government would consider imposing specific measures aimed at tackling any serious issues. 16. The minutes, thereafter, reflected that the applicant had accused the Mayor of not being “the right person for the job” and that “this ... country deserved someone better”. He then added that in 1996, in his capacity as a tax inspector, he had found “numerous irregularities” with respect to “Lisca”, a major State-run company headed by the Mayor, and that he had thus filed a criminal complaint, alleging that the Mayor had “deprived the State of 500,000 German Marks” in revenue. 17. The applicant provided the Court with the said criminal complaint, dated 24 June 1996, as well as three separate decisions issued by the Public Revenue Directorate (Republička uprava javnih prihoda): two of 22 August 1996 and 2 September 1996, respectively, ordering “Lisca” to pay its overdue taxes, and the third, of 25 December 1996, fining the company for its failure to do so. 18. Article 154 defines different grounds for claiming civil compensation. 19. Article 172 § 1 provides that a legal entity, which includes the State, is liable for any damage caused by one of “its bodies”. 20. Articles 199 and 200, inter alia, state that 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. 21. Articles 191 and 205 provide, inter alia, that a domestic court may decide to reduce the compensation award taking into account, ex officio, the specific financial circumstances of the respondent. 22. Article 12 § 3 provided that a civil court was bound by a final decision of a criminal court in respect of whether or not a crime had been committed, as well as the criminal responsibility of the defendant. 23. A civil court dealing with a compensation claim shall be bound by the criminal court's assessment of the defendant's criminal responsibility. It “shall not [however] be bound” by any of its other findings (Rev. 1089/90) and shall be entitled to “assess independently” the defendant's civil liability (Gž. 1316/67). 24. Articles 3 § 3, 413, 415, 417 and 418 provide that the Public Prosecutor shall, ex officio or in response to a party's specific proposal, within a period of three months, have the right to lodge a Request for the Protection of Legality against a final civil court decision, if it transpires that the decision in question was “based on the parties' unlawful dispositions” (nedozvoljeno raspolaganje stranaka), i.e. those undertaken in breach of the “binding provisions of domestic law, public order or the rules of morality” (prinudni propisi, javni poredak i pravila morala). Should the Public Prosecutor refuse to lodge a request of this sort within the prescribed deadline, the party who had urged him to do so shall, within thirty days, have the right to file its own Request for the Protection of Legality with the Supreme Court. 25. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 §§ 1 and 5 of the 2004 Act, however, provides that the 1977 Act shall remain in force, inter alia, in respect of all proceedings where the first instance judgment was rendered prior to 23 February 2005 and, further, that any pending Requests for the Protection of Legality shall be dealt with on the basis of the 1977 Act. 26. Article 25 of the Serbian Constitution (Ustav Republike Srbije) published in the Official Gazette of the Socialist Republic of Serbia - OG SRS - no. 1/90 provided as follows: “Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law. Such damages shall be covered by the Republic of Serbia or the public authority [in question].” 27. This Constitution was repealed on 8 November 2006, which is when the new Constitution, published in OG RS no. 98/06, entered into force. 28. The substance of Article 35 § 2 of the “new” Constitution corresponds, in its relevant part, to the above-cited text of the previous Article 25. 29. The relevant provisions concerning the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 22-25, 19 September 2006).