CASE OF MILISAVLJEVIĆ v. SERBIA
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant, Ms Ljiljana Milisavljević, is a Serbian national who was born in 1966 and lives in Belgrade. 6. The applicant was a journalist employed at Politika, a major Serbian daily newspaper. In September 2003 she was requested by the editorial board to write an article about Ms Nataša Kandić. 7. Ms Nataša Kandić is a Serbian human rights activist primarily known for her activities in investigating crimes committed during the armed conflicts in the former Yugoslavia, including those crimes committed by Serbian regular and irregular forces. She was also recognised as one of the most vocal advocates for full cooperation of the Yugoslav and later Serbian authorities with the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”). 8. At the time relevant to this case, between 40% and 64% of the Serbian population considered the ICTY to be a major security threat to the Republic of Serbia. Some 54% of the population was against cooperation with the ICTY, which would include arrests and transfers of Serbian suspects to this institution. In 2003, the ICTY’s assessment of Serbia’s cooperation with that court was that it was “neither full nor proactive”. The level of cooperation was further negatively influenced by the assassination of the Serbian Prime Minister Dr Zoran Đinđić in March 2003, a major political figure open to full cooperation with the ICTY. Ms Kandić herself came under attack by a significant portion of the Serbian political elite and general population. As a consequence, she was involved in several incidents. 9. The applicant’s article on Ms Kandić appeared in Politika on 7 September 2003. The integral translation of the impugned article, titled “The Hague Investigator”, reads as follows: “‘Even my son blames me for protecting everybody but the Serbs’, says the director of the Fund for Humanitarian Law. Ms Nataša Kandić, founder and Executive Director of the Humanitarian Law Centre for Serbia, Montenegro, and Kosovo and Metohija, a non-governmental organisation aimed at promoting human rights for minorities, last week, again, defended herself ‘from the Serbian patriotism surge’. On the occasion of the International Day of the Disappeared commemoration, at the gathering of the Association of Families of Missing and Kidnapped Persons in Kosovo and Metohija organised in the centre of Belgrade, following a short argument she slapped one of the participants. After this incident the Belgrade police submitted a request for the initiation of prosecution proceedings against her, and the Association of Families of the Missing lodged a lawsuit, demanding that she pay 30,000,000 Serbian dinars (RSD) for the insult to the families of those kidnapped and killed. Recently our media have also reported that this ‘prominent advocate of human rights and democratic reform in Serbia’ was awarded the annual Central European and Eurasian Law Initiative Award (CEELI) from the American Bar Association on 9 August during the ABA Annual Meeting luncheon in San Francisco. Former winners of this award were Petar Stoyanov from Bulgaria, Emil Constantinescu from Romania, Vaclav Havel from the Czech Republic, Stjepan Mesić from Croatia ... It was also reported that at the beginning of May the American magazine Time published a list of thirty-six individuals dubbed the European heroes, among which was Nataša Kandić, too. The Serbian campaigner for the truth on war crimes, a lonely voice of reason in Serbia or the Soros mercenary, the one who was named by all the banished FRY spies, has won many awards, including the Human Rights Watch Award, but none of them were awarded to her in Serbia. Nataša Kandić provokes stormy reactions wherever she appears. While the West lauds and praises her, in Serbia she is spoken about with contempt and accused of anti-Serbian politics. Most of all they blame her for never pursuing the crimes against Serbs but exclusively dealing with those committed by Serbs against other ethnicities. Although she has been called a witch and a prostitute and is permanently under threat (this year she has also had to cancel her appearance at a local TV station owing to a bomb threat), she says: ‘This is simply the part of this job. I don’t think that they hate me, only my message’. Nevertheless, she once made a public complaint: ‘Even my son has accused me of protecting everybody except the Serbs.’ Although later, she adds, she heard him defending her concern for the weak. Nataša Kandić was born in 1946 in Topola, to her father Radoslav and mother Vera. In 1966 she went to study in Great Britain and upon her return she enrolled in the Faculty of Philosophy at the University of Belgrade. She participated in the 1968 student demonstrations. In the 1970s she started working in the Belgrade municipality of Palilula. Afterwards she worked in the city trade union. During the mid-1990s she went to the Centre for Antiwar Action to work as a technical secretary, but before long she left it after a conflict with Ms Vesna Pešić. With a group of like-minded people she founded the Humanitarian Law Centre at the beginning of 1993. A year later, on the invitation of Ms Jeri Laber, the Helsinki Watch Executive Director, she left for New York. Upon discussion with top people at the Hague Tribunal, the Humanitarian Law Centre took charge of its work in respect of the socalled Serbian crimes against Muslims in Bosnia and Herzegovina, as well as violations and abuses of Muslim and Croatian minority rights in the FRY. That is how this organisation became the [ICTY] ‘investigator’. Starting from the second half of the 1990s the Centre became involved in the Kosovo and Metohija issues. During the NATO campaign she frequently travelled the Belgrade-Kosovo and Metohija-Montenegro routes. Her email messages sent via the Internet to foreign friends and collaborators are the evidence of her time and work in Kosovo and Metohija. With Lazar Stojanović, the Plastični Isus (‘Plastic Jesus’) director, she has a son Stefan, who lives in New York and is involved in graphic animation.” 10. On 10 November 2003 Ms Kandić started a private prosecution against the applicant. She claimed that the entire piece had been written with the intent of belittling her in the eyes of the public, to present her as a traitor to Serbian interests and as a “paid servant of foreign interests and a prostitute who sells herself for money”. She further claimed that the points introduced in the article were maliciously misrepresented, and that the article contained untruths and blatant insults. She explicitly refused to lodge any civil compensation claim within these proceedings. 11. The applicant, in her defence, stated that she was not expressing her own opinion of Ms Kandić, whom she did not intend to insult, and that she had written the entire article on the basis of the documentation of other magazines. She put the citations within quotation marks, but she omitted them when she was not literally citing but paraphrasing (“ono što nije stavila pod navodnike predstavljaju navode koji nisu citati, već ih je prepričavala iz drugih listova”). She provided details as to what phrases were taken from which articles and magazines, including from which article and magazine she had taken the phrase that Ms Kandić had been called a witch and a prostitute. 12. On 1 September 2005, after a remittal, the First Municipal Court (Prvi opštinski sud) in Belgrade found that the applicant had committed a criminal offence of insult when having stated for Ms Kandić “although she has been called a witch and a prostitute” and gave her a judicial warning. The court established that the impugned phrase had been indeed previously published in another article by another author in a different magazine. However, the applicant did not put it in quotation marks which meant that she agreed with it, thus expressing her opinion. The court concluded that there was therefore an intention to insult Ms Kandić. In view of no aggravating circumstances and a number of mitigating ones (the applicant had a clean record, was employed and of mature age (u zrelom dobu)), she was given a mere judicial warning (sudska opomena), on the grounds of Articles 41 and 59 of the General Criminal Code (see paragraph 18 below). No prison sentence or fines were imposed. 13. On an unspecified date thereafter the applicant appealed. She reiterated that the impugned words were not her own opinion, but an opinion of another author. The fact that she wrote also on the negative attitudes towards the private prosecutor and her work could not and must not make her, the applicant, criminally liable. She also submitted that such an attitude towards the freedom of press could have long-reaching consequences. 14. On 5 July 2006 the Belgrade District Court (Okružni sud) upheld the first-instance decision endorsing the reasons given therein. 15. In separate proceedings, on 2 October 2006 the Belgrade First Municipal Court ordered the applicant to pay Ms Kandić RSD 33,125 (around 386 euros (EUR)) in respect of costs and expenses. The applicant did not appeal against that decision. 16. The applicant submitted in her observations that she had been later discharged from Politika and that “her conviction [...] appear[ed] to have been the cause [thereof]”.