IVANOVIĆ AND DOO DAILY PRESS v. MONTENEGRO
Inadmissible
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
1. The applicants are Mr Željko Ivanović (“the first applicant”), a Montenegrin national who was born in 1962 and lives in Podgorica, and D.O.O. Daily Press (“the second applicant”), a publishing company with its registered office in Podgorica. They are represented before the Court by Mr B. Lutovac and M. Đukić, lawyers practising in Podgorica (Montenegro) and Novi Sad (Serbia), respectively. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant is a journalist and a co-founder and the executive director of the Montenegrin daily newspaper Vijesti. The second applicant is the publisher of the newspaper. 4. On 1 September 2007 Vijesti celebrated its 10th anniversary. After leaving the celebration venue the first applicant was assaulted in the dark and beaten up by three unidentified attackers. As a result of the assault he sustained a broken cheekbone (jagodična kost) and a number of haematomas and bruises. 5. Between 2 and 4 September 2007 Vijesti published several articles relating to the assault, some of them including the first applicant’s own comments. 6. In particular, on 2 September 2007 an article entitled “A club from Đukanović and the family” (Palica od Ɖukanovića i familije) was published: “[The first applicant] said that the former Prime Minister Milo Ɖukanović had sent his hellhounds (poslao svoje kerbere) yesterday morning to beat him up. [The first applicant] said that ‘those who rule Montenegro’ had congratulated Vijesti on its tenth anniversary by these means. ‘It is a greeting from those ruling Montenegro, and that is Milo Đukanović and his family, be it biological or criminal’, said [the first applicant...]. On Radio Crna Gora [he] told Ɖukanović not to send his people on an ambush in the dark but to put himself on the line (sam izađe na crtu) instead of backing out in this kind of situation (umjesto što u takvim situacijama spušta pogled). ... [The first applicant] considers that this was a warning to Vijesti to surrender (da polože oružje), and that there is an attempt to drown even the small islands of freedom in Montenegro, which make Đukanović nervous.” 7. The same day another article was published, entitled “We shall not be intimidated” (Neće nas uplašiti), signed by Vijesti’s editorial board (redakcija). It contained, inter alia, the following: “For Vijesti there is no dilemma that the assault against [its] colleague Ivanović, with his sharp criticism of reality here, is [not only] an attack on all those free-minded people gathered in Vijesti and around it, but also an attack on freedom of thought and speech in general. The motive is to silence Vijesti and all those, who unfortunately are not numerous, who refuse to consider transitional mud and crime as the best of all society. To intimidate all those who do not want to live in a State where the mafia and authorities are interwoven to such an extent that it is difficult to distinguish one from the other (isprepleteni do neprepoznatljivosti), where the political top and mafia bottom are often on the same level, where smuggling is the backbone (okosnica) of the value system, and honest work and righteousness (pravednost) are laughed at in grandiose cafes. The intention is to warn once again those who do not accept this, that the list of unsolved murders can go on indefinitely (sezati u nedogled). It is difficult to expect that the police in this case will go beyond its limits, blockades in mind and in organisation, and will solve the crime, arrest the attackers, identify (razobličiti) and imprison the instigators, those who ordered this. Even before Vijesti claimed that the Montenegrin police were managed from outside the police, the prosecution from outside the prosecution, the judiciary from outside the judiciary, that there was a parallel secret service, State Security or the National Security Agency, all the same. It is a Montenegrin reality and that is the real force, that is the weakness of the State (nemoć države). In any event, the objective responsibility for all that and for the assault against Ivanović lies with the regime headed for 17 years by Milo Ɖukanović, who rules it even now, regardless of form. He and his people, from the top to the bottom, are responsible for an atmosphere in which journalists, writers, and all those who dare to think and speak differently, get hurt. Vijesti has no dilemma about it and it will continue its uncompromising criticism of both the ambiance and people responsible.” 8. It was also mentioned that a few hours before the assault the telephone of one of the editors-in-chief of Vijesti had rung and that the person on the other end of the line had politely introduced himself as Milo Ɖukanović. 9. On 3 September 2007 an article entitled “Even the birds know that he is the boss” (I vrapci znaju da je kapo) was published in Vijesti, and contained the following statements by the first applicant: “The man who has four wars waged in the territory of ex-Yugoslavia on his conscience, an accomplice in politics which destroyed one country, killed hundreds of thousands of people and displaced millions of others, a person who is charged with organised crime and criminal association before the relevant investigative bodies of European countries, the boss who developed a criminal-financial octopus which is strangling (drži za vrat) Montenegro – that moral mountain of a man (gromada) is hurt, his honour harmed, and his mental anguish is such that only the courts can repair it (jedino sud može sanirati). ... I am ready for any court, even Ɖukanović’s, as I do not see anything new or any misdemeanour (prekršajno) in anything I said, and even the birds know that he is the boss of the family, be it biological or criminal, which rules Montenegro and decides on all things, including the most precious – human life. I invite him to try to prove his truth and defence on the public stage, and not through courts, prosecutors, criminals and his spokespeople. Because Ɖukanović needs to know that nothing lasts forever (ničija nije gorjela do zore). My mother and I, we wish his child all the best. We want him in the future, as an honest and honourable citizen, to enjoy and be free and safe in a just and fair society, confident that the system of evil and injustice created and established throughout Montenegro by his father – for which both I and much more my mother suffer today – will go to the dustbin of history.” 10. On 4 September 2007 an article entitled “Various kinds of pressure” (Raznovrstan repertoar pritisaka) was published in Vijesti, including the following statement by the first applicant: “These pressures came from the top of the State. Our family members were dismissed from work, threatened by anonymous calls, various inspections were sent to the company..., in the end they attempted to steal (otmu) the majority of stocks so that the daily could be edited as it suited Mr Ɖukanović. When all of this did not work out, the traditional methods were employed.” 11. On 6 September 2007 Mr M. Đukanović (hereinafter “the plaintiff”) instituted civil proceedings against the applicants, seeking 1,000,000 euros (EUR) for the damage caused by all of the above articles and statements by the first applicant contained therein. 12. The applicants submitted that all the most senior political and State officials, including the plaintiff, should be held objectively responsible for increased crime, including assaults on and even the murder of journalists (poslenika javne riječi), and that the impugned articles should be seen in that context. They further maintained that the statements at issue were value judgments, and that the plaintiff, as a politician, had to display a greater degree of tolerance. They proposed that the parties to the proceedings and a number of other people be heard, and that an expert witness assess the level of mental anguish allegedly suffered by the plaintiff. They also maintained that the amount sought was too high and was aimed at suppressing freedom of expression. The applicants submitted that the courts should take into account the context and circumstances in which the statements had been made and the articles published. They relied, inter alia, on Article 10 of the Convention and the Court’s case-law. 13. On 19 May 2008 the Court of First Instance (Osnovni sud) in Podgorica ruled partly in favour of the plaintiff, concluding that his honour and reputation had been harmed, and ordering the applicants jointly to pay the plaintiff EUR 20,000 in non-pecuniary damages and to publish the judgment in Vijesti at their own expense. In particular, the court found that the plaintiff’s honour and reputation had been harmed by the first applicant’s statements in the article “A club from Ɖukanović and his family”, and the contents of the article “Even the birds know that he is the boss”, which described the plaintiff and his family as criminals, and which associated him with organised crime and criminal association. The court relied on Articles 16, 20, 34, 35 and 36 of the Constitution in force at the time, sections 1 and 20 of the Media Act (see paragraphs 39-45 below), and Articles 8 and 10 § 2 of the Convention. 14. In particular, the court considered that freedom of the press and other forms of public information, and the right to dignity and personal rights had to be balanced. It held that “parts of the above articles” were not value judgments but factual information, susceptible to proof, which had not been previously verified or proved, aimed at discrediting not only the plaintiff but his private and family life too. By publishing the above texts, which contained inaccurate, unproved information, without prior verification, subsequent rectification, acceptance of a mistake or a public apology to the plaintiff, the first applicant had persisted in harming the plaintiff’s reputation. As the executive director of a news medium, the first applicant was especially expected to respect the rules when publishing information, particularly that which could be harmful to others. The above texts harshly (grubo) harmed the plaintiff’s honour and reputation, considerably overstepping the limits of criticism to be tolerated by a politician, especially given that the impugned articles did not criticise the plaintiff’s public work but put the plaintiff and his family in a criminal context. 15. The court further held that “the right of the media to publish negative information and criticism relating to politicians did not give [them] the right to violate fundamental human values, the protection of which was provided in respect of every citizen regardless of his/her being a public figure or not. ... Public officials could not have fewer rights than others as that would be a violation of the principle of equality, which was guaranteed by the Constitution.” 16. The first applicant’s allegations that he had made the impugned statements when he had been in a specific state after the assault were dismissed as unfounded. The court also refused other proposed evidence as unnecessary. 17. In assessing the amount of damages the court took into account the importance of the plaintiff’s honour and reputation, the fact that several articles had been published in a daily newspaper which had a high circulation (visokotiražan), traditional understanding of Montenegrin society of moral human values, as well as the criminal context in which both the plaintiff’s personality and his family had been put. 18. Both the plaintiff and the applicants appealed against the decision. 19. On 30 September 2009 the High Court (Viši sud) in Podgorica held that only the following statements harmed the plaintiff’s honour and reputation: “Đukanović had sent his hellhounds to beat [the first applicant] up”; “it is a greeting from those ruling Montenegro, and that is Đukanović and his family, be it biological or criminal”; “the boss who developed a criminal-financial octopus which is strangling Montenegro”, and “he is the boss of the family, be it biological or criminal, which rules Montenegro and decides on all things, including the most precious – human life”. It further held that instead of proving the veracity of the statements the applicants had repeated them. They had thereby misused freedom of expression, given that by “exercising it one could not insult others and harm their honour, reputation and dignity”, which was also prescribed in Article 10 § 2 of the Convention. 20. The court took into account the Court’s opinion that politicians should display a greater degree of tolerance towards criticism, but considered that the above statements overstepped the limits provided for by freedom of expression and the plaintiff’s obligation in that regard, especially given that the applicants had not refrained from mentioning the plaintiff’s family in the same insulting context. 21. It also considered that the compensation of EUR 20,000 was too high and reduced it to EUR 10,000 jointly. 22. Lastly, the court held that the other articles and statements, especially the text “We shall not be intimidated”, criticised the situation in Montenegrin society, and represented value judgments in respect of which no damages should be awarded. The court held that the applicants’ arguments in that regard, submitted in their appeal, were well-founded, which influenced the amount of the damages awarded. The amount was also influenced by the circumstances in which the texts had been written and the statements made, but the court considered that these factors did not justify the publication of untrue information and its transmission through the media, but rather represented its misuse. According to the High Court, the Convention and the Court did not protect that kind of information and statements. 23. This decision was served on the applicants on 17 October 2009. 24. On 4 March 2016 a bailiff (javni izvršitelj) issued an enforcement order on the basis of which the plaintiff collected EUR 16,113.79 from the second applicant’s account. The amount was increased due to the accrued interest. 25. On 31 October 2007 the State prosecutor (Osnovni državni tužilac) filed an indictment against R.P. for violent behaviour, and M.B. for violent behaviour and inflicting serious bodily harm on the first applicant. 26. On 15 January 2008 the Court of First Instance in Podgorica found R.P. and M.B. guilty, on the basis of their confessions, and sentenced them both to four years’ imprisonment. It also established that they had been assisted by “a certain Miki from Sarajevo”. On 16 May 2008 the High Court in Podgorica reduced their sentences to one year. 27. On 5 March 2012 the first applicant’s lawyer sent a letter to the Supreme State Prosecutor’s Office submitting that R.P. and M.B. had been convicted contrary to all the evidence, and that even if they had been involved in the assault, there had been at least two more people involved. He requested that the investigation be reopened in order to identify the others involved. 28. Below is further information considered relevant by the parties. 29. In spring 2004 a publisher and the director of Dan, a pro-opposition daily newspaper, was killed in the street. 30. In May 2007 a group of individuals, including the first applicant, organised a petition and issued a press release opposing the award of a regional peace prize to the plaintiff. He was nevertheless awarded the prize. 31. The first applicant’s gross income was 34,118.84 euros (EUR) in 2008 and EUR 36,808.88 in 2009. The second applicant’s profits were EUR 560,889 in 2008 and EUR 13,967 in 2009. 32. Between November 2007 and February 2014 there were eighteen separate attacks (involving the planting of explosive devices, physical assaults, threats, car arson and the stoning of premises) against journalists or premises of Vijesti. In spite of numerous measures undertaken by the relevant authorities (questioning of various individuals, obtaining camera footage, checking telephone communications and polygraph questioning) thirteen of these attacks remain unsolved to date. In five other cases the perpetrators were identified, found guilty in criminal or misdemeanour proceedings, and either fined, given a suspended sentence, or sentenced to between two and nine months in prison. 33. In December 2014 one person was found guilty of coercion and jeopardising the safety of a freelance journalist, and was sentenced to four months in prison. In March 2015 five other individuals were found guilty of violent behaviour against a journalist of Dan and were sentenced to between eleven and fifteen months in prison. 34. Between January 2012 and October 2015 the domestic courts ruled in eight cases of an alleged harming of honour and reputation, in six of which respondent parties were journalists and/or daily newspapers and/or companies publishing daily newspapers. The courts dismissed seven of them, and in one ruled partly in favour of the claimant (an individual), awarding him EUR 2,500 of the EUR 9,000 claimed against a journalist/writer. 35. On several occasions in 2013 and 2014 the Media Development Investment Fund urged the plaintiff to refrain from provocative language when speaking about Vijesti. 36. On 31 January 2014 Human Rights Action/Akcija za ljudska prava, a Montenegrin NGO, issued a report entitled “Prosecution of attacks on journalists in Montenegro”. The report mentions thirty cases of assaults, threats, arson and so forth against various journalists (including the assault against the first applicant), human rights campaigners and a writer. In one incident a person (the writer’s driver/bodyguard) was murdered. All of the incidents took place between 27 May 2004 and 3 January 2014. According to the report, the murders of the Dan editor-in-chief and the writer’s bodyguard have never been resolved, some prosecutions became timebarred, and in some cases where the perpetrators were identified their motives and those who ordered the attacks remained unknown. The report also considered the judgments issued in respect of the applicants to be in breach of Article 10. 37. Between 2012 and 2015 reports were issued by Freedom House (in 2012, 2013 and 2015), the US State Department (in 2012 and 2013) and the UN Human Rights Council (in 2014), which noted assaults and threats against journalists in Montenegro, the pressure they faced, the limited investigations and the consequent lack of accountability. 38. In October 2015 the Global Investigative Journalism Network awarded its prize to the Organised Crime and Corruption Reporting Project “for [its] series ‘Unholy Alliances’ on Montenegro as a mafia state”, which “exposed how [the plaintiff] and his family bank [were] at the centre of an unholy alliance of government, organised crime and business.” 39. Article 16 of the Constitution in force at the time provided that everybody was obliged to respect the rights and freedoms of others, and that any abuse (zloupotreba) of those rights or freedoms was considered anticonstitutional and subject to punishment. 40. Article 20 guaranteed the inviolability of an individual’s physical and psychological integrity, privacy and personal rights, and his or her dignity and safety. 41. Article 34 provided, inter alia, for freedom of expression. 42. Article 35 provided for freedom of the press and other media, as well as the right of individuals (građani) to publicly express their opinions through the media (u sredstvima javnog obavještavanja). 43. Article 36 provided for the right to reply and correction of incorrect published data or information, as well as the right to compensation for damage caused by the publication of untrue data or information. 44. Section 1 provides that the media in Montenegro are free, and that freedom of information is guaranteed in accordance with the standards provided in international human rights texts (UN, OSCE, Council of Europe, EU). It further provides that the Act should be interpreted and applied in accordance with the principles of the Convention and the Court’s case-law. 45. Section 20 provides that, unless otherwise provided by the Act, the founder of the medium is responsible for the content it publishes. Should the media publish content which violates the statutorily protected interest of a person to whom the relevant information refers or insults someone’s honour or integrity, or disseminate untrue allegations about someone’s life, knowledge or competencies, the person concerned is entitled to lodge a compensation claim against the author and the founder of the medium. 46. Section 16 provided that everyone had to refrain from actions which could cause damage to others. 47. Under Articles 199 and 200, inter alia, anyone who had suffered mental anguish as a consequence of a breach of 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 satisfaction.