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SECOND
SECTION
CASE OF BODROZIĆ AND VUJIN v. SERBIA
(Application
no. 38435/05)
JUDGMENT
STRASBOURG
23
June 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of BodroZić and
Vujin v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38435/05) lodged with the
Court against the State Union of Serbia and Montenegro under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by two Serbian
nationals, Mr Zeljko BodroZić and Mr Vladislav Vujin (“the
applicants”), on 13 October 2005. From 3 June 2006,
following Montenegro's declaration of independence, Serbia remained
the sole respondent in the proceedings before the Court.
- The applicants, who had been granted legal aid, were
represented by Mr V. Lipovan, a lawyer practising in Kikinda. The
Government of the State Union of Serbia and Montenegro and,
subsequently, the Government of Serbia (“the Government”)
were represented by their Agent, Mr S. Carić.
- The
applicants alleged a violation of their right to freedom of
expression.
- On
29 August 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1970 and 1966 respectively and live in
Kikinda.
- The
applicants are journalists and were employed by the local weekly
newspaper Kikindske.
- On
9 April 2004 the first applicant published an article criticising
several criminal convictions he and another journalist had incurred
for defamation. The article was entitled 'They have not punished us
much for what we are' ('Malo su nas kaznili, kakvi smo') and,
in so far as relevant, read as follows:
“Where will our souls go, we wonder. Are we
Superhiks [the most prominent villain from the 'Alan Ford'
comic book] of Kikinda, who take from the poor and give to the
rich? Are we arrogant spendthrifts who waste money belonging to all
Kikinda citizens, so that poor people have to pay our fines for
offensive writing? Has the judge D.K.... punished us too mildly and
shouldn't he have satisfied the request of the lawyer S.K. and
deservedly ripped us off to the tune of 150,000 dinars? But couldn't
our prosecutor, who is surely not a blonde, but is being whistled at
by workers on strike, have asked for more, since [another column in
the K. newspaper] ruined his reputation acquired over decades, and in
particular over the past year or two, when he so 'skilfully' drafted
dismissals to all the [']non-workers['] and the opposition from [a
local factory]? And what should the citizens who finance our public
company do and think? Could they also wonder who gave us the right to
write insulting texts so that the judges of Kikinda must punish
us?... Do we have the right to deny that people are tired of such a
behaviour of ours...? Do we have the right to deny our fellow
citizens their wish for a quiet life, free of stress and various
court proceedings? Do we have a soul, we wonder out loud, and if we
do, where will it go after we've prepared another scandal? We should
be ashamed of ourselves.”
- In
the same issue, the second applicant was the editor of the page
entitled 'Amusement', consisting of anagrams, jokes, a crossword and
a horoscope. In the top middle section of the page there was a photo
of a blonde woman in her underwear, next to which there was a text,
which, in its relevant part, read as follows:
“JPICK and the manager were
visited by a blonde the other day. For that occasion the blonde was
whistled at by the workers who were not on strike. And she wasn't
even a lawyer...”
On
the left of the photograph, there was a small box containing three
anagrams, the first of which was an anagram of S.K.'s name.
- Shortly
after publication of the above, S.K. instituted private criminal
proceedings for insult against the applicants in the Kikinda
Municipal Court.
- On
14 February 2005 the court convicted the applicants of insult. The
court fined each of them 12,000 dinars (RSD, approximately EUR 150),
ordering them jointly to pay S.K. another RSD 16,000 (approximately
EUR 200) in respect of the costs of the proceedings.
- In
its judgment, the first-instance court defined insult as a statement
or an action objectively humiliating to a certain individual,
constituting an attack on his or her honour. Acknowledging that S.K.
was a public figure, the court explained that under domestic law an
action done by way of a joke was not a criminal offence as long as
that joke did not overstep acceptable boundaries and become
insulting. The applicants must have known that S.K. considered their
articles insulting, since they had previously been convicted of using
identical terms about him. The court took particular note of the fact
that the applicants mentioned S.K. directly and indirectly on several
different pages of the same newspaper, and concluded that S.K. had
proved that those texts had insulted him just by instituting the
private criminal proceedings. In particular, the court held as
follows:
“Such writing by the defendants demonstrates the
intention to demean the private prosecutor [S.K.]. This is so because
it is clear that the defendants, in different ways and in different
sections [of the newspaper], compared the private prosecutor to a
female, which comparison is objectively insulting in society. Namely,
in our mentality it is insulting to feminise a man, and jokes about
blondes are not in the least flattering, because they portray blondes
as stupid people subject to mockery.”
- On
appeal, on 4 May 2005 the Zrenjanin District Court upheld the
first-instance judgment and its reasoning.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Constitution of the Republic of Serbia
2006 (Ustav Republike Srbije; published in the Official
Gazette of the Republic of Serbia – OG RS – no. 98/06)
read as follows:
Article 170
“A constitutional appeal may be lodged against
individual decisions or actions of State
bodies or organisations exercising delegated public powers which
violate or deny human or minority rights and freedoms guaranteed by
the Constitution, if other legal remedies for their protection have
already been exhausted or have not been prescribed.”
14. The
Criminal Code of the Republic of Serbia (Krivični
zakon Republike Srbije;
published in OG RS nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86,
51/87, 6/89, 42/89, 21/90, 16/90, 49/92, 23/93, 67/93, 47/94, 17/95,
44/98, 10/02, 11/02, 80/02, 39/03 and 67/03), in so far as relevant,
reads as follows:
Article 93
“1. Whoever insults another shall be
fined or punished by imprisonment not exceeding three months.
2. Whoever commits an act described in [the above]
paragraph ... through the press ... or at a public meeting shall be
fined or punished by imprisonment not exceeding six months.”
Article 96
“1. ... [no one] ... shall ... be punished for
insulting another person if he [or she] does so in a scientific,
literary or artistic work or a serious critique, in the performance
of his [or her] official duties, his [or her] journalistic
profession, as part of a political or other social activity or in
defence of a right or of a justified interest, if from the manner of
his [or her] expression or other circumstances it is clear that there
was no [underlying] intent to disparage.
2. In situations referred to above, ... [the defendant]
... shall not be punished for claiming or disseminating claims that
another person has committed a criminal offence prosecuted ex
officio, even though there is no final judgment to that effect
... , if he [or she] proves that there were reasonable grounds to
believe in the veracity of ... [those claims] ...”
- The
General Criminal Code (Osnovni
krivični zakon;
published in the Official Gazette of the Socialist Federal Republic
of Yugoslavia - OG SFRY - nos. 44/76, 36/77, 34/84, 37/84, 74/87,
57/89, 3/90, 38/90, 45/90, 54/90, the Official Gazette of the Federal
Republic of Yugoslavia - OG FRY - nos. 35/92, 37/93, 24/94, 61/01 and
OG RS no. 39/03), in so
far as relevant, reads as follows:
Article 39
“... 3. If the fine cannot be collected, the
court shall order a day of imprisonment for each 200 dinars of the
fine, provided that the overall term of imprisonment does not exceed
six months.
4. If the convicted person pays only a part
of the fine [imposed], the rest shall ... be converted into
imprisonment, and if the convicted person [subsequently] pays the
remainder of the fine, his [or her] imprisonment shall be
discontinued.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that their right to freedom of expression had
been violated, contrary to Article 10 of the Convention, which reads
in its relevant part as
follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
protection of the reputation or rights of others ...”
A. Admissibility
- The
Government invited the Court to reject the application for
non-exhaustion of domestic remedies. In particular, they submitted
that the applicants had failed to lodge an appeal with the
Constitutional Court under Article 170 of the new Serbian
Constitution.
- The
applicants contested that argument, claiming that a constitutional
appeal may not be regarded as a remedy they needed to exercise, since
the Constitutional Court had been operational only since late 2007,
whereas they had lodged their application with the Court in 2005.
- The
Court has already held that this constitutional remedy could not be
deemed effective within the meaning of its established case-law under
Article 35 § 1 of the Convention (see Cvetković v.
Serbia, no. 17271/04, § 42, 10 June 2008), at the very least
as regards applications lodged with it before 24 November 2007. It
finds no reason to depart from such a conclusion in the present case
and therefore dismisses the Government's objection.
- The Court further notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The Government's submissions
- The
Government submitted that the article was one in a series of articles
published by the applicants concerning S.K. In respect of its
content, the Government submitted that “comparison of men to
women, especially to blonde ones, constituted an attack on the
personal integrity and dignity of men, as understood in the social
environment which prevails in the respondent State” (“poređenje
muškarca sa Zenama, naročito plavušama,
predstavlja napad na lični integritet i dostojanstvo muškarca,
prema preovlađujućem shvatanju društvene sredine
tuZene”). By so doing, the applicants had overstepped the
limits of permissible criticism of S.K. and the domestic courts had
correctly found that the language used in the first applicant's
article as well as in the second applicant's anagram had been
offensive and damaging to S.K.'s reputation. Moreover, since there
had been no general interest in the applicants' texts, their sole
purpose had been to offend S.K.
- Unlike
the domestic courts, the Government did not characterise S.K. as a
public figure, submitting that he had been well known as a lawyer
only to the inhabitants of the small town of Kikinda. However, given
the special position of lawyers in the administration of justice, the
Government claimed that it had been necessary to prosecute the
applicants for mocking S.K., since further offensive articles about
him might have restricted his choice of clients in future cases.
2. The applicants' submissions
- The
applicants submitted that both the domestic courts and the Government
had misunderstood the object of their writings. Namely, S.K. was
representing the director of a large local factory which had become
insolvent. In the first text which the applicants published in this
connection, they mentioned that the factory workers whistled at the
sight of the management accompanied by S.K., “even though he
was not a blonde”. In that way, they wished to address
humorously the serious unemployment issues of the factory's workers.
It appears from the applicant's submissions, although they provided
no documents in support, that S.K. had instituted one or more
criminal proceedings against them on account of this first text and
that the domestic courts had convicted the applicants of insult.
- The
applicants further argued that the object of the texts resulting in
their present conviction was a satirical criticism of the courts for
imposing absurd criminal sanctions on journalists, who had merely
sought to provoke public reactions to the economic events in their
town.
- Lastly,
the applicants agreed with the domestic courts that S.K. had been a
public figure and that his threshold of acceptable criticism should
therefore be higher than that of a private individual. It is true
that he was known only to the population of Kikinda but, given that
the newspaper which had published the articles had also been local,
the notion of a “public figure” should be interpreted
accordingly.
3. The Court's assessment
(a) “Prescribed by law”
- It
was not disputed that the applicants' conviction for insult amounted
to an “interference” with their right to freedom of
expression and that it was “prescribed by law” under
Article 93 of the Criminal Code as worded at the material time (see
paragraph 14 above).
(b) “Legitimate aim”
- It
was also common ground this interference with the applicants' rights
pursued the legitimate aim of the protection of the rights of others,
namely the reputation of S.K. What remains to be established is
whether the interference was “necessary in a democratic
society”.
(c) Necessary in a democratic society”
- The
Court reiterates that freedom of expression, as secured in paragraph
1 of Article 10, constitutes one of the essential foundations of a
democratic society. Subject to paragraph 2, it is applicable not only
to “information” or “ideas” which are
favourably received or regarded as inoffensive, but also to those
which offend, shock or disturb (see, among many other authorities,
Lepojić v. Serbia, no. 13909/05, § 73, 6 November
2007, and Filipović v. Serbia, no. 27935/05, § 53,
20 November 2007).
- The
Court would further emphasise the essential function which the press
fulfils in such a society. Although the press must not overstep
certain bounds, particularly in respect of the reputation and rights
of others, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities –
information and ideas on all matters of public interest. Journalistic
freedom also covers possible recourse to a degree of exaggeration, or
even provocation (see Dalban v. Romania [GC], no. 28114/95,
§ 49, ECHR 1999 VI).
- It is in the first place for the national authorities
to assess whether there is a “pressing social need” for a
restriction on freedom of expression and, in making that assessment,
they enjoy a certain margin of appreciation (see Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and
36448/02, § 45, ECHR 2007 ...). In cases concerning the
press, the State's margin of appreciation is circumscribed by the
interests of a democratic society in ensuring and maintaining a free
press. The Court's task in exercising its supervisory function is to
look at the interference complained of in the light of the case as a
whole and to determine whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”
(see Vogt v. Germany, judgment of 26 September 1995, Series A
no. 323, pp. 25-26, § 52; Jerusalem v. Austria, no.
26958/95, § 33, ECHR 2001-II).
- In
the instant case, the Court takes note of the complex factual
background of the applicants' relationship with S.K. and the various
criminal proceedings which appear to have consequently taken place.
This notwithstanding, the scope of the present application is limited
to the applicants' conviction of 14 February 2005.
- The
Court firstly observes that in his text the first applicant
implicitly compared S.K. to a blonde woman, and, by way of irony,
strongly criticised his previous convictions by the domestic courts.
The text read as a whole cannot, however, be understood as a
gratuitous personal insult of S.K. but rather a general disapproval
of the domestic courts' practice in punishing journalistic freedom of
expression. The first applicant thereby raised an important issue of
general interest, which he considered significant for the whole of
society and thus open for public debate. The Court reaffirms that,
pursuant to its long-standing practice, there is little scope under
Article 10 § 2 of the Convention for restrictions on the debate
of public interest questions (see Nilsen and Johnsen v. Norway
[GC], no. 23118/93, § 46, ECHR 1999 VIII).
- As
regards the second applicant, he posted an anagram of S.K.'s name in
the vicinity of a photograph of a blonde woman and an accompanying
text, which did not explicitly mention S.K., but contained certain
allusions to him (see paragraph 8 above). The entirety of the second
applicant's text being humorous in content and published under the
newspaper's 'Amusement' column, cannot, in the Court's view, but be
understood as a joke rather than a direct statement maliciously aimed
at offending S.K.'s dignity.
- As
to whether S.K. could be regarded as a public figure, the Court
reiterates that a private individual lays himself open to public
scrutiny when he or she enters the arena of public debate (see
Jerusalem v. Austria, cited above, §§ 38-39).
In the instant case, the parties agreed that S.K., who was an
attorney, had represented the management of a factory in a
high-profile insolvency case and had therefore become a well-known
figure in the town of Kikinda. Given that the articles had been
published in that town's local newspaper, the Court accepts the
qualification of S.K. as a public figure by the domestic courts. S.K.
had entered the arena of public debate and therefore should have had
a higher threshold of tolerance towards any criticism directed at
him.
- The
Court further needs to examine whether the reasons adduced by the
domestic courts in convicting the applicants were “relevant and
sufficient” to justify the interference which occurred. The
Court is struck by the first argument of the domestic courts in this
connection, as later endorsed by the Government, that comparing an
adult man to a blonde woman constituted an attack on the integrity
and dignity of men. Moreover, the domestic authorities considered
such a comparison objectively insulting within their society.
However, the Court finds that argument derisory and unacceptable.
- Secondly,
the domestic courts interpreted as offensive the fact that the
applicants had mentioned S.K. in different parts of the same issue of
the newspaper. Again, the Court must disagree. The applicants' texts
obviously contained a certain degree of mockery but could not, in the
circumstances of the case, have been considered so insulting as to
require the severe sanction of a criminal conviction.
- Thirdly,
by observing that S.K. had already proven the insulting nature of the
applicants' texts merely by instituting proceedings against them, the
domestic courts implicitly rendered any defence raised by the
applicants devoid of any practical effect.
- In
view of the above, the Court considers that there was no “pressing
social need” to restrict the applicants' freedom of expression,
nor were the reasons adduced by the domestic courts relevant or
sufficient to justify that interference.
- Lastly, the Court reiterates that, when assessing
the proportionality of the interference, the nature and severity of
the penalties imposed are also factors to be taken into account (see
Cumpănă and Mazăre v. Romania, no. 33348/96,
17 December 2004, §§ 111-124; Sokołowski v. Poland,
no. 75955/01, § 51, 29 March 2005). In this connection, the
Court points out that recourse to criminal prosecution against
journalists for purported insults raising issues of public debate,
such as those in the present case, should be considered proportionate
only in very exceptional circumstances involving a most serious
attack on an individual's rights (see, mutatis mutandis,
Azevedo v. Portugal, no. 20620/04, § 33, 27 March 2008).
To hold otherwise would deter journalists from contributing to the
public discussion of issues affecting the life of the community and,
more generally, hamper the press in carrying out its important role
of a “public watchdog”.
- In
the instant case, regard must be had to the fact that not only were
the applicants subject to a criminal conviction, but the fine imposed
on each of them could, in case of default, be replaced by sixty days'
imprisonment (see paragraph 15 above).
- The
foregoing considerations are sufficient for the Court to conclude
that the interference with the applicants' right to freedom of
expression was wholly disproportionate. Consequently, there has been
a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicants made no claim in respect of pecuniary or non-pecuniary
damage. Accordingly, the Court makes no award.
- However,
the applicants, who have been granted legal aid, claimed further
reimbursement of costs and expenses incurred before the Court.
However, they failed to itemise their claim as required under Rule 60
of the Rules of Court. Accordingly, the Court makes no award under
this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Dismisses the applicants' claim for the
reimbursement of costs and expenses.
Done in English, and notified in writing on 23 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
