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SECOND
SECTION
CASE OF BODROZIĆ v. SERBIA
(Application
no. 32550/05)
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 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. 32550/05), 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 a Serbian
national, Mr Zeljko BodroZić (“the applicant”), on
23 August 2005. From 3 June 2006, following Montenegro's declaration
of independence, Serbia remained the sole respondent in the
proceedings before the Court.
- The applicant, who had been granted legal aid, was
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
applicant alleged that his right to freedom of expression and to a
fair trial had been violated.
- On
13 September 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Kikinda.
- The
applicant is a journalist and member of a political party. At the
time of the impugned events, he was also the editor of the local
weekly newspaper, Kikindske.
- On
3 October 2003 the applicant published an article about a certain
historian, J.P., entitled 'The Floor is Given to the Fascist' ('Reč
ima fašista'). In his article the applicant wrote:
“J.P., a historian, who during the 1980s and
1990s... used to write kilometres of various insults and defamation
concerning the opponents of Milošević and his... regime,
has again come to the centre of public attention thanks to... the
journalist of Novi Sad TV..., who had invited him as a guest on the
show 'Unbuttoned'. And J.P. would not have been himself (an idiot),
if he had not used another opportunity to express his
fascist-oriented points of view. This is how he, on a national TV
channel..., stated that Baranja was under Croatian occupation and
that Slovaks, Romanians and above all Hungarians in Vojvodina were
colonists... According to [J.] P., there are no Croats in
Vojvodina..., whereas the Hungarians are mainly Slavs... because they
have 'such nice Slavic faces'...
In these three weeks following the show, many NGOs and
individuals, as well as a few political parties, uttered their
opinions.... [They] requested the Radio Broadcasting Council, relying
on point 6 of its recommendation which provides... that 'all
broadcasters were under the obligation to respect... the provisions
restraining hate speech', to take appropriate measures against the
[national] TV...
The Minister of Culture and Media and other officials
also reacted ...
The latest news indicates that the Radio Broadcasting
Agency has been collecting relevant information about the show...
Meanwhile, J.P. must be gloating because he has managed once again to
launch his twisted attitudes into the public domain. Following the
changes of 5 October, this professional 'long spitter' was...
appointed head of the Serbian History Archive... until recently, when
the Government discharged him. He was then granted the opportunity in
some tabloids ... to [criticise] the existing Government and the
“non-existent nations”. 'Unbuttoned' was just the last
episode of this activist... who will undoubtedly... contaminate our
environment for a long time to come.”
- On
10 October 2003 J.P. instituted private criminal proceedings for
insult against the applicant in the Kikinda Municipal Court.
- At
the hearing held on 17 November 2003, the applicant stated that “he
did not wish to settle the matter with the private prosecutor [J.P.]
because he was a member of the fascist movement in Serbia”. On
account of this statement, on 5 January 2004 J.P. instituted new
private criminal proceedings for defamation against the applicant.
- Territorial
jurisdiction in the matter was subsequently transferred to the
Zrenjanin Municipal Court, which decided to join the two cases.
- The
court scheduled a hearing for 15 April 2004, the summons for which
was served on the applicant along with J.P.'s second criminal bill of
indictment on 11 March 2004. The applicant did not attend the
hearing.
- The
court scheduled the next hearing for 23 September 2004, for which the
applicant received the summons on 24 June 2004. He again failed to
appear in court.
- The
applicant submits that none of those court summons were served on him
properly, since they had been sent to the address of the newspaper,
where he was no longer employed. However, he appears to have
personally signed acknowledgments of receipt forms for both summons.
- At
the next main hearing on 15 December 2004, the applicant was escorted
to court by the police. His lawyer met him in the court building and
made a request to the judge for a postponement of the hearing with a
view to acquainting himself with the charges at issue.
- The
presiding judge granted the applicant and his lawyer 30 minutes to
prepare the applicant's defence. After 20 minutes the applicant's
lawyer stated that they were ready for the hearing.
- The
court held the main hearing and gave judgment that same day, finding
the applicant guilty of insult for the published article and of
defamation for the statement given at the court hearing of 17
November 2003. The court fined the applicant 15,000 Serbian dinars
(RSD, approximately 162 euros (EUR)), and ordered him to pay J.P.
another RSD 20,700 (approximately EUR 225) in respect of the costs of
the proceedings.
- In
its judgment the Zrenjanin Municipal Court held, inter alia,
that describing someone as a “fascist” was offensive,
given the historical connotations of that expression “representing
tragedy and evil”. The court rejected the applicant's argument
that he was merely expressing his own political views, since forming
fascist political parties or movements was illegal under domestic
law. The applicant had consequently failed to respect the human
dignity of J.P. If he had felt personally offended by any of J.P.'s
statements made on the television programme or elsewhere, the
applicant should have sought appropriate judicial relief.
- On
an appeal by the applicant, on 9 March 2005 the Zrenjanin District
Court upheld the first-instance judgment. The court concluded that
J.P.'s statements were a product of his expert findings as a
historian. Since the word “fascism” meant the extinction
of people based on their nationality and/or religion, this had
clearly not been the object of J.P.'s statements. The applicant's
article had thus the sole aim of insulting J.P. by using this term
and additionally calling him “an idiot”.
- The
second-instance court further found the applicant's allegations of
improper summoning and an inability to prepare his defence
ill-founded, establishing that he had been duly summoned twice but
had failed to appear in court. Moreover, at the hearing on 15
December 2004 the applicant and his lawyer had been given the
opportunity to consult and prepare his defence, and they had stated
after 20 minutes that they were ready for the hearing.
- It
appears that J.P. instituted another set of proceedings against the
applicant – a civil claim for compensation for non-pecuniary
damage – and that the domestic courts ordered the applicant to
pay him compensation in the sum of RSD 50,000 (approximately EUR
540). However, the applicant did not include these proceedings in his
complaints raised before the Court.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Criminal Code of the Republic of Serbia
(Krivični zakon
Republike Srbije; published in the Official Gazette of the
Republic of Serbia - 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) provide as
follows:
Article 92 (1)
“Whoever, in relation to another, asserts or
disseminates a falsehood which can damage his [or her] honour or
reputation shall be fined or punished by imprisonment not exceeding
six months.”
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] so does in a scientific,
literary or artistic work, 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 transpires 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
relevant provisions of 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) provide 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, providing 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 imprisonment shall be discontinued.”
- The
relevant provisions of the Criminal Procedure Code (Zakonik o
krivičnom postupku,
published in OG FRY nos. 70/01, 68/02 and 58/04) provide as follows:
Article 160
“Documents which need to be served in person
pursuant to the provisions of this Code shall be served directly on
the addressee. If the person to be served cannot be reached at the
place where the service is to be effected, the process server shall
inquire when and where that person can be found and leave with one of
the persons stated in Article 161 of this Code a written notice
inviting the recipient to be in his flat or place of work on a
specified date and hour for the purpose of receiving the document. If
even after this the server of process does not find the addressee, he
shall act in accordance with section 161 (1) of this Code and it
shall be deemed that by such acts the document is served.”
Article 161
“1. A document which does not have to
be served in person pursuant to the provisions of this Code shall
also be served in person, but if the addressee is not found at his
flat or place of work the documents can be served on any adult member
of his household who is obliged to receive it. If no members of the
addressee's household are found in the flat, the document may be
served on the housekeeper or a neighbour, if they accept it. If the
service is attempted at the addressee's place of work and he cannot
be found there, service can be effected on a person authorised to
receive mail therein, who is obliged to receive the document, or to
any other employee, if he is willing to accept the service.
2. If it is established that the recipient is
absent and that the persons from paragraph 1 of this section are
unable to deliver the document to him in due time, it shall be
returned with a notice containing information on the recipient's
whereabouts.”
Article 162 (1)
“The summons... for the main hearing shall be
served on the defendant in person.”
- Article
419 provides, inter alia, that the competent public prosecutor
“may” (moZe)
file a Request for the Protection of Legality (zahtev za zaštitu
zakonitosti) against a “final judicial decision”, on
behalf of or against the defendant, if the relevant substantive
and/or procedural “law has been breached” (ako je
povređen zakon).
- On
the basis of the above request, under Articles 420, 425 and 426, the
Supreme Court may uphold the conviction at issue or reverse it. It
may also quash the impugned judgment in its entirety, or in part, and
order a retrial before the lower courts. If the Supreme Court finds,
however, that there has been a violation of the law in favour of the
defendant, it may declare this but leave the final judgment standing.
- Under
sections 199 and 200 of the Obligations Act (Zakon o obligacionim
odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and
57/89, as well as in OG FRY no. 31/93), inter alia, 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.
- Section
13 of the Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in OG RS no. 125/04) provides that a civil
court is bound by a final decision of a criminal court in respect of
whether a crime has been committed, as well as the criminal liability
of the person convicted.
- The
relevant provisions concerning the Court of Serbia and Montenegro are
set out in the Matijašević
v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25,
19 September 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his criminal conviction had violated his
right to freedom of expression as provided in 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 submitted that the applicant had not
exhausted all available and effective domestic remedies. In the first
place, as regards the criminal proceedings, he had failed to urge the
public prosecutor to lodge a request for the protection of legality
(an “RPL”) on his behalf (see paragraphs 24 and 25
above). Secondly, he could have brought a civil action for damages
under sections 199 and 200 of the Obligations Act if he deemed that
one of his personality rights had been violated (see paragraph 26
above). In this connection the Government provided the example of a
final judgment where a domestic court had applied Articles 5 and 8 of
the Convention, taken together with Article 200 of the Obligations
Act, granting the plaintiff's civil compensation claim in a matter
involving unlawful surveillance, arrest and detention. Thirdly, the
applicant could have instituted criminal proceedings against J.P. if
he had considered any of his statements insulting, and lastly he
could have made use of the complaint procedure before the Court of
Serbia and Montenegro (see paragraph 28 above).
- The
applicant maintained that all of the above-mentioned remedies were
ineffective.
- The
Court reiterates that, according to its established case-law, the
purpose of the domestic remedies rule contained in Article 35 §
1 of the Convention is to afford the Contracting States the
opportunity to prevent or put right the violations alleged before
they are submitted to the Court. However, the only remedies to be
exhausted are those which are effective. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one, available in theory and in practice at
the relevant time (see, inter alia, Vernillo v. France,
judgment of 20 February 1991, Series A no. 198, pp. 11–12,
§ 27, and Dalia v. France, judgment of 19 February
1998, Reports of Judgments and Decisions 1998-I, pp. 87-88,
§ 38). Once this burden of proof has been satisfied, it
falls to the applicant to establish that the remedy advanced by the
Government has in fact been exercised, or is for some reason
inadequate and ineffective in the particular circumstances of the
case, or that there exist special circumstances absolving him or her
from this requirement (see Dankevich v. Ukraine, no. 40679/98,
§ 107, 29 April 2003).
- Finally,
the Court reiterates that an effective domestic remedy must form part
of the normal process of redress and cannot be of a discretionary
character. The applicant must therefore be able to initiate
proceedings directly, without having to rely on the benevolence of a
public official ((see Lepojić v. Serbia, no. 13909/05, §
54, 6 November 2007).
- Turning
to the present case, the Court finds that it was only the public
prosecutor who could have lodged an RPL on behalf of the applicant.
Moreover, the former had full discretion whether or not to do so.
While the applicant could have requested such an action, he certainly
had no right under law to make use of this remedy personally
(see paragraph 24 above). An RPL was thus ineffective as understood
by Article 35 § 1 of the Convention.
- As
to the possibility of lodging a civil action in damages against a
final criminal conviction, the Government were unable to cite any
domestic jurisprudence where a claim based on the relevant provisions
of the Obligations Act had been used successfully in a case such as
the applicant's. In the Court's view, it appears contradictory to the
social purpose of criminal sanctions that a convicted person may
institute civil proceedings against the State with a view to
overturning a final criminal conviction and obtaining damages
suffered as a consequence thereof. This remedy therefore lacks any
prospect of success.
- Further,
the Court fails to see how instituting criminal proceedings against
J.P. could have been an effective remedy in respect of the
applicant's criminal conviction and the alleged breach of his rights.
In any event, having exhausted all remedies in the criminal
proceedings brought against him, the applicant could not have
reasonably been expected to embark upon yet another avenue of
unlikely redress (see, mutatis mutandis, Filipović v.
Serbia, no. 27935/05, § 44, 20 November 2007).
- Lastly,
concerning the Government's submission that the applicant should have
lodged a complaint with the Court of Serbia and Montenegro, the Court
reiterates that it has already held that this particular remedy was
unavailable until 15 July 2005 and, moreover, remained ineffective
until the break-up of the State Union of Serbia and Montenegro (see
Matijašević v. Serbia, no. 23037/04, §§ 34-37,
ECHR 2006 ...). The Court sees no reason to depart from this
finding in the present case.
- In
view of the above, the Court finds that the applicant's complaints
cannot be declared inadmissible for non-exhaustion of domestic
remedies under Article 35 § 1 of the Convention. Accordingly,
the Government's objection must be dismissed.
- The
Court further notes that this complaint 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 parties' submissions
- The
Government maintained that the terms “idiot” and
“fascist” were objectively defamatory and, in respect of
J.P., also untrue because he had never been “a member of the
fascist movement in Serbia” since such a group had never
existed. Further, the applicant's article had not been written in
good faith, since its main purpose was to demean J.P. and instil in
the public an intense feeling of repulsion towards him. Whilst J.P.'s
opinions and statements made during the interview, and in his book
entitled “Vojvodina's autonomy – the Serbian people's
nightmare” (“Autonomija Vojvodine – košmar
srpskog naroda”), had indeed given rise to harsh public
reactions, the Government nonetheless argued that the applicant had
failed to respect journalistic ethics in criticising him in this
manner.
- The
Government further submitted that J.P., as a person who did not hold
a public position, required a higher level of protection from
exposure to criticism from journalists. The applicant's allegations
were simply statements, which were in no way supported by truth.
- Finally,
the Government considered the sentence imposed on the applicant to
have been negligible and therefore proportionate to the legitimate
aim sought to be achieved.
- The
applicant contested the Government's views. He reiterated that J.P.'s
statements were harmful to Vojvodina's multinational society and
that, as a journalist, he had felt obliged to react to them publicly.
Since J.P. had stated his views on public television, the applicant
disagreed that instituting private court proceedings, as suggested by
the Government, would have constituted a sufficient response to those
statements.
2. The Court's assessment
(a) “Prescribed by law”
- It
was not disputed that the applicant's conviction for defamation and
insult amounted to an “interference” with his right to
freedom of expression and that it was “prescribed by law”
under Articles 92 and 93 of the Criminal Code as worded at the
material time (see paragraph 21 above).
(b) “Legitimate aim”
- It
is also common ground that the said interference pursued the
legitimate aim of the protection of the rights of others, namely the
reputation of J.P. What remains to be established is whether the
interference was “necessary in a democratic society”.
(c) Necessary in a democratic society”
α. General principles
- As
the Court has often observed, freedom of expression enshrined in
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, cited above, § 73; Filipović
v. Serbia, cited above, § 53). It comprises, among other
things, the right to impart, in good faith, information on matters of
public interest even where the publication in question involves
untrue and damaging statements about private individuals (see Lepojić
v. Serbia, cited above, § 74).
- The
Court emphasises the essential function fulfilled by the press in a
democratic 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
interest 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 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).
β. Application to the present case
- In
the instant case, the applicant's conviction was based on the
expressions he used to describe J.P. - “an idiot”, “a
fascist” and “a member of the fascist movement”. Bearing
in mind the difference between insult and defamation as two distinct
criminal acts in respect of which the applicant had been found
guilty, the Court shall nonetheless consider the case as a whole,
given that the facts and the nature of the expressions used call for
such an examination.
- The Government argued in the first place that the
applicant's expressions were statements of fact, which were untrue
because in Serbia it would be unlawful to create a fascist movement.
The domestic courts appear to have also based their conclusions to a
large extent on this argument. The Court reiterates at this point
that it has constant case-law distinguishing facts from value
judgments, the latter not being as such susceptible of proof (see,
for example, Lingens v. Austria, judgment of 8 July 1986,
Series A no. 103, § 46; Oberschlick v. Austria (no. 1),
23 May 1991, § 63, Series A no. 204). The classification of a
statement as a fact or a value judgment is a matter which, in the
first place, falls within the margin of appreciation of the national
authorities, in particular the domestic courts (see Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 76,
ECHR 2004-XI). However, even where a statement amounts to a value
judgment, there must exist a sufficient factual basis to support it
(see Jerusalem v. Austria, cited above, § 43).
- As
a preliminary remark, the Court observes that in previous cases it
has found the generally offensive expressions “idiot” and
“fascist” to be acceptable criticism in certain
circumstances (see Oberschlick v. Austria (no. 2),
judgment of 1 July 1997, Reports of Judgments and Decisions
1997 IV; Feldek v. Slovakia, no. 29032/95, ECHR
2001 VIII). However, it must examine the specific circumstances
of the present case as a whole in order to establish whether the
applicant's criminal conviction on the basis of those expressions was
proportionate to the legitimate aim it had pursued.
- The
applicant's statements must be seen in context. The applicant had
reacted to certain controversial statements made by J.P. on public
television concerning the existence and the history of national
minorities in Vojvodina, a multi-ethnic region, 35% of whose
population was non-Serbian, according to the 2002 census. This large
minority was made up mostly of Hungarians, but also of Slovaks,
Croats and others. In that interview, J.P. stated, inter alia,
that “all Hungarians in Vojvodina were colonists” and
that “there were no Croats in that region”. Even though
J.P. in no way relied on fascism as defined by the Serbian courts
(see paragraph 18 above), it is understandable why the applicant, who
himself had different political views, might have interpreted J.P.'s
statements as implying a certain degree of intolerance towards
national minorities. The fact that he considered it his duty as a
journalist to react to such statements publicly is also
understandable. Further, the Court
considers that calling someone a fascist, a Nazi or a communist
cannot in itself be identified with a factual statement of that
person's party affiliation (see, mutatis mutandis, Feldek
v. Slovakia, cited above, § 86).
- In
view of the above, the Court finds that the expressions used by the
applicant cannot but be interpreted as value judgments, the veracity
of which is not susceptible of proof. Such value judgments may be
excessive in the absence of any factual basis but, in the light of
the aforementioned elements, that does not appear to have been the
case in the present application.
- The
Court further observes that the limits of acceptable criticism are
wider as regards a politician than as regards a private individual.
However, even private individuals lay themselves open to public
scrutiny when they enter the arena of public debate (see Jerusalem
v. Austria, cited above, §§ 38-39). In the instant
case the Court observes that J.P. appears to have been a well-known
public figure, who had even at one point held public office (see
paragraph 7 above). In any event, having published a book on a
subject of wide public interest and having appeared on local
television, he must have been aware that he might be exposed to harsh
criticism by a large audience. He was therefore obliged to display a
greater degree of tolerance in this context (see, mutatis
mutandis, Oberschlick v. Austria (no. 2),
judgment of 1 July 1997, Reports 1997-IV, § 31-33).
- Pursuant to the Court's longstanding practice, there
is little scope under Article 10 § 2 of the Convention for
restrictions on debate on questions of public interest (see Nilsen
and Johnsen v. Norway [GC], no. 23118/93, § 46, ECHR
1999 VIII). In this connection, the Court observes that the
discussion in the present case was clearly one of great public
interest and the object of an ongoing political debate. This is
supported by the fact that not only the applicant, but also many
non-governmental organisations, political parties and some prominent
public figures, also reacted to J.P.'s controversial television
interview and the statements he made on that occasion.
- It
is true that in criticising J.P. the applicant used harsh words
which, particularly when pronounced in public, may often be
considered offensive. However, his statements were given as a
reaction to a provocative interview and in the context of a free
debate on an issue of general interest for the democratic development
of his region and the country as a whole. Their content did not in
any way aim at stirring up violence (see, a contrario, Lindon,
Otchakovsky-Laurens and July, cited above, § 57). Moreover,
Article 10 protects not only “information” or “ideas”
that are favourably received or regarded as inoffensive, but also to
those that offend, shock or disturb (see, among many other
authorities, Castells v. Spain, 23 April 1992, § 42,
Series A no. 236, and Vogt,cited above, § 52).
- As
to the reasons given by the domestic authorities when convicting the
applicant, the Court observes that they limited their analysis to the
fact that the forming of fascist movements in Serbia was prohibited
by law and that the applicant's statements were therefore untrue.
However, in adopting a narrow definition of what could be considered
acceptable criticism, the domestic courts did not embark on an
analysis of whether the applicant's statements could have been value
judgments not susceptible of proof (see Grinberg v. Russia,
no. 23472/03, § 28-30, 21 July 2005). They also failed to carry
out an adequate proportionality analysis to assess the context in
which the expressions had been used and their factual basis.
Consequently, the Court concludes that the reasons adduced by the
domestic courts cannot be regarded as “relevant and sufficient”
to justify the interference at issue.
- 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 the instant case, regard
must be had to the fact that not only was the applicant subject to a
criminal conviction, but the fine imposed on him could, in case of
default, be replaced by 75 days' imprisonment (see paragraph 22
above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the criminal proceedings in the particular
circumstances of the instant case resulted in a breach of the
applicant's right to freedom of expression.
There
has accordingly been a violation of Article 10 of the Convention.
II.. ALLEGED VIOLATION OF ARTICLE 6 § 3 (b)
OF THE CONVENTION
- The
applicant complained that he had not been afforded enough time to
prepare his defence in the criminal proceedings. He relied on Article
6 § 3 (b) of the Convention, which reads as follows:
“3. Everyone charged with a criminal
offence has the following minimum rights:
(b) to have adequate time and facilities for
the preparation of his defence...”
Admissibility
- The
Government contested this argument. They submitted acknowledgments of
receipt signed by the applicant for the hearings scheduled for 15
April and 23 September 2004, which he did not attend. They claimed
that the applicant had been aware of the content of both private
bills of indictment, because he had obtained the first one at the
hearing held on 17 November 2003, while the second one had been
served on him with the court summons on 15 April 2004. Furthermore,
at the hearing held on 15 December 2004 the applicant was
granted 30 minutes to consult with his lawyer and prepare his
defence, but the lawyer stated that they were ready after only 20
minutes. The Government submitted that the court might have granted a
further adjournment of the hearing had the applicant's lawyer
requested it.
- The
applicant generally disagreed with these arguments, claiming that the
service of the two court summons had been irregular, because it had
occurred at his former place of employment.
- The Court recalls that the “rights of defence”,
of which Article 6 § 3 gives a non-exhaustive list, have been
instituted, above all, to establish equality, as far as possible,
between the prosecution and the defence. Article 6 § 3 (b)
guarantees the accused “adequate time and facilities for the
preparation of his defence” and therefore implies that the
substantive defence activity on his behalf may comprise everything
which is “necessary” to prepare the main trial. The
accused must have the opportunity to organise his defence in an
appropriate way and without restriction as to the possibility to put
all relevant defence arguments before the trial court, and thus to
influence the outcome of the proceedings. The provision is violated
only if this is made impossible (see Mayzit v. Russia,
no. 63378/00, §§ 78-79, 20 January 2005).
- Turning
to the present case, the Court observes that the applicant was duly
informed about the charges against him in November 2003 and March
2004 respectively. He was at all times thereafter able to communicate
freely with his lawyer with a view to preparing his defence prior to
the hearing and the first-instance judgment of 15 December 2004.
- The
applicant complained in particular that he had been escorted by the
police to the last mentioned hearing and was given only a limited
time to consult his lawyer. However, given the above elements, as
well as the fact that his lawyer declared his readiness to proceed
before the expiry of the allotted time, the Court considers that the
applicant was given sufficient time to prepare his defence.
- It
follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. 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.”
A. Damage
- The
applicant claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested this claim.
- The
Court accepts that the applicant has suffered non-pecuniary damage,
such as distress and frustration resulting from the proceedings
against him. Making its assessment on an equitable basis, the Court
awards the applicant EUR 500, plus any tax that may be chargeable on
that amount.
B. Costs and expenses
- The
applicant, who had been granted legal aid, made no further claims in
respect of costs and expenses incurred before the Court. Accordingly,
the Court makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning freedom of
expression admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 500 (five
hundred euros) in respect of non-pecuniary damage, which sum is to be
converted into the national currency of the respondent State at the
rate applicable on the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
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
