Case: Tešić v. Serbia
Judgement date: 11 February 2014
Topic: Older people and the European Convention on Human Rights
Aspect: Freedom of expression (Article 10 of the Convention)

Summary of the facts:
In 2006 the applicant, a pensioner suffering from various illnesses, was found guilty of defaming her lawyer and ordered to pay him 300,000 dinars in compensation, together with default interest, plus costs in the amount of 94,120 dinars (equivalent to approximately 4,900 euros in all). In July 2009 the Municipal Court issued an enforcement order requiring two thirds of the applicant’s pension to be transferred to the lawyer’s bank account each month, until the sums awarded had been paid in full. After these deductions the applicant was left with approximately 60 euros a month on which to live.

Summary of the Court's findings:
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It observed in particular that the damages plus costs awarded against the applicant were equal to a total of more than 60% of her monthly pension. Furthermore, it could not be said that the applicant’s statement in respect of her former counsel had been merely a gratuitous personal attack. Moreover but most strikingly, the municipal court had issued an enforcement order requiring two thirds of the applicant’s pension to be transferred to her lawyer’s bank account each month, notwithstanding that the applicable law had provided that that was the maximum that could be withheld, thus clearly leaving room for a more nuanced approach. By 30 June 2013 the applicant had paid a total of approximately 4,350 euros, but with accrued and future interest, she would have to continue with the payments for approximately another two years. In May 2012 her monthly pension was some 170 euros, so that after deductions she was left with approximately 60 euros on which to live and buy her monthly medication, which at approximately 44 euros, she could no longer afford. This, the Court found, was a particularly precarious situation for an older person suffering from a number of serious illnesses. Therefore, while the impugned measures had been prescribed by law and had been adopted in pursuit of a legitimate aim, namely for the protection of the reputation of another, this interference with the applicant’s right to freedom of expression had not been “necessary in a democratic society”.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”).
6. The relevant facts of the case, as submitted by the parties, may be summarised as follows.
A. The criminal case and other related proceedings
7. On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action ( privatna krivična tužba ) filed on 10 March 2003, found the applicant guilty of criminal defamation ( kleveta ) and sentenced her to six months ’ imprisonment, suspended for a period of two years ( uslovna osuda; see paragraph 35 below). Ms SN, a journalist, was also found guilty of the same offence and sentenced identically.
8. The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter ’ s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant ’ s and article ’ s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge.
9. On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court ’ s decision on 19 July 2006.
10. On 16 August 2006 the applicant filed a request for the reopening of these proceedings.
11. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant ’ s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court ’ s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 1 5 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor ’ s Office had informed the applicant of its formal rejection based on the applicable statute of limitation. The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004.
12. On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court ’ s judgment of 25 March 2011. The applicant was served with the Appeals Court ’ s decision on 21 December 2011.
13. On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending.
B. The civil suit and other related proceedings
14. On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article.
15. On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all.
16. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB ’ s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below).
17. On 16 April 2009 the District Court in Novi Sad rejected the applicant ’ s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court ’ s decision on 30 April 2009.
18. The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded.
19. On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316 ‑ B; and Filipović v. Serbia, no. 27935/05, 20 November 2007 ). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below.
20. On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below).
21. On 9 December 2009 the Municipal Court rejected the applicant ’ s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal.
22. On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings.
23. On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant ’ s complaint concerning her medical situation.
24. The applicant was apparently informed of this decision in the Constitutional Court ’ s letter of 21 December 2011, and received it by 23 April 2012 at the latest.
C. The enforcement proceedings
25. On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007.
26. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to the creditor ’ s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below).
27. The said deductions to the applicant ’ s monthly income began as of 8 August 2009.
28. In May 2012 the applicant ’ s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live.
29. By 30 June 201 3 the applicant had paid a total of RSD 496, 471. 1 0, i.e. approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years ( see paragraphs 44-50 below).
D. The applicant ’ s medical condition
30. The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery.
31. The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it.
E. Other relevant facts
32. On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper ’ s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e. approximately EUR 4,12 0 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal.
33. The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities.
I. The Constitutional Court ’ s decision IUz-82/09 of 12 July 2012 published in OG RS no. 73/12
47. Based on this decision and as of 27 July 2012, the Constitutional Court repealed the method of calculating interest as set out in Article 3 § 1 of the Statutory Interest Act 2001.
J. The Statutory Interest Act 2012 ( Zakon o zateznoj kamati; published in OG RS no. 119/12)
48. Article 2 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement.
49. Article 3 states that such interest shall be calculated annually based on the Serbian National Bank ’ s reference interest rate and increased by eight percentage points.
50. This act entered into force on 25 December 2012 and thereby repealed the Statutory Interest Act 2001.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW, COMMENTARY AND PRACTICE
A. The Criminal Code of the Republic of Serbia 1977 ( Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia – OG SRS – nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 21/90, 16/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02 and 80/02)
34. The relevant provisions of this Code read as follows:
Article 92
“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.
If an act described in [the above] paragraph has been committed through the press, via radio or television ... [or otherwise through the mass media] ... or at a public meeting, the perpetrator shall be punished by imprisonment not exceeding one year. ...
If the defendant proves his [or her] claims to be true or if he [or she] proves that there were reasonable grounds to believe in the veracity of the claims which he [or she] had made or disseminated, he [or she] shall not be punished for defamation, but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence...
Whoever, in relation to another, falsely claims or disseminates claims to the effect that he [or she] has committed a crime prosecuted ex officio, shall be punished for defamation even if there were reasonable grounds to believe in their veracity, unless such claims have been made or disseminated pursuant to Article 96 § 2 of this Code. The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded.”
Article 96 §§ 1 and 2
“... [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.
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] ...”
B. The Criminal Code of the Federal Republic of Yugoslavia ( Krivični zakon Savezne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 4 6/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01 )
35. The relevant provisions of this Code read as follows:
Article 4
“ It is the criminal legislation which was in force at the time of commission of the crime in question that shall be applied to the perpetrator thereof.
If the criminal legislation has been amended once or on several occasions thereafter, the legislation which is more favourable for the perpetrator shall be applied.”
Article 51
“... [T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment ( suspended sentence) ... will ... [be sufficient to deter the offender] ... from committing any [other] criminal acts.”
Article 52 § 1
“In handing down a suspended sentence, the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [specified] ... period of time which cannot be less than one or more than five years in all (period of suspension) ...”
Article 53 § 4
“In deciding whether to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his [or her] conduct prior to and following the commission of the criminal act, the degree of his [or her] criminal liability, as well as other circumstances under which the act has been committed.”
Article 54 §§ 1 and 2
“The court shall revoke the suspended sentence if, during the period of suspension, the convicted person commits one or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years.
If, during the period of suspension, the convicted person commits one or more criminal acts and is sentenced to imprisonment for a term of less than two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ...”
Article 93 § 2
“A suspended sentence shall be expunged one year following the date of expiry of the period of suspension, if the convicted person does not commit another criminal act during this time.”
Article 94 § 3
“When a conviction has been expunged, information about the conviction may ... be given ... [only] ... to the courts, the public prosecution service and the police in connection with an ongoing criminal case against the person ... [concerned] ... ”
C. Subsequent criminal legislation
36. In 2005 the Serbian Parliament enacted a new Criminal Code ( Krivični zakonik ). It was published in OG RS no. 85/05 and entered into force on 1 January 2006, thus repealing the above - mentioned criminal legislation. The new Code provided for the offence of criminal defamation, in Article 171, but envisaged that only a fine, not a prison term, could be imposed on the perpetrators thereof.
37. The Criminal Code 2005 was amended on four occasions thereafter. Ultimately, the amendments adopted in 2012, which were published in OG RS no. 121/12 and entered into force on 1 January 2013, repealed Article 171 of the Criminal Code 2005. Criminal defamation thereby ceased to be a criminal offence in the Serbian legal system.
D. 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)
38. Under Articles 199 and 200, 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.
39. Article 200 § 2 provides, inter alia, that when deciding on the exact amount of compensation to be awarded, the courts must take into account all of the relevant circumstances. There is also long-standing domestic case-law to the effect that the courts must be vigilant not to give in to any lucrative animus when it comes to compensation claims filed in respect of alleged breaches of one ’ s reputation (see, for example, the decision of the Supreme Court of Yugoslavia, Rev. 277/66).
E. The Civil Procedure Act 2004 ( Zakon o parničnom postupku; published in OG RS nos. 125/04 and 111/09 )
40. Article 13 provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed, as well as concerning the criminal liability of the person convicted. An acquittal, however, does not rule out a civil suit for damages since the conditions for criminal and civil liability are different (see Komentar Zakona o parničnom postupku, Mr Svetislav R. Vuković, Poslovni biro, Belgrade, 2004, p. 18).
F. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04)
41. Article 156 § 1 provides, inter alia, that, as part of the enforcement procedure, up to two thirds of a debtor ’ s pension may be withheld.
G. The Enforcement Procedure Act 2011 ( Zakon o izvršenju i obezbeđjenju, published in OG RS nos. 31/11 and 99/11)
42. Article 148 § 1 of this Act, in its relevant part, corresponds to the substance of Article 156 § 1 of the Enforcement Procedure Act 2004.
43. According to Article 363, the Enforcement Procedure Act 2011 entered into force on 18 September 2011, while pursuant to Article 358 § 1 all pending enforcement proceedings shall be completed on the basis of this new Act.
H. The Statutory Interest Act 2001 ( Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11)
44. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement.
45. Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly.
46. Article 3 § 1 sets out the exact method of calculating the interest in question.
THE LAW
I. JOINDER OF THE APPLICATIONS
51. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
52. The applicant complained, under Article 10 of the Convention, about the breach of her freedom of expression suffered due to her criminal conviction, the subsequent civil defamation judgment rendered against her, and, also, the way in which the latter was enforced domestically, causing her, as it did, extreme financial hardship, numerous health problems and even endangering her very life. The applicant additionally referred to Articles 3 and 8 of the Convention in this context, as well as to Article 1 of Protocol No. 1.
53. It being the “master of the characterisation” to be given in law to the facts of any case before it (see, for example, Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), the Court considers that this complaint primarily falls be examined under Article 10 of the Convention, which, insofar as relevant, reads 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
1. As regards the criminal proceedings
54. The Government maintained, inter alia, that since the proceedings before the Constitutional Court were still pending in this respect (see paragraphs 13 above), the applicant ’ s complaint regarding the criminal case brought against her had to be rejected on the grounds of non-exhaustion.
55. The applicant recalled that she had lodged her application (no. 4678/07) with the Court on 29 December 2006, at which time the constitutional appeal had still not been considered effective.
56. The Court recalls that it has consistently held that a constitutional appeal should, in principle, be deemed effective within the meaning of Article 35 § 1 of the Convention in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; see also Rakić and Others v. Serbia, no. 47460/07 and others, § 39, 5 October 2010, and Hajnal v. Serbia, no. 36937/06, §§ 122 and 123, 19 June 2012). It is understood, however, that any complaints concerning subsequent facts, including proceedings and/or decisions, shall have their own, “new”, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (see, for example, Allan v. United Kingdom (dec.), no. 48539/99, 28 August 2001; and Zervakis v. Greece (dec.), no. 64321/01, 17 October 2002).
57. In view of the above, the Court notes that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court accepted the applicant ’ s motion for their reopening (see paragraph 11 above). The subsequent criminal proceedings were concluded by 2 9 November 2011, hence post 7 August 2008, and the case before the Constitutional Court has been pending since 19 January 2012 (see paragraphs 12 and 13 above). In these circumstances, the applicant ’ s remaining complaint relating to the criminal proceedings following their reopening is premature and must, as such, be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of non-exhaustion.
2. As regards the civil and enforcement proceedings
58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits (as regards the civil and the enforcement proceedings )
1. The parties ’ submissions
59. The Government admitted that the applicant ’ s freedom of expression had been restricted. This restriction, however, had been in accordance with the applicable domestic law and had pursued the legitimate aim of protecting the reputation of others. The competent civil courts had also properly assessed the facts and adequately applied the relevant domestic legislation. The applicant ’ s allegation to the effect that her lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case, had been a statement of fact in support of which no credible evidence had ever been offered. This statement had likewise not been given in any constructive social context, but merely as an expression of the applicant ’ s personal dissatisfaction. Further, Mr NB, being a practising lawyer, could not have remained passive in the face of such serious allegations undermining his very livelihood. Finally, the Government argued that neither the sum which had been awarded to Mr NB by the civil courts, consistent with damages awarded in other similar cases, nor the manner of its subsequent enforcement could be deemed disproportionate. While, admittedly, the applicant ’ s pension had been low this could not have absolved her from paying for the profound damage caused to Mr NB. In any event, approximately one third of the total principal sum due to be paid by the applicant consisted of the costs incurred by Mr NB in the course of the civil and enforcement proceedings.
60. The applicant reaffirmed her complaint. She added that the newspaper article was the journalist ’ s responsibility and that she had provided Ms SN with the relevant information but had never seen the piece before its publication. In any event, the fact remained that Mr NB had failed to adequately represent the applicant throughout the proceedings in question. The civil judgments rendered against the applicant amounted therefore to, at best, a disproportionate interference with her freedom of expression, particularly bearing in mind the pension-related deductions imposed in the course of the enforcement proceedings and considering her dire financial and medical situation.
2. The Court ’ s assessment
61. The freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)). Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204 ).
62. The Court has repeatedly upheld the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999 ‑ III). However, account must be taken of the distinction between factual statements on the one hand and value judgments on the other, since the existence of facts can be demonstrated whereas the truth of value judgments is not susceptible to proof (see, for example, Lingens v. Austria, judgment of 8 July 1986, § 46, Series A no. 103; and McVicar v. the United Kingdom, no. 46311/99, § 83, ECHR 2002 ‑ III).
63. The nature and severity of the sanction imposed, as well as the “relevance” and “sufficiency” of the national courts ’ reasoning, are matters of particular importance in assessing the proportionality of the interference under Article 10 § 2 (see Filipović, cited above, § 55). The amount of any compensation awarded must likewise “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the plaintiff in question (see Tolstoy Miloslavsky, cited above, § 49; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005, where the Court held that the damages “awarded ... although relatively moderate by contemporary standards ... [ had been ] ... very substantial when compared to the modest incomes and resources of the ... applicants ... ” and, as such, in breach of the Convention).
64. Turning to the present case, the Court notes that both the final civil court judgment rendered against the applicant and the subsequent enforcement order undoubtedly constituted an interference with the applicant ’ s right to freedom of expression. Since they were based on the Obligations Act and the applicable enforcement procedure legislation, however, they were also clearly “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraphs 38 and 41-43 above). Lastly, the judgment in question, as well as the enforcement order, were adopted in pursuit of a legitimate aim, namely “for the protection of the reputation” of another. What remains to be resolved, therefore, is whether the interference was “necessary in a democratic society”.
65. In this respect the Court notes that the damages plus costs awarded against the applicant amounted to approximately EUR 4,900 and were, as such, equal to a total of more than sixty of the applicant ’ s monthly pensions calculated on the basis of the available information as of December 2006 (see paragraphs 15 and 5 above, in that order; see also, mutatis mutandis, Koprivica v. Montenegro, no. 41158/09, § § 73-75, 22 November 2011 ). This sum was also very similar to the amount awarded in a separate civil suit concerning the same issue brought against, inter alios, Dnevnik and the Autonomous Province of Vojvodina, as two certainly more financially viable legal entities (see paragraph 32 above).
66. Furthermore, while it is true that the criminal complaint filed by the police against Mr NB had been rejected by the Novi Sad Municipal Public Prosecutor ’ s Office, and that the applicant had been informed of this rejection on the grounds of prescription by 5 July 2002 (see paragraph 11 above), it cannot be said that her statement in respect of her former counsel had been merely a gratuitous personal attack. After all, the police had clearly seen some merit in these allegations and the applicant ’ s subsidiary prosecution was not rejected by the courts until 30 September 2004 ( ibid .), well after the publication of the impugned article on 12 December 2002 (see, mutatis mutandis, Koprivica, cited above, § 67, in fine ). Moreover, the Government ’ s proposition that a discussion of a practising lawyer ’ s professional conduct is clearly a matter of no public interest is in itself a dubious one, particularly bearing in mind the role of lawyers in the proper administration of justice.
67. Finally but most strikingly, on 14 July 2009 the Novi Sad Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to Mr NB ’ s bank account each month, until the sums awarded to him have been paid in full (see paragraph 26 above), all this notwithstanding that Article 156 § 1 of the Enforcement Procedure Act 2004 had provided that up to two thirds of a debtor ’ s pension might be withheld, thus clearly leaving room for a more nuanced approach (see paragraph 41 above). The said deductions began as of 8 August 2009, and by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 (see paragraphs 27 and 29 above). Nevertheless given the accrued and future interest, she will have to continue with the payments for approximately another two years (see paragraph 29 above). In May 2012 the applicant ’ s monthly pension was some EUR 170. After deductions, she was hence left with approximately EUR 60 on which to live and buy her monthly medication (see paragraph 28 above). Since the latter would cost her approximately EUR 44, she maintained, and the Government never contested this assertion, that she can no longer afford to buy it (see paragraph 31 above). This is in the Court ’ s opinion a particularly precarious situation for an elderly person suffering from a number of serious diseases (see paragraph 30 above).
68. In view of the above, the Court finds that the interference in question was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention.
69. Having regard to this finding, the Court further considers that it is also not necessary to examine separately the admissibility or the merits of the applicant ’ s essentially identical complaints made under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1.
III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
70. Under Article 6 § 1 of the Convention, the applicant complained about the fairness and the length of the criminal proceedings prior to and after their reopening, the fairness and the length of the civil defamation proceedings, and the length of the proceedings before the Constitutional Court instituted on 29 May 2009.
71. Article 6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law ... ”
72. The Government contested the admissibility, including on the grounds of non-exhaustion, and the merits of the above-alleged violations.
A. The Court ’ s assessment as regards the criminal proceedings (i.e. the complaints made in app. no. 4678/07 lodged on 29 December 2006)
73. As already noted above, the Court is of the opinion that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court had ordered their reopening (see paragraphs 57 and 11 above, in that order). The applicant ’ s complaints as regards their fairness are therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
74. Concerning the length of the criminal proceedings prior to their reopening, the Court notes that the Convention had entered into force in respect of Serbia on 3 March 2004 and that by 19 July 2006 these proceedings had been terminated (see paragraph 9 above; see also Eckle v. Germany, 15 July 1982, § 84, Series A no. 51). The case in question had therefore lasted for a period of approximately two years and four months within the Court ’ s competence rarione temporis, during which time the charges brought against the applicant had been examined at two instances. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
75. Turning, lastly, to the issue of fairness and length of the criminal proceedings following their reopening, and for the reasons already explained at paragraphs 56 and 57 above, the Court considers that this part of the application is premature (see paragraph 13 above). It must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. The Court ’ s assessment as regards the civil and constitutional proceedings (i.e. the complaints made in app. no. 50591/12 lodged on 28 May 2012)
76. The Court notes that applicant has never specifically complained before the Constitutional Court about the length of the civil defamation suit (see paragraph 19 above). This complaint must therefore, bearing particularly in mind the date of its introduction, be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies ( see Vinčić, cited above, § 51; see also paragraph 56 above ).
77. Concerning the length of the proceedings before the Constitutional Court, it is recalled that the reasonableness of these proceedings must be assessed in the light of the specific circumstances of the case, regard being had in particular to its complexity, the parties ’ conduct, and the importance of the issues at stake for the applicant (see, for example, Šikić v. Croatia, no. 9143/08, § 35, 15 July 2010 ). It is further understood that its role of guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Šikić v. Croatia, no. 9143/08, § 37, 15 July 2010). Turning to the matter at hand, the Court notes that the impugned proceedings had been instituted on 29 May 2009 (see paragraph 19 above). Some two and a half years later, on 21 December 2011, the applicant was informed of the adoption of the decision in her case, although the decision itself would seem to have been served by 23 April 20 12 (see paragraph 24 above). Finally, the applicant ’ s constitutional complaint was of some complexity, and the applicant herself had repeatedly supplemented the original constitutional appeal with additional submissions (see paragraphs 19, 20 and 22 above). In such circumstances, the underlying civil defamation proceeding having themselves lasted for approximately two years and four months (see paragraphs 14-17 above) and despite the applicant ’ s advanced age and the seriousness of the issues at stake for her, the Court cannot but reject this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast to, for example, Nikolac v. Croatia, no. 17117/06, § 17, 10 July 2008, Butković v. Croatia, no. 32264/03, § 27, 24 May 2007, and Šikić, cited above, § 37, where the Court found violations of the reasonable time requirement contained in Article 6 § 1 of the Convention in urgent cases involving labour-related and housing issues; the constitutional proceedings therein had lasted for approximately three years and four months, three years and six months, and three years and nine months, respectively, and considered together with the prior civil proceedings had lasted globally for approximately seven years, six and a half years, and five years within the Court ’ s competence ratione temporis respectively).
IV. OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION
78. The applicant noted that her former lawyer, who had represented her before the Court prior to Mr Dodig, had twice failed to receive the Court ’ s correspondence addressed to his office. The applicant maintained that the respondent State had every reason to engage in this interference, hoping that the Court would conclude that she had lost interest in her Strasbourg application.
79. The Government made no comment in this regard.
80. Article 34 of the Convention provides as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
81. According to the Court ’ s case-law, a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000; and Ergi v. Turkey, judgment of 28 July 1998, § 105, Reports 1998-IV).
82. The Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002).
83. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances ( ibid .).
84. Turning to the present case, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant ’ s exercise of her right of individual petition, it being noted that the Court cannot speculate as to who may have interfered with the correspondence addressed to the applicant ’ s former counsel and in which context (see, mutatis mutandis, Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011).
85. In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
86. 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
87. The applicant claimed EUR 77 ,000 and EUR 7,000 in respect of pecuniary and non-pecuniary damage, respectively.
88. The Government contested these claims.
89. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6 ,000 in respect of the non- pecuniary damage suffered as a consequence of the violation of her rights guaranteed under Article 10 of the Convention.
90. As regards the pecuniary damage, the Court notes that in May 2012 the applicant ’ s monthly pension was approximately EUR 170. After deductions, the applicant was left with some EUR 60 on which to live. Further, by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 through the enforcement proceedings. However, given the accrued and future interest, she will have to continue with the payments for approximately another two years, and pay an additional EUR 2,000. In these circumstances, having already found the said interference to be disproportionate within the meaning of Article 10 of the Convention and without speculating on the exact amount of damages and costs, plus interest, which might have been adequate, the Court considers it reasonable to award the applicant the additional sum of EUR 5,500 for the pecuniary damage suffered.
B. Costs and expenses
91. The applicants also claimed a total of EUR 2,736 for the costs and expenses incurred domestically, as well as those incurred before the Court.
92. The Government contested this claim.
93. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are also reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,200 covering costs under all heads.
C. Default interest
94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.