FOURTH SECTION
CASE OF RADIO BROADCASTING COMPANY B92 AD v. SERBIA
(Application no. 67369/16)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Disproportionate civil sanctioning of applicant company for TV news broadcast and publication of an online article defaming a public official • Absence of relevant and sufficient reasons • Sanctions (damages, removal of article from internet portal and publication of judgment) capable of having a dissuasive effect on the exercise of the applicant company’s right to freedom of expression • Domestic courts’ failure to apply standards in conformity with principles embodied in Art 10 or to base decisions on an acceptable assessment of the relevant facts • Narrow margin of appreciation overstepped
 
STRASBOURG
5 September 2023
 
FINAL
 
05/12/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Radio Broadcasting Company B92 AD v. Serbia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Branko Lubarda,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Anne Louise Bormann, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 67369/16) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Radio Broadcasting Company B92 AD - a company registered in Serbia (“the applicant”), on 9 November 2016;
the decision to give notice to the Serbian Government (“the Government”) of the complaint concerning the applicant’s freedom of expression and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 9 May and 4 July 2023,
Delivers the following judgment, which was adopted on the latter date:
INTRODUCTION
1. The present case concerns the applicant company’s freedom of expression under Article 10 of the Convention. The applicant company complains in particular that the compensation that it was ordered to pay to a public official in civil proceedings brought by the latter, constituted an interference with its right to impart information which was not necessary in a democratic society. THE FACTS
2. The applicant is a company registered in Belgrade, Serbia, in 2005. It was represented by Ms K. Savović, a lawyer practising in Belgrade. 3. The Government were represented by their Agent, Ms Z. Jadrijević Mladar. 4. The facts of the case may be summarised as follows.
background information
5. The applicant company is the owner of the television channel B92 TV and the Internet portal B92.net. According to its financial report for 2020, the applicant company made a profit of 336,527,000 Serbian dinars (RSD) (approximately 2,854,000 euros (EUR)) in that year. 6. The Anti-Corruption Division (Odsek za borbu protiv korupcije – “the ACD”) is a division within the Fight Against Organised Financial Crime Department (Odeljenje za borbu protiv organizovanog finansijskog kriminala) of the Criminal Police Directorate (Uprava kriminalističke policije) in the Ministry of the Interior of the respondent State. 7. During an unspecified period before 27 November 2011, the applicant company’s journalists carried out investigative research for a documentary television series, “Insider – Buying and Selling Health”, relating to the procurement of AH1N1 vaccines in 2009. In the course of its research, the applicant company came into possession of “official note no. 14/11” (službena beleška br. 14/11), prepared by the ACD on 13 September 2011. More specifically, on an unspecified date the editor-in-chief of the applicant company’s news programme obtained the note in question from two police officers (see paragraph 25 below). There are no further details in this regard in the case file. 8. The note specified that ACD police officers had been conducting an investigation (postupaju i vrše provere) in the case in question from March or April 2009 until 13 September 2011. This had included various surveillance measures ordered by an investigating judge, temporary removal of documents, and interviews. The officers’ immediate superiors had been informed about their actions, as had the Deputy Special Prosecutor for Organised Crime, M.I. At the end of August and the beginning of September 2011 “the final phase had started” as the ACD police officers, their immediate superiors and the Office of the Special Prosecutor for Organised Crime (“the Special Prosecutor’s Office”) had concluded that all the necessary checks had been made. 9. The note specified that between 5 and 13 September 2011 five officials of the relevant services in the Ministry of the Interior had had several consultations with the Special Prosecutor and Deputy Special Prosecutor for Organised Crime, M.R. and M.I. During those consultations, the ACD officers had presented their view of the case, which was that there was a reasonable suspicion (osnovana sumnja) that six persons had committed the criminal offence of abuse of office, their intention being to favour the J. company, so as to obtain a privileged position for it and to enable it to make financial gain. The note named the six persons and specified their personal details, as well as what each could reasonably be suspected of having done. Among the six had been Z.P., an Assistant Minister of Health at the time. In respect of her it was specified that there was a reasonable suspicion that:
(a) she had concealed the fact that the Ministry of Health – that is, the Minister, T.M. – had already reserved more than three million doses of a certain vaccine, produced by the N. company, through N.’s distributor’s representative company – D. company from Valjevo – in July 2009 and she had left that information out of a proposal prepared for the government in November 2009 relating to the necessity of procuring AH1N1 pandemic vaccines;
(b) on behalf of the Ministry of Health, she and the Minister T.M. had led negotiations with another vaccine producer, which in September 2009 had proposed the procurement of another vaccine at a more favourable price without intermediaries and distributors; and
(c) after the Commission for the Implementation of Procurement of Pandemic Vaccines had made a report on all the bids, with a proposal as to which bidders should be selected, she had used her official position and hierarchical status to order one of the expert members of the Commission, who was also an employee in the department of the Ministry of Health run directly by Z.P., to make a new report on the bids, to be registered under the same number and date as the previous report, but in favour of the J. company. 10. The note further specified that the prosecutors had not accepted the ACD’s proposal. They had held that they could not take the case to court because of a lack of sufficient evidence to start an investigation in respect of the people mentioned in the ACD report who were employed by the Ministry of Health, and they had said that they would send a draft complaint. In the draft complaint proposed by the Deputy Special Prosecutor M.I. three people were named as suspects (S.V., former Director of the Republic Health Insurance Institute (Republički zavod za zdravstveno osiguranje); V.G., the director of the J. company; and Lj.P., the owner and the director of the D. company). Several Ministry officials, including the chief and the deputy chief of the Fight Against Organised Financial Crime Department, had agreed that the complaint as drafted did not correspond to the factual situation but that the prosecutors had insisted that the criminal complaint should be made only in respect of the three people named in their draft. The note stated that subsequently the ACD had made a new report, in which they had tried to show to the prosecutors that it had been “very difficult to leave the people from the Ministry of Health out of the case because the whole story [had been] taken out of context”. 11. The note specified that on 9 September 2011 further consultations had been held at the Special Prosecutor’s Office attended by the Special Prosecutor, his deputy, two chiefs and two officers from the Ministry of the Interior. During the meeting the Ministry officials had presented their draft criminal complaint, which now included fourteen people. All fourteen people had been named, and the complaint also indicated their personal details and what the ACD had considered them to have done. The list had included Z.P. and the same suspicions about her had been indicated as above (see paragraph 9 above). During the meeting the ACD had also presented audio recordings obtained in the course of telephone and other communications surveillance. 12. It appears that on an unspecified date before 29 November 2011 a criminal complaint was filed against the three people specified by the Special Prosecutor’s Office. INFORMATION PUBLISHED BY THE APPLICANT COMPANYInformation broadcast on the applicant company’s TV channel

13. On 27 November 2011 B92 TV broadcast the following in its 11 p.m. news slot:
“The police’s list of suspects included, among others, former Minister [T.M.], Assistant Minister [Z.P.], State Secretary of the Ministry of Health [N.K.] and the director of [the J. company, S.M.A.]. The police suspected them of abuse of office enabling [the J. company] to make an illegal financial gain to the detriment of the Serbian budget. According to the findings of Insider, twelve names disappeared from the list of suspects after the police consulted with the prosecution. The police had concluded during the pre-trial proceedings that there was a reason to suspect (osnov sumnje) that fourteen people were involved in the abuses.”
14. On 28 November 2011 the 10 a.m., 6.30 p.m. and 11 p.m. news slots on B92 TV included the same first two sentences that had been broadcast the day before. 15. On 29 November 2011 the 6.30 p.m. and 11 p.m. news slots on B92 TV broadcast the following, with a photograph of Z.P.:
“Apart from [S.V., V.G. and Lj.P.], against whom a criminal complaint has been filed and who have been arrested, ..., the police’s list of suspects also included, among others, [T.M., Z.P. and N.K.] ...”
16. On 13 December 2011 on the 4 p.m., 6.30 p.m. and 11 p.m. news slots on B92 TV, the following was broadcast, with a photograph of Z.P.:
“... the police’s list of suspects included, among others, former Minister [T.M.], his associates [Z.P. and N.K.] ... In the end, a criminal complaint was only filed against the three people who were arrested ...”
17. On 14 December 2011 the 6.30 pm B92 TV news broadcast included the following statement, with a photograph of Z.P.:
“... the police established (utvrdila) that there was a reason to suspect fourteen people of having participated in the abuse, but the criminal complaint was eventually filed against only three people. According to our information, the former Minister [T.M.] and his associates [Z.P. and N.K.] were among the others left out of the criminal complaint ...ˮ
Publications on the applicant company’s Internet portal
18. As of 27 November 2011 the following information was published under the heading “Insider: Selective justice?” on B92.net:
“In the pre-trial proceedings regarding the vaccines, the police suspected [T.M.] and his associates [Z.P. and N.K., and S.M.A.]. According to the findings of Insider, the list of those whom, in the opinion of the police, there was reason to suspect of having participated in the abuses included, among others, former Minister [T.M.], Assistant Minister [Z.P.], State Secretary of the Ministry of Health [N.K. and the director of the J. company, S.M.A.]. The police also suspected them of abuse of office enabling [the J. company] to make an illegal financial gain to the detriment of the Serbian budget. According to the findings of Insider, twelve names disappeared from the list of suspects after the police had consulted with the prosecutor’s office ... In the case concerning the procurement of vaccines it turns out that the police effectively abandoned a criminal complaint against people whom they themselves had concluded there was reason to suspect of having participated in the abuses.”
19. The same article also contained the following:
“According to the findings of Insider, the former Minister of Health, his Assistant Minister and the State Secretary of that Ministry, as well as the former director of [the J. company], were on the list of fourteen persons who had been involved (obuhvaćeni) in the pre-trial proceedings relating to the procurement of vaccines against swine flu. Even though it is an open secret that in Serbia there are often arrests for political reasons or that, for the same reasons, many get protected, this is now the first evidence that such a thing happened during the procurement of vaccines. Except for [three persons] against whom a criminal complaint was filed and who were arrested, the police suspected twelve more people of abuse of the vaccine procurement process .... There is even an official note registered in the Ministry of the Interior indicating that there was pressure to exclude many of those who had been suspected, that is, to ensure that no criminal complaint was filed against them. It is not clear why the police would agree to such a request if they themselves had established that there were grounds for suspicion (osnov sumnje). ... According to the law, when the police establish that there are grounds for suspicion against someone they have a duty to file a criminal complaint, and it is up to the prosecutor’s office to decide whether to reject the complaint, request additional investigation or proceed further by filing an indictment. ... Insider sent two letters to the Ministry of the Interior asking why a criminal complaint had only been filed against three persons, that is, why they had left out twelve persons for whom, according to the police, there were grounds for suspicion. We received no reply! We sent the same question to the Office of the Special Prosecutor for Organised Crime. [They] blame it all (svaljuje sve) on the Ministry of the Interior and state that the police did not collect sufficient evidence against all the participants in the scheme. They claim that the investigation is not finished yet, but it is not clear from their answer against whom the investigation is being conducted ... The reply from the Office of the Special Prosecutor for Organised Crime: ‘The actions of other persons [involved] in the disputed procurement of the vaccines were analysed in pre-trial proceedings, but on the basis of the information and data collected by the police before filing the criminal complaint it could not be concluded that there were grounds for initiating proceedings against them. Therefore, except for the three persons named, nobody else had the status of suspect at this stage of the proceedings, so all other allegations are totally unfounded and arbitrary. However, that does not mean that the number of suspects is final at this moment. The point of the investigation is to collect all the available evidence and if it indicates other people’s guilt, the investigation will be extended to them.’ The whole case again raises suspicion that justice in Serbia is selective because the result of the investigation at the moment is a criminal complaint that involves only a part of a bigger story. It was filed against three persons, who, according to the information that Insider obtained by analysing documentation obtained through the Access to Information Act, could hardly have done everything that they are accused of without the knowledge of their superiors in the relevant institutions.”
20. As of 27 November 2011 the following information was published in an article entitled “The Ministry reacts to Insider”:
“In its last programme in the series ‘Buying and Selling Health’, Insider revealed that in the pre-trial proceedings concerning vaccine procurement the police had suspected [T.M. and his associates Z.P., N.K. and S.M.A.]”. Z.P.’s request to publish a denial
21. On an unspecified date Z.P. asked the applicant company to publish the following denial of the information published on 27 November 2011 (see paragraphs 13 and 18-19 above):
“In its Insider series B92 generally tries to shed light on various social phenomena, which is something that in general can be accepted and supported as a contribution to freedom of information, but the way in which [it published] the information on 27  November 2011 ... on the B92 news and its Internet portal under the heading ‘Insider: Selective justice’ ... B92 ... amounted to taking over the role of [both] investigative bodies and ... the court, given that in the absence of sufficient facts, it resorted to methods which the free press must strongly stand against (suprostaviti), and which are ways of imparting untruths and of improperly influencing judicial bodies. In that way, by publishing unverified facts, that is, facts that are not founded on solid evidence, B92 contributes towards disinformation of the public and conducts public lynchings of individuals, in this case me ... As my name was mentioned in a negative context in the aforementioned information disseminated by B92 for no good reason (neosnovano), apart from its being in the official statement of the prosecutor’s office, to which B92 pays no attention (na koje se B92 ne obazire) when drawing its own conclusions and tailoring the truth, then for the protection of my honour, reputation and the professional dignity with which I have carried out my work solely in accordance with the law, and taking care above all to protect the public interest, I cannot but bring a private action against B92 for the criminal offence of defamation ... and for making unacceptable public comments about court proceedings ...”
22. The applicant company published only the part referring to Z.P.’s intention to institute proceedings against the applicant company. The ensuing civil proceedingsProceedings before the Belgrade High Court

23. On 27 April 2012 Z.P. instituted civil proceedings against the applicant company in the Belgrade High Court (Viši sud) seeking:
(a) compensation for non-pecuniary damage, specifically for mental anguish caused by a violation of her honour and reputation because of inaccurate information broadcast by B92 TV News between 27 November and 14 December 2011 and published on B92.net in the articles “Insider: Selective justice?” and “The Ministry reacts to Insider” (see paragraphs 13-18 and 20 above); and
(b) an order for the applicant company to publish the court’s judgment and remove the two articles from its Internet portal. She submitted, in particular, that it was not true that she had been suspected of abuse of office, or of anything else, nor had she been removed from the alleged list of suspects because of illicit influence (nedozvoljeni uticaj). It appears from the case file that on an unspecified date thereafter Z.P. extended her claim to include the editor-in-chief as well. 24. The applicant company contested the claim and submitted that accepting it would constitute a harsh violation of the right to freedom of opinion and expression. It submitted, in substance, that the public had had a justifiable interest in being informed about the topic and the person in question. The information had originated from an official note of the relevant State body, namely the ACD of the Ministry of the Interior (see paragraphs 7-11 above), which the applicant company had obtained during its investigative research into the procurement of vaccines. Even if that information had not been accurate and complete the applicant company should not be held liable given the provisions of Article 82 of the Public Information Act (see paragraph 43 below), as the information had been accurately cited from a document of a relevant State body. 25. In the course of the proceedings, among other things, the court heard the editor-in-chief of the applicant company’s news programme and the journalist who had conducted the research for the documentary series. The editor-in-chief stated that two police officers had given him the official note in question, and he had considered that it was important to publish it. The journalist stated that Z.P. had wanted to make a statement, but when she (the journalist) had contacted her, Z.P. had declined to make any comment (odustala od davanja iskaza). 26. On 23 October 2013 the Belgrade High Court ruled partly in favour of Z.P. and ordered the applicant company to:
(a) pay Z.P. RSD 200,000 (approximately EUR 1,750) with statutory interest by way of compensation for non-pecuniary damage, specifically for mental anguish suffered on account of a violation of her honour and reputation, and RSD 113,100 (approximately EUR 990) for costs; and
(b) remove the article “Insider: Selective justice?” from its Internet portal. It also ordered the editor-in-chief to publish the judgment. The court dismissed Z.P.’s claim in respect of the article “The Ministry reacts to Insider”. 27. The court found that on the dates indicated the applicant company had published information alleging that the claimant had been on the police list of suspects, that in the pre-trial proceedings she had been suspected of abuse of office, and that she had been left off the list of suspects because of pressure from the Special Prosecutor’s Office, as a result of which no criminal complaint had been filed against her. The court also noted the rest of the online article published on 27 November 2011 (see paragraph 19 above). In addition to this, Z.P.’s photograph had been shown on television without her consent. The court further found that no criminal complaint or request for investigation had been filed against Z.P. between 2003 and 30 May 2012. The applicant company had not used due diligence and so had not discovered the falsity (neistinitost), that is, the incompleteness of the information in question, in that it had not contacted the claimant before publishing the information in issue or questioned her in that regard. Instead, it had relied on a document which contained operational findings of the police in pre-trial proceedings and as such did not constitute an official document of a relevant State body (zvanični dokument nadležnog državnog organa) within the meaning of Article 82 of the Public Information Act. The court also noted that the claimant had denied that she had been a State or a political official (nosilac državne i političke funkcije) at the relevant time, and found that the applicant company had not brought any evidence of the fact in issue. The court referred to, among other things, Article 3 § 1, Article 9 § 1, Article 79, Article 80 § 1 and Article 82 of the Public Information Act, and Articles 199 and 200 of the Obligations Act (see paragraphs 34, 36, 41-43, and 46-47 below). Proceedings before the Belgrade Court of Appeal
28. On 17 March 2014 the applicant company appealed. It relied on Article 10 of the Convention and referred to the Court’s case-law. 29. On 5 June 2014 the Belgrade Court of Appeal (Apelacioni sud) upheld the first-instance judgment and, in substance, endorsed its reasoning. In particular, the court found that before publishing the information in question the applicant company had had a duty to verify its origin, accuracy and completeness, which it had failed to do, relying instead on the official note of the Ministry of the Interior, which could not be considered a document of a relevant State body within the meaning of Article 82 of the Public Information Act. A criminal complaint would have constituted such a document, but none had ever been filed against Z.P. Since the applicant company had failed to act in compliance with Article 3 of the Public Information Act, the court dismissed its submission that the information had been obtained from a reliable source in the Ministry of the Interior and published in view of a prevailing public interest in knowing about it. The court also found that the applicant company’s reference to Article 10 of the Convention was of no relevance, given that freedom of expression could be limited for the protection of the rights and reputation of others, which were also protected by Article 8 of the Convention. In view of the untrue and unverified information that the claimant had been on the police list of suspects, that she had been suspected of abuse of office in pre-trial proceedings, and that she had been removed from the list after pressure from the Special Prosecutor’s Office, all of which were statements of fact, the court found a violation of the claimant’s honour and reputation. Proceedings before the Constitutional Court
30. On 30 July 2014 the applicant company lodged a constitutional appeal. It referred to its freedom of expression and the relevant case-law of the Court. 31. On 18 May 2016 the Constitutional Court dismissed the applicant company’s constitutional appeal. It found that the judgments in question had interfered with the applicant company’s freedom of expression, but that the interference had been necessary for the protection of the claimant’s rights and reputation. It found that the civil courts, when balancing the rights of the claimant and the applicant company, had assessed all the relevant circumstances and had given clear and constitutionally acceptable reasons for their decision. It also found that the amount of compensation awarded and the order that the judgment be published had been proportionate. 32. In particular, the claimant had been marked out (označena) as one of the perpetrators of the criminal offence of abuse of office, but she had not been prosecuted because of pressure on the Ministry of the Interior from the prosecutors. The court found that the information in question had been published so that the public would be informed about the events surrounding the swine flu vaccine procurement controversy. It also held that the claimant had been a public official (nosilac javne funkcije) and that the degree of tolerance which she should have shown was supposed to be greater, given that the disputed information related to alleged irregularities in her work and not to her private life. The statements could be considered facts, the accuracy and completeness of which were susceptible to verification, but which the applicant company had failed to check with due diligence, particularly in respect of the “pressure” that the special prosecutors were reported to have exerted on the Ministry of the Interior, supposedly resulting in the “abandonment” of the prosecution of the claimant. The court therefore found that the High Court’s and the Court of Appeal’s findings – that the applicant company could not be relieved of its liability – had not been arbitrary. 33. The Constitutional Court also found that the official note drawn up in the course of communication between the relevant unit of the Ministry of the Interior and the Special Prosecutor’s Office during the pre-trial proceedings had preceded the filing of the criminal complaints. The court considered that the filing of the complaint against three people had been the result of joint work by the Ministry of the Interior and the Special Prosecutor’s Office, so it could not reasonably be inferred that the decision not to file a criminal complaint against certain people had been the result of pressure by the Special Prosecutors on the Ministry. Rather, the Special Prosecutor’s Office had considered that there had not been sufficient evidence to open an investigation in respect of the people employed at the Ministry of Health, as specified in the official note; this indicated that the Special Prosecutor’s Office had analysed the evidence provided by the Ministry of the Interior and that its opinion that there was no reasonable suspicion in respect of certain people had been the result of an assessment of the available evidence. In addition, in accordance with the Code of Criminal Procedure as in force at the time, the public prosecutor was in charge of directing (rukovodi) pre-trial proceedings, and the Ministry of the Interior and other State bodies had to act on every request of the prosecutor. RELEVANT LEGAL FRAMEWORK AND PRACTICE
relevant domestic lawThe Constitution (Ustav, published in the Official Gazette of the Republic of Serbia ("OG RS") no. 98/06)

33. Article 46 of the Constitution guarantees freedom of thought and expression, and the freedom to seek, receive and impart information and ideas. It also provides that freedom of expression may be restricted if that is necessary to protect the reputation of others. The 2003 Public Information Act (Zakon o javnom informisanju, published in OG RS nos. 43/03, 61/05 and 71/09)
34. At the material time Article 3 § 1 of this Act provided that prior to the publication of information regarding “an event, an occurrence or a certain person”, the journalist and the editor-in-chief were to “check its origin, accuracy and completeness” with due diligence. Paragraph 2 provided that journalists and the editors-in-chief of media outlets were to broadcast and publish the information, ideas and opinions of others accurately and comprehensively. 35. Article 4 provided that media outlets could freely publish ideas, information and opinions on “occurrences, events and persons” that the public had a justifiable interest in knowing about, unless legislation provided otherwise. This applied regardless of the manner in which the information had been obtained. 36. Article 9 provided, among other things, that the right to the protection of privacy was to be limited for holders of State or political positions if the information in question was of public relevance given their functions. The rights of such persons were to be limited in proportion to the justifiable interest of the public in each case. 37. Article 37 provided that a media outlet could not describe anyone as the perpetrator of a punishable offence or pronounce anyone guilty of an offence in the absence of a final judicial or other decision given in that connection. 38. Article 47 § 1 provided that a person whose right or interest could be violated by the publication of information could ask the editor-in-chief to publish a denial, without payment. 39. Article 57 provided that a response and a correction of the disputed information had to be published unchanged, without omissions or additions. Only necessary proofreading changes which did not change the meaning would be allowed. 40. Article 58 provided that the editor-in-chief was not obliged to publish a response, that is, the court would not order the editor-in-chief to publish a response if, among other reasons, the response did not contain a statement of fact but an opinion. Reasons for not publishing the response also applied to not publishing part of the response. 41. Article 79 provided, among other things, that any person who suffered pecuniary and/or non-pecuniary harm as a consequence of incorrect or incomplete information being published by a media outlet or because of the publication of other information in breach of this Act was entitled to adequate compensation, quite apart from any other available redress. 42. Article 80 provided, among other things, that where the editor-in-chief and the founder of a media outlet could have established the inaccuracy or incompleteness of the information by due diligence prior to its publication, they were to bear joint liability for any pecuniary and/or non-pecuniary damage caused by the publication of the information in question. The same obligation also applied, for example, when harm had been caused by the “impermissible publication” of accurate information (for example, regarding a person’s private life or accusations involving the commission of a criminal offence). 43. Article 82 provided that the journalist, editor-in-chief and owner of the media outlet were not liable for the damage if the untrue or incomplete information had been accurately reported from a document of a relevant State body (nadležnog državnog organa). 44. This Act was subsequently amended following decisions of the Constitutional Court, and was ultimately repealed and replaced by other legislation in 2014. Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89 and 57/89, the Official Gazette of the Federal Republic of Yugoslavia (“OG FRY”) no. 31/1993, and OG RS no. 18/2020)
45. Article 154 of this Act defines the different grounds for claiming civil compensation. 46. Article 199 provides that in the case of a violation of personal rights the court may order publication of a judgment or rectification of a publication, or may order the person who caused the damage to retract the statements which caused the violation. 47. Article 200 provides, among other things, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his or her right to reputation, personal integrity, liberty or other personal rights (prava ličnosti) is entitled to seek financial compensation in the civil courts and, in addition, to request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. Code of Criminal Procedure (Zakonik o krivičnom postupku; published in OG FRY nos. 70/2001 and 68/2002, and in OG RS nos. 58/2004, 85/2005, 115/2005, 85/2005, 49/2007, 20/2009, 72/2009 and 76/2010)
48. Articles 504a-504ć of the Code of Criminal Procedure as in force at the material time set out provisions governing the procedure as regards organised crime, corruption and other exceptionally serious criminal offences. Criminal offences relating to corruption included, among other things, the criminal offence of abuse of office, even when it was not committed by an organised criminal group. Article 504v provided, in particular, that information about the pre-trial proceedings and investigation in respect of such criminal offences was an official secret (službena tajna). This information could not be revealed by the officials (službena lica) or other persons involved in the proceedings who had come into possession of it. The information could be published only with the written consent of the public prosecutor in charge or an investigating judge. Anti-Corruption Agency Act (Zakon o Agenciji za borbu protiv korupcije; published in the OG RS nos. 97/08, 53/10, 66/11, 67/13, 112/13, 8/15 and 88/19)
49. Article 2 of this Act provided, among other things, that “an official” was any person elected, appointed or nominated to public bodies of the Republic of Serbia, and that a “public office” (javna funkcija) was a position in a public body of the Republic of Serbia or a position occupied by a person elected by Parliament involving management, decision-making or adoption of general or individual decisions. Free Access to Information of Public Interest Act 2004 (Zakon o slobodnom pristupu informacijama od javnog značaja, published in the OG RS nos. 120/2004, 54/2007, 104/2009, 36/2010 and 105/2021)
50. This Act provides for a right of free access to information of public interest which is in the possession of public authorities, in order to realise and protect the public interest in transparency. 51. Article 2 provides that information of public interest, within the meaning of this Act, is information in the possession of a public body, created in the course of its work or in relation thereto, in documentary form and pertaining to anything that the public has a justifiable interest in knowing about. In order for information to be considered of public interest it is irrelevant whether the source of it was the public body or another person, how the information was transmitted, the date of its creation, the way it was learnt of, or any other similar characteristics. 52. Article 9 provides, among other things, that the authorities can refuse access to information of public interest if such access would jeopardise, obstruct or hamper the prevention or detection of criminal offences or the conduct of pre-trial proceedings.
relevant domestic practice
53. The Government submitted relevant domestic case-law. Between 18 June 2007 and 3 March 2016 various first-instance courts in Serbia delivered fourteen judgments awarding compensation for non-pecuniary damage on account of a violation of a person’s right to his or her reputation and honour. All the judgments were upheld by various second-instance courts between 5 February 2008 and 18 August 2016. The amounts awarded ranged between RSD 50,000 and RSD 550,000. THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
54. The applicant company complained that the State had violated its right to freedom of expression as guaranteed under Article 10 of the Convention, in particular its right to impart information, by ordering it to pay compensation and costs to Z.P. in civil proceedings. 55. Article 10 of the Convention 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 ... 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...”
Admissibility
56. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant company
57. The applicant company reaffirmed its complaint and submitted that the interference with its freedom of expression had not been necessary in a democratic society. The information in question had not been a privately motivated attack on Z.P. but a faithful transmission of information contained in the document of a State body. The applicant company’s intention had not been to violate her honour and reputation or her right to be presumed innocent but to impart information that would contribute to a debate of public interest, that is, irregularities in the public procurement of AH1N1 vaccines in 2009 and pressure on the investigative bodies in that connection, where documents such as official notes were crucial and among the few documents from which information could be obtained. The claimant had been a public official and therefore had to be more tolerant of criticism. 58. The subject of Z.P.’s court claim had been the specific information broadcast in the regular news programme and published in the news article “Insider: Selective justice?” (see paragraph 23 above). The domestic judgments had not concerned the information contained in the investigative television series, or in the article “The Ministry reacts to Insider”. 59. The applicant company submitted that it had never stated that Z.P. had been suspected of abuse of office by the Special Prosecutor’s Office, that charges had been brought against her or that there had been improper influence on the law-enforcement agencies. All the information it had published had clearly stated that the police, and not the Special Prosecutor’s Office, had made a list of people whom they had reason to suspect of having committed the criminal offence of abuse of office in connection with the procurement of AH1N1 vaccines in 2009, and that there had been a disagreement between the police and the prosecutors as regards the scope of the criminal complaint. The information in question had originated from an official note of a relevant State body, that is, the Anti-Corruption Department of the Ministry of the Interior, the contents of which had not been disputed either in the domestic proceedings or by the Government, and which the applicant company had obtained during its investigative research into the procurement of AH1N1 vaccines. As it had accurately transmitted the information from the document of a State body, it had not been required to verify it further. By publishing it, the applicant company had fulfilled its duty to impart information of significant public interest. Even if the information had not been true, the applicant company should not have been found liable, in accordance with Article 82 of the Public Information Act (see paragraph 43 above). 60. The applicant company contended that journalists should be allowed some degree of exaggeration or even provocation and the fact that it had written that “many [got] protected” was consistent with its freedom of expression, especially as it had been made clear that those statements had been based on the above-mentioned disagreement between the two bodies in respect of the criminal complaint. 61. The fact that the applicant company had not been subject to criminal proceedings did not change the fact that its freedom of expression had been violated as it should not have been subjected to any proceedings at all. Its financial report for 2020 (see paragraph 5 above) was irrelevant as it did not refer to the year when the compensation had been awarded. It had indeed refused to publish part of Z.P.’s denial, but only because it had not contained a statement of fact but rather her opinion of the applicant company, and thus had not been in line with Article 58 of the Public Information Act (see paragraph 40 above). 62. The applicant company referred to the Court’s case-law, in particular to Bladet Tromsø and Stensaas v. Norway [GC] (no. 21980/93, ECHR 1999‑III), Colombani and Others v. France (no. 51279/99, ECHR 2002-V), and Yordanova and Toshev v. Bulgaria (no. 5126/05, 2 October 2012). (b)   The Government
63. The Government submitted that there had been no violation of Article 10 of the Convention as the interference with the applicant company’s freedom of expression had been necessary in a democratic society, as to which the domestic courts had given sufficient reasons. The applicant company had not been subject to criminal proceedings nor had a duty been imposed on it to prove the accuracy of a value judgment. The amount awarded corresponded to the common practice of the national courts (see paragraph 53 above); it had been neither excessive nor restrictive, nor had it diminished the applicant company’s capacity to conduct business, given its net profit (see paragraph 5 above). 64. The Government contested the applicant company’s submission that the domestic courts’ decisions had not pertained to the television series or to the information contained in the article “The Ministry reacts to Insider” (see paragraph 58 above). Almost all the domestic decisions had cited the article and the television series so the allegations therein had been relevant. In any event, the information had provided part of the context and had to be taken into account. 65. The Government argued that the applicant company had published inaccurate information, namely that Z.P. had concealed the fact that vaccines had been already ordered, that there had been direct negotiations with another vaccine producer who had made a much more favourable offer, and that she had ordered her subordinate to adjust the conditions of the public procurement procedure so as to favour one particular company. This could have easily created an impression of her guilt, thus violating her right to the presumption of innocence, in breach of Article 37 of the Public Information Act (see paragraph 37 above). The applicant company had also alleged that the Ministry of the Interior and the Special Prosecutor’s Office had considered Z.P. a suspect in an ongoing investigation, and that she had been neither charged nor prosecuted as a result of the improper influence of the Special Prosecutor’s Office on the police. Exaggeration and provocative language were permissible only in the expression of value judgments, but these were all statements of fact which had not been verified by the applicant company. Verifying such claims fell within the duties and responsibilities inherent in the practice of journalism, especially those claims that had not been contained in the note, such as that there had been improper influence on the law-enforcement agencies. This had affected both Z.P.’s private and professional life and could constitute a breach of Article 8. 66. The Ministry’s note, the single document on which the applicant company had relied, in no way supported the claims of improper influence. In any event, it should not be treated as relevant, since the Special Prosecutor’s Office was the relevant authority to decide whether Z.P. was a suspect. The note contained only a summary of operational information collected at the pre-trial stage, which might change substantially as more information was gathered. That was also why the courts had found that it was not a document of a relevant State body. In any event, the national courts were in a better position than an international judge to determine whether a document was an official document or not. 67. The Government submitted that the present case differed from the cases referred to by the applicant company (see paragraph 62 above), as in those cases the applicants had used what had been indisputably official reports, or the relevant informal statement had been made by a prosecutor in the case.

Outcome for Article 10: violation