CASE OF LEPOJIC v. SERBIA

1. The case originated in an application (no. 13909/05) against the State Union of Serbia and Montenegro, lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by its national Mr Zoran Lepojić (“the applicant”) on 6 April 2005. On 3 June 2006 Serbia had taken the place of the State Union of Serbia and Montenegro as a High Contracting Party to the Convention (see paragraph 38 below).
2. The applicant, who had been granted legal aid, was represented before the Court by the Belgrade Centre for Human Rights, a non-governmental human rights organisation based in Serbia. 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.
3. The applicant complained that he had suffered a breach of his right to freedom of expression stemming from his criminal conviction and the subsequent civil court judgment, ordering him to pay damages in respect of the same published article.
4. On 12 January 2006 the Court decided to communicate the application to the Government. Under Article 29 § 3 of the Convention, it was also decided that the merits of the application would be examined together with its admissibility.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1975 and currently lives in Babušnica. On 25 April 2005 he was formally certified as unemployed by the respondent State's authorities.
A. The article and the ensuing proceedings
6. The applicant was the President of the Babušnica branch of the Demo-Christian Party of Serbia ( Demohrišćanska stranka Srbije ) and a member of the Central Board ( Glavni odbor ) of the same political party.
7. In August of 2002, during an election campaign, an article written by the applicant, entitled “A Despotic Mayor” ( Nasilnički predsednik ), appeared in issue no. 1, page 10, of a newsletter called Narodne lužnicke novine. In the relevant part, this piece read as follows:
“The citizens of the Municipality of Babušnica have not had a Mayor for quite some time now because the former Mayor [P.J.] has been expelled from JUL [a political party] and has thus lost his mandate by virtue of law ... Despite the official Opinion of the Ministry of Justice and Local Self-Government that he cannot continue being the Mayor in accordance with the Local Government Act ... [P.J.] ... considers it no sin to stay on ... [in this capacity] ... because he is ... indispensable for ... [the Municipality's] ... future development and prosperity ...
Why is [P.J.] pushing so hard to remain as the fictitious Mayor of Babušnica, committing at the same time, as he is, legal infractions amounting to crimes ... Perhaps he needs the position of Mayor to defend his personal integrity which has been seriously threatened by the criminal complaints filed against him, indicating that he had abused his authority as the Director of a State-owned company called Lisca in order to acquire enormous material gain? ... [P.J.] ... well knows that ... [as a former Mayor] ... his position as the Director of ... Lisca, where he is suspected of having committed certain criminal offences, would also be seriously jeopardised. He understands that ... [as an ordinary citizen] ... he would no longer ... [carry any weight] ... with the local [police chiefs and others] ...
Therefore, ... in his'JUL euphoria', in line with the slogan “money talks” [ para vrti gde burgija neće ] and for his own existential needs, [P.J.] has continued with his near-insane spending of the money belonging to the citizens of the Municipality [ sumanuto troši novac građana Opštine ] on ... sponsorships ... [and] ... gala luncheons ... not understanding that his time is up and that his place is in the political dustbin ... ”
8. In response to the publication of this article, on 12 September 2002, the Mayor filed a private criminal action ( privatna krivična tužba ) against the applicant with the Municipal Court in Babušnica (“the Municipal Court”).
9. On 11 June 2003 the Municipal Court found the applicant guilty of criminal defamation ( kleveta ) and ordered him to pay a fine in the amount of 15,000 dinars (“CSD”) plus CSD 11,000 for costs, which was at that time equivalent to approximately 400 euros (“EUR”) in all. The fine, however, was suspended and was not to be enforced unless the applicant committed another crime within a year of the judgment becoming final.
10. In the operative part of this decision ( u izreci presude ) only the following text was found to amount to defamation, namely to be “untrue” and, as such, “harmful to the honour and reputation” of the Mayor (Mr P.J.):
“Therefore, ... in his'JUL euphoria', in line with the slogan “money talks” [ para vrti gde burgija neće ] and for his own existential needs, [P.J.] has continued with his near-insane spending of the money belonging to the citizens of the Municipality [ sumanuto troši novac građana Opštine ] on ... sponsorships ... [and] ... gala luncheons ... ”
11. In its reasoning, the court explained that the applicant had failed to prove the veracity of this statement or even that he had reasonable grounds to believe that it was true. Further, the use of the term “near-insane” ( sumanuto ) was deemed to imply the Mayor's mental illness. The court therefore held that the applicant's intent was not to inform the public but to belittle the Mayor. In conclusion, it noted that politicians have a special duty to communicate with each other and the public appropriately and stressed that a suspended sentence should “educationally influence the defendant so as to avoid committing ... similar crimes” in the future.
12. Concerning the remainder of the impugned article, however, the court ruled that it was not written with intent to disparage the Mayor and was thus a legitimate way of expressing one's political opinion, in accordance with Article 96 of the Criminal Code (see paragraph 27 below).
13. On 8 October 2004 the judgment of the Municipal Court was upheld on appeal by the District Court in Pirot (“the District Court”) and thereby became final. The District Court fully accepted the reasons given by the Municipal Court and added that, below the article at issue, there had been only the applicant's name and surname and no indication that it had been written by the President of the local branch of the Demo-Christian Party of Serbia.
14. On 8 February 2005 the Mayor filed a separate civil complaint for damages with the Municipal Court, alleging that he had suffered mental anguish as a result of the publication of the impugned article. The Mayor sought CSD 500,000 in compensation, which was at that time equivalent to approximately EUR 6,252.
15. On 18 March 2005 the Municipal Court ruled partly in favour of the Mayor and ordered the applicant to pay CSD 120,000 in compensation, together with default interest plus costs in the amount of CSD 39,000, which was at that time equivalent to approximately EUR 1,970 in all.
16. The applicant's argument that the Mayor, being an elected politician, had to accept criticism and display a greater degree of tolerance was dismissed, as was his reference to the relevant international standards (see paragraph 39 below). In so doing, the Municipal Court found: ( i ) that the applicant had already been convicted of defamation within the criminal proceedings; (ii) that the Mayor could be criticised but that such criticism had to be “constructive, argued and within the limits of decency”; (iii) that, in any event, criticism could not consist of untrue statements which “deeply offend” one's “honour, reputation and dignity”; and (iv) that the honour, reputation and dignity of the Mayor, as an elected official and Director of a very successful local company, “had more significance than ... [the honour, reputation and dignity] ... of an ordinary citizen”.
17. On 24 May 2005 the District Court rejected the applicant's appeal, except for the part concerning costs, which were reduced to CSD 24,200, at that time equivalent to approximately EUR 295. This court, further, noted that the applicant had relied on, inter alia, Article 10 of the Convention but then went on to repeat, in substance, the detailed reasoning of the Municipal Court, as described above. Finally, the District Court, added, as in the earlier criminal proceedings, that below the published article there had only been the applicant's name and surname and no indication that it had been written by the President of the local branch of the Demo-Christian Party of Serbia. In any event, the statements made by the applicant were untrue and his intent was to belittle the Mayor, rather than to inform the public or draw the attention of the authorities “to their obligations”. The compensation as well as the costs awarded would appear not to have been paid as yet.
B. Additional facts concerning the newsletter
18. Page 1 contained a statement by Mr M.L., at that time a candidate in the presidential elections supported by a number of allied political parties, including the Democratic Party and the Demo-Christian Party of Serbia. Page 1 also contained Mr M.L.'s short biography.
19. Page 2 contained an appeal by the Democratic Party. It invited the public to support the newsletter which was needed, inter alia, in order to counter the Mayor's self-promotion in other locally printed media.
20. Page 5 contained an open letter, addressed to the Babušnica police department, signed by the applicant in his capacity as the President of the municipal branch of the Demo-Christian Party of Serbia.
21. Page 6 contained photographs and campaign slogans in support of Mr M.L.
22. Most other pages also carried articles concerning various political issues and the newsletter itself was handed out free of charge.
23. On 23 May 2002 the Ministry of Justice and Local Self-Government informed the Municipality of Babušnica that, in accordance with the relevant legislation, a councillor's mandate in the Municipal Assembly ( odbornički mandat ) must be terminated if the councillor in question is expelled from the political party on whose list he was elected. The Ministry explained that the same provisions should also be applied in the Mayor's case.
24. On 16 September 2002, in a letter sent to the applicant, the Ministry of Internal Affairs stated that, as of 1996, they had been looking into a number of complaints indicating that the Mayor had abused his authority as the Director of a State-owned company called Lisca. Additional investigation had also been undertaken in response to the criminal complaints filed by the tax authorities ( finansijska policija ) and reports concerning each of these have since been forwarded to the competent public prosecutors.
25. On 18 December 2002 the Office of the Public Prosecutor of the Republic of Serbia sent a letter to the applicant's political party. Therein it stated that in 2000, 2001 and 2002 several criminal complaints, all of which concerned Lisca, were filed against the Mayor. Those lodged with the District Public Prosecutor's Office in Pirot were still being investigated by the local police while the Municipal Public Prosecutor's Office in Babušnica, having initially dismissed the criminal complaint, had also subsequently decided to reopen the investigation into the Mayor's conduct.
26. Finally, on 19 June 2003 the Ministry of Internal Affairs informed the applicant's political party, that all of their findings concerning Lisca had been sent to the District Public Prosecutor's Office in Pirot.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code of the Republic of Serbia ( 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, 42/89 and 21/90, as well as in the Official Gazette of the Republic of Serbia - OG RS - nos. 16/90, 49/92, 23/93, 67/93, 47/94, 17/95, 44/ 98, 10/02, 11 /02 and 80/02)
27. The relevant provisions of this Code read as follows:
“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.”
“ ... [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. 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, 36/77, 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, 37/93, 24/94 and 61/01)
28. The relevant provisions of this Code read as follows:
“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 may not exceed six months.
If the convicted person pays only a part of the fine [imposed], the rest shall accordingly be converted into imprisonment, and if the convicted person [subsequently] pays the remainder of the fine, his [or her] imprisonment shall be discontinued.”
“... [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.”
“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 nor more than five years in all (period of suspension ) ... ”
“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.”
“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 ... ”
“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.”
“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. Criminal Procedure Code ( Zakonik o krivičnom postupku, published in OG FRY nos. 70/01 and 68/02)
29. Article 3 § 1 enshrines the defendant's right to be presumed innocent until proved guilty by a final decision of a court of law.
30. Article 419 provides, inter alia, that the competent public prosecutor “may” ( može ) 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 ).
31. 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 partly, and order a re-trial before the lower courts. If the Supreme Court, however, finds that there has been a violation of the law in favour of the defendant, it shall only be authorised to declare so but shall leave the final judgment standing.
D. 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)
32. 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.
E. Civil Procedure Act 1977 ( Zakon o parničnom postupku; published in OG SFRY nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91, as well as in OG FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02)
33. Articles 35-40 provided general rules as regards the means of establishing the value of a plaintiff's civil claim.
34. Article 382 § 2 provided, specifically, that an appeal on points of law ( revizija ) was “not admissible” in pecuniary disputes where the “value of the part of the final judgment being contested” did “not exceed 300,000 ... dinars ...”.
35. In accordance with Articles 383 and 394-397, inter alia, the Supreme Court could have, had it accepted an appeal on points of law lodged by one of the parties concerned, overturned the impugned judgment or quashed it and ordered a re-trial before the lower courts.
F. Civil Procedure Act 2004 ( Zakon o parničnom postupku; published in OG RS no. 125/04)
36. 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.
37. This Act entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 § 4 of the Civil Procedure Act 2004, however, states that an appeal on points of law ( revizija ) shall be considered in accordance with the relevant provisions of the Civil Procedure Act 1977, if the proceedings at issue were instituted prior to 23 February 2005.
G. The Court of Serbia and Montenegro and the status of the State Union of Serbia and Montenegro
38. The relevant provisions concerning the Court of Serbia and Montenegro and the status of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).
III. RELEVANT INTERNATIONAL STANDARDS AND FINDINGS REFERRED TO BY THE APPLICANT
A. Declaration on the freedom of political debate in the media, adopted by the Committee of Ministers of the Council of Europe on 12 February 2004 at the 872 nd meeting of the Ministers'Deputies
39. The relevant provisions of this Declaration read as follows:
III. Public debate and scrutiny over political figures
“ Political figures have decided to appeal to the confidence of the public and accepted to subject themselves to public political debate and are therefore subject to close public scrutiny and potentially robust and strong public criticism through the media over the way in which they have carried out or carry out their functions. ”
VI. Reputation of political figures and public officials
“ Political figures should not enjoy greater protection of their reputation and other rights than other individuals, and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticise political figures. This principle also applies to public officials; derogations should only be permissible where they are strictly necessary to enable public officials to exercise their functions in a proper manner. ”
B. Concluding Observations of the United Nations Human Rights Committee: Serbia and Montenegro, 12 August 2004, CCPR/CO/81/SEMO
40. Paragraph 22 of these Observations reads as follows:
“ The Committee is concerned at the high number of proceedings initiated against journalists for media-related offences, in particular as a result of complaints filed by political personalities who feel that they have been subject to defamation because of their functions.
The State party, in its application of the law on criminal defamation, should take into consideration on the one hand the principle that the limits for acceptable criticism for public figures are wider than for private individuals, and on the other hand the provisions ... which do not allow restrictions to freedom of expression for political purposes .”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
41. The applicant complained under Article 10 about the breach of his right to freedom of expression given his criminal conviction and the subsequent civil judgment rendered against him in respect of the same published article.
42. Article 10 of the Convention, in the relevant part, 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 ...”
1. Compatibility ratione temporis
43. The Government argued that the applicant's complaints were incompatible with the provisions of the Convention ratione temporis. In particular, he had been found guilty and sentenced by the Municipal Court on 11 June 2003 and the respondent State had ratified the Convention on 3 March 2004. The “alleged interference” with the applicant's freedom of expression had thus occurred prior to the ratification while the subsequent criminal and civil judgments merely allowed for its subsistence thereafter (see paragraphs 9, 13, 15 and 17 above).
44. The applicant stated that his complaints were within the Court's competence ratione temporis because the actual interference with his rights had occurred not on 11 June 2003, when he was initially convicted by the Municipal Court, but on 8 October 2004 when the District Court upheld this conviction and it thereby became both final and legally binding. To hold otherwise would amount to a breach of his right to be presumed innocent until proved guilty in accordance with law (see paragraph 29 above). Finally, as regards the civil proceedings, the applicant recalled that they took place after the respondent State's ratification of the Convention on 3 March 2004.
45. The Court considers that the principal facts of the present case, namely the respondent State's interference with the applicant's freedom of expression, lay in the finality of his criminal conviction and in the adoption of the final civil court judgment against him, all of which occurred after ratification. Indeed, it was then that the applicant became formally obliged to pay the civil compensation awarded to the Mayor and liable to have his suspended criminal sentence converted into an enforceable fine (see Zana v. Turkey, judgment of 25 November 1997, Reports of Judgments and Decisions 1997 ‑ VII, §§ 41 and 42; see also paragraphs 2 8 and 2 9 above). The applicant's complaints cannot therefore be declared incompatible ratione temporis under Article 35 § 3 of the Convention. Accordingly, the Government's objections in this respect must be dismissed.
2. Exhaustion of domestic remedies
46. 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 file a Request for the Protection of Legality ( an “RPL”) on his behalf (see paragraphs 30 and 31 above). Secondly, concerning the civil proceedings, he had not filed an appeal on points of law (see paragraphs 34 and 35 above). Lastly, the applicant had failed to make use of the complaint procedure before the Court of Serbia and Montenegro (see paragraph 38 above).
47. The applicant maintained that all of the above-mentioned remedies were ineffective, within the meaning of the Court's established case-law under Article 35 § 1 of the Convention. In particular, an RPL could only have been filed by the competent public prosecutor, irrespective of any informal initiatives to this effect. The applicant thus had no direct access to this avenue of redress. Further, an appeal on points of law was also not available since the final civil court judgment ordered the applicant to pay less than CSD 300,000 in compensation. Finally, the applicant argued that a complaint with the Court of Serbia and Montenegro was “utterly ineffective” and, as such, clearly not necessary to exhaust.
48. The Government replied that the public prosecutor would not have had “total discretion” on whether to file an RPL on behalf of the applicant. On the contrary, he would have been obliged to do so if he thought that there had been a breach of the relevant domestic legislation or of the Convention, it being an integral part of the Serbian legal system. The Government also noted that the value of the Mayor's civil claim was CSD 500,000, which is why the applicant could and should have filed an appeal on points of law with the Supreme Court.
49. The applicant stated that it was not the value of the Mayor's initial claim but only the amount which the applicant was ordered to pay ( namely, CSD 120,000 ) which was decisive as regards the admissibility of the said appeal. He also conceded that an RPL could have provided him with effective redress, but reaffirmed that it was entirely up to the public prosecutor to decide whether to file it in the first place.
50. The Government pointed out that mere doubt as to the effectiveness of a given domestic remedy could not absolve the applicant from pursuing it under Article 35 § 1 of the Convention.
51. The Court recalls 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 of preventing or putting 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 was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003).
52. The Court notes that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 69).
53. Finally, the Court reiterates that an effective domestic remedy must form a part of the normal process of redress and cannot be of a discretionary character. The applicant must, therefore, be able to initiate the proceedings directly, without having to rely on the benevolence of a public official (see, mutatis mutandis, Malfatti v. the Slovak Republic, no. 38855/97, Commission decision of 1 July 1998, and V.S. v. the Slovak Republic, no. 30894/96, Commission decision of 22 October 1997; see, also, X v. Ireland, no. 9136/80, Commission decision of 10 July 1981, Decisions and Reports (DR). 26, p. 242).
54. The Court finds that it was only the public prosecutor who could have filed an RPL on behalf of the applicant and, moreover, that the former had full discretion in respect of whether to do so. While the applicant could have requested such action, he certainly had no right under law to make use of this remedy personally (see paragraph 30 above). An RPL was thus ineffective as understood by Article 35 § 1 of the Convention.
55. Further, notwithstanding the Government's submissions to the contrary, the text of Article 382 § 2 of the Civil Procedure Code 1977 was clear: an appeal on points of law was not allowed in pecuniary disputes where “the value of the part of the final judgment being contested” did “not exceed 300,000 ... dinars”. Since the final civil court judgment ordered the applicant to pay CSD 120,000, it is exactly this amount which would have been contested (see paragraph 34 above). The said appeal on points of law was therefore also not available to the applicant in the particular circumstances of the present case.
56. Lastly, concerning the Government's submission that the applicant should have filed a complaint with the Court of Serbia and Montenegro, the Court recalls that it has already held that this particular remedy was unavailable until 15 July 2005 and, further, that it remained ineffective until the break up of the State Union of Serbia and Montenegro (see Matijašević v. Serbia, cited above, §§ 34-37). The Court sees no reason to depart in the present case from this finding and concludes, therefore, that the applicant was not obliged to exhaust this avenue of redress.
57. 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 objections in this respect must be dismissed.
58. The Court considers that the applicant's complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and finds no other ground to declare them inadmissible. The complaints must therefore be declared admissible.
59. The Government endorsed, at length, the conclusions as well as the reasoning of the domestic courts and emphasised that the applicant's claims were statements of fact, rather than value judgments, which were not corroborated by relevant evidence.
60. The Government pointed out that the Mayor was never convicted or, indeed, even charged in spite of the fact that several criminal complaints had been filed against him, that the applicant's sentence was minimal, that the Mayor had the right to have his reputation protected, both as a private person and as a public figure, and, lastly, that the outcome of the subsequent civil case was based on the applicant's prior criminal conviction.
61. The Government thus concluded that the interference with the applicant's freedom of expression was “prescribed by law”, “necessary in a democratic society”, and undertaken for the protection of the “reputation or rights of others”.
62. The applicant submitted that the relevant criminal and civil judgments undoubtedly constituted an interference “by a public authority” with his right to freedom of expression, as guaranteed by Article 10 of the Convention. This interference, however, was not “in accordance with the law” because the domestic criminal courts had refused to treat all of the applicant's statements as an acceptable expression of his political opinion and the final civil court judgment had itself been based on his criminal conviction. In the alternative, however, the applicant argued that the said interference was disproportionate.
63. He thus noted that all of his statements were clearly political. First, he was and still is the President of the local branch of the Demo-Christian Party of Serbia, as well as a member of its Central Board. Secondly, the publication itself was an official newsletter of the local branch of the Democratic Party and its purpose was to serve and promote the activities of this party and of several other allied political parties in the upcoming presidential and municipal elections. Thirdly, despite the absence of the applicant's political function below the impugned article, it was specifically stated in other parts of the newsletter. Fourthly, it was “improbable” that only one of the applicant's statements made in the same article could be deemed as falling outside of the realm of political expression.
64. The applicant recalled that the Mayor was a public official and a political figure and that, as such, he had to accept criticism and display a greater degree of tolerance. The applicant's arguments to this effect, however, were disregarded by the domestic courts which ultimately found exactly the opposite.
65. The applicant maintained that his intent was not to defame the Mayor. The word “ sumanuto ” was not used as an adjective, to describe the Mayor's mental State, but rather as an adverb, to explain the manner in which the Mayor had been spending the money of the local taxpayers. In other words, the applicant did not claim that the Mayor was insane but that he had been spending public money insanely, in a particularly wasteful and irresponsible manner. The word “ sumanuto ” was thus an expression of the applicant's value judgment and, as such, not susceptible of proof.
66. The applicant stated that he had reasonable grounds for believing that his other statements were true. In particular, the Mayor was under an ongoing police investigation and there was no requirement under domestic law to prove the Mayor's alleged wrongdoing by means of a final criminal conviction.
67. The applicant submitted that the restriction on his freedom of expression was significant. He was convicted and fined within a criminal case and ordered to pay damages in a subsequent civil suit. Indeed, what really mattered was not that his fine was suspended, but rather the fact that he had been convicted at all. The applicant has therefore been stigmatised as a person with a criminal record and the suspended sentence itself could have been converted into an enforceable fine in accordance with the relevant criminal legislation.
68. The applicant argued that the domestic courts simply did not adduce sufficient reasons to justify their decisions. Indeed, their observations to the effect that politicians were entitled to more protection of their honour and dignity than ordinary people only added insult to injury.
69. Finally, the applicant stated that, even assuming that the interference in question was in accordance with the law and undertaken in pursuit of a legitimate aim, namely “the protection of the reputation or rights of others”, it was clearly not necessary in a democratic society.
70. The Government reaffirmed their previous arguments and added that the newsletter had covered various local issues, including those which could be described as political.
71. Even assuming, however, that the applicant's statements were political, this could not, in and of itself, excuse his insulting language, which had clearly exceeded the limits of free expression. Indeed, even if the applicant's translation of the word “ sumanuto ” is accepted, the Mayor was accused of particularly serious transgressions, amounting to crimes, without adequate evidence having been offered.
72. Finally, the Government noted that the absence of the applicant's political function in his signature below the said article raised issues in terms of his underlying motivation, that there were no reasonable grounds for the applicant to believe that his statements were true, and that, in any event, the final civil court judgment had yet to be enforced.
73. As the Court has often observed, the 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” that are favourably received or regarded as inoffensive, but also to those that offend, shock or disturb (see, among many other authorities, the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 22, § 42, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25, § 52).
74. The Court has also 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), and has emphasised that the limits of acceptable criticism are still wider where the target is a politician (see Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 59). While precious for all, freedom of expression is particularly important for political parties and their active members (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998 ‑ IV, § 46), as well as during election campaigns when opinions and information of all kinds should be permitted to circulate freely (see Bowman v. the United Kingdom, judgment of 19 February 1998, Reports 1998 ‑ I, § 42 ).
75. The Court recalls that account also has to be taken of whether the impugned expressions concerned one's private life or one's behaviour in an official capacity (see Dalban v. Romania [GC], no. 28114/95, § 50, ECHR 1999 ‑ VI ). Finally, the Court notes that the nature and severity of the penalty imposed, as well as the “relevance” and “sufficiency” of the national courts' reasoning, are matters of particular gravity in assessing the proportionality of the interference under Article 10 § 2 (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004, and Zana v. Turkey, cited above, § 51, respectively) and reiterates that Governments should always display restraint in resorting to criminal sanctions, particularly where there are other means of redress available (see Castells v. Spain, cited above, § 46).
76. The final criminal and civil judgments at issue undoubtedly constituted an interference with the applicant's right to freedom of expression. Despite the applicant's submissions to the contrary, this interference was clearly based on the domestic courts' interpretation of the sufficiently precise and foreseeable domestic legislation and was, as such, “prescribed by law” within the meaning of Article 10 § 2 (see paragraphs 27 and 32 above). Finally, the said judgments 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 they were “ necessary in a democratic society ”, or, in other words, whether the criminal conviction and the compensation awarded were proportionate to the legitimate aim which was being pursued.
77. In this respect, the Court notes that the applicant had clearly written the impugned article in the course of an ongoing election campaign and in his capacity as a politician, notwithstanding the Government's submission concerning the specifics of his signature (see paragraph 72 and paragraphs 18-22 above). The target of the applicant's criticism was the Mayor, himself a public figure, and the word “ sumanuto ” was obviously not used to describe the latter's mental state but rather to explain the manner in which he had allegedly been spending the money of the local taxpayers (see paragraphs 10 and 65 above). Although the applicant was unable to prove before the domestic courts that his other claims were true, even assuming that they were all statements of fact and, as such, susceptible of proof, he clearly had some reason to believe that the Mayor might have been involved in criminal activity and, also, that his tenure was unlawful (see paragraphs 23-26 above). In any event, although the applicant 's article contained some strong language, it was not a gratuitous personal attack and focused on issues of public interest rather than the Mayor 's private life, which transpired from the article's content, its overall tone as well as the context ( see paragraphs 7, 10, and 18-22 above ). Finally, the reasoning of the criminal and civil courts, in ruling against the applicant, was thus “relevant” when they held that the reputation of the Mayor had been affected. It was not, however, “sufficient” given the amount of compensation and costs awarded (equivalent to approximately eight average monthly salaries in Serbia at the relevant time) as well as the suspended fine which could, under certain circumstances, not only have been revoked but could also have been converted into an effective prison term (see paragraphs 9 and 15 above; see also paragraph 28 above, in particular Articles 54 and 39, respectively, quoted therein).
78. In view of the above and especially bearing in mind the seriousness of the criminal sanctions involved, as well as the domestic courts'dubious reasoning to the effect that the honour, reputation and dignity of the Mayor “had more significance than ... [the honour, reputation and dignity] ... of an ordinary citizen” (see paragraphs 39, 75 and 16 above, respectively), 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.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
79. In his initial application to the Court, the applicant also relied on Article 6 but, in so doing, made exactly the same complaint as the one already examined under Article 10. In fact, having failed to refer to any specific procedural issues, it would appear that the applicant considered that there had been an “automatic” breach of his right to a fair hearing based on the fact that he was convicted of criminal defamation and subsequently ordered to pay damages. Having regard to its finding in respect of Article 10, the Court declares this complaint admissible but considers that it does not require a separate examination on the merits (see, mutatis mutandis, Perna v. Italy [GC], no. 48898/99, §§ 33-34, ECHR 2003 ‑ V).
80. On 15 May 2006, for the first time, the applicant also complained about the impartiality of the presiding judge of the Municipal Court in the civil suit. The Court, however, notes that the final domestic decision in those proceedings had been rendered on 24 May 2005 and that the applicant's complaint was introduced more than 6 months later. Accordingly, it is out of time and, therefore, inadmissible under Article 35 §§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
81. 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.”
82. The applicant claimed non-pecuniary damage at the Court's discretion.
83. The Government contested that claim. They added, however, that should the Court find a violation of the Convention any financial compensation awarded should be consistent with the Court's jurisprudence in other similar cases.
84. The Court considers that the applicant must have suffered non-pecuniary harm as a result of the breach of his freedom of expression, which is why a finding of a violation alone would not constitute sufficient just satisfaction within the meaning of Article 41.
85. Having regard to the nature of the violation, the amounts awarded in comparable cases (see, mutatis mutandis, Dalban v. Romania [GC], cited above, § 59 ) and on the basis of equity, as required by Article 41, the Court awards the applicant EUR 3,000 under this head.
86. The applicant claimed EUR 230 for the costs incurred before the domestic criminal courts. He explained that this was merely 50% of what a local lawyer would have charged him, had he retained one.
87. The applicant, who had received legal aid from the Council of Europe in connection with the presentation of his case, claimed another EUR 1,200 for the costs and expenses incurred in the proceedings before this Court. In this respect he offered an itemised calculation.
88. The Government contested both claims. In particular, as regards the former, they noted that the applicant, having failed to retain a lawyer, could not have incurred any legal costs, while, as regards the latter, the expenses sought were excessive, particularly in view of the fact that the applicant could have sent his submissions to the Court by regular mail rather than by means of a costly overnight courier.
89. 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 were also reasonable as to their quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
90. Regard being had to all of the information in its possession, the above criteria and the parties' submissions, the Court rejects the applicant's claim for the costs allegedly incurred within the domestic criminal proceedings. However, it considers it reasonable, given the amount granted under the Council of Europe's legal aid scheme, to award him the additional sum of EUR 250 for the proceedings before this Court.
91. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Declares unanimously the complaints under Articles 10 and 6 of the Convention, concerning the applicant's freedom of expression, admissible and the remainder of the application inadmissible;