SECOND SECTION

DECISION

Application no . 22668/08 Jovan PEJOVIĆ against Montenegro

The European Court of Human Rights ( Second Section ), sitting on 29 September 2015 as a Chamber composed of:

Işıl Karakaş , President, Nebojša Vučinić , Helen Keller , Ksenija Turković , Egidijus Kūris , Robert Spano , Stéphanie Mourou-Vikström , judges, and Stanley Naismith , Section Registrar

Having regard to the above application lodged on 15 April 2008 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Jovan Pejović , is a Montenegrin national, who was born in 1956 and lives in Herceg Novi .

2. The Montenegrin Government (“the Government”) were represented by their Agent at the time , Mr Z. Pa ž in .

A. The circumstances of the case

3. The facts of the case, as submitted by the partie s, may be summarised as follows.

4. On 1 July 2004 a Montenegrin daily newspaper, the DAN , published an article entitled “The president of the court enabled his brother ’ s unjust enrichment”. The article, in substance, alleged that there were numerous failures ( propusti ) in the Court of First Instance ( Osnovni sud ) in Herceg -Novi, most of which were attributable to the president of that court, V.Š., against whom a number of criminal complaints had been filed. One such complaint, filed by the applicant, as reported by the article, implied that V.Š. had abused his office. He had allegedly kept hidden an eviction claim filed by a private company X against his brother, D.Š., and his brother ’ s company, thus enabling D.Š. unlawfully to make a profit of between 15,000 and 20,000 euros (EUR) on a monthly basis by using somebody else ’ s property.

5. On 25 August 2004 and 29 July 2004 V.Š. and D.Š. each lodged a private criminal action against the applicant for defamation ( kleveta ), claiming that the latter ’ s statements were untrue and, therefore, harmful to their honour and reputation.

6. On 19 October 2004 the Supreme Court ( Vrhovni sud ) designated the Court of First Instance in Kotor as the competent court to process the actions.

7. On 7 November 2007, after a remittal, the applicant was found guilty of defamation ( kleveta u produženom trajanju ), fined 2,400 euros ( EUR), and ordered to pay EUR 100 for the court fees ( sudski paušal ). The judgment specified that if the fine was not paid within 60 days from the day when the judgment became final, it would be converted into a 60-day prison term.

8. In the course of the proceedings t he applicant confirmed that he had lodged a criminal complaint with the police and made a similar submission to the Supreme Court, but claimed that he had never given a statement to the DAN relating to the allegations contained in the article. His intention was not to insult D.Å ., but to draw the attention to the irregularities in the work of V.Å .

9. The journalist who wrote the article maintained that his source of information was from the Ministry of Interior, whose identity he did not want to reveal, and that the article had been written on the basis of the applicant ’ s criminal complaint only.

10. V.Š., for his part, considered that the newspaper ’ s source of information was the applicant. It was not true that he had kept the eviction case-file hidden and the only reason why the case had not been concluded earlier was due to an enormous number of cases pending before the said court, which was widely known. In any event, his brother was not a respondent party in these proceedings.

11. D.Å . submitted that the applicant had made untrue statements in the article published in the DAN about his unlawful use of business premises owned by X.

12. The court established that the applicant ’ s submission made to a number of judicial bodies alleged, inter alia , that V.Š. had acted contrary to the Courts Act for two years by not allocating the said eviction case to another judge. The remainder of the submission contained allegations relating to V.Š. only. It was further established that the newspaper article contained, inter alia , the allegations from the applicant ’ s criminal complaint implying that V.Š. had abused his office by enabling his brother ’ s unjust enrichment. The court took into account that the applicant had failed to prove the veracity of his claims as he did not have a final court judgment convicting V.Š. in this regard. The journalist ’ s statement was held to be illogical and made with the aim of helping the applicant.

13. In view of this, the court held that the applicant had given untrue statements about the private prosecutors through the media or in a similar way and thus committed the said criminal offence. In particular, he had made a submission to the High Court and other bodies, as well as an untrue statement to the DAN about V.Š. and his involvement in the said eviction proceedings, which “undoubtedly harmed the honour and reputation of the private prosecutors”. The court, however, did not accept that the statements could have led to more severe consequences.

14. Without verifying the applicant ’ s financial status ( imovinsko stanje ), the court considered that the imposed fine was adequate and that the applicant would be able to pay it within the prescribed time-limit as “he undoubtedly ran a private legal practice and obviously had clients given that he had asked for adjournment of some of the hearings in order to attend the proceedings in his clients ’ cases”.

15. On an unspecified date thereafter the applicant appealed. He maintained, in particular, that he had not given the said statement to the newspaper, which was confirmed by the author of the article himself. It was unacceptable that somebody be found guilty of defamation for submissions made in a criminal complaint filed against a public official. In addition, V.Å . himself had admitted that he had not allocated the eviction case file to another judge for two years, and that he, the applicant, was not allowed to prove the veracity of his criminal complaint, namely that by doing so V.Å . had enabled his brother ’ s significant unjust enrichment.

16. He further submitted that he had requested the exclusion of the first-instance court single judge dealing with the case, but that she had rendered the judgment nevertheless. She had also drawn conclusions about his financial status without verifying it.

17. He finally proposed that the judgment be quashed and that the previous first-instance judge be excluded in the re-trial proceedings.

18. On 10 March 2008 the High Court upheld the first-instance judgment in substance, endorsing its reasoning, and held that none of the other allegations made in the appeal could lead it to decide otherwise.

19. On an unspecified date thereafter the applicant paid the fine.

20. The average monthly income in Montenegro when the relevant domestic decisions were rendered was EUR 338 in 200 7 and EUR 416 in 2008. Financial brokers had the highest incomes, these being on average EUR 770 in 200 7 and EUR 854 in 2008. [1]

21. On 3 October 2013 the application was communicated to the respondent Government. In their observations dated 17 January 2014 the Government informed the Court that on 27 April 2009 the Supreme Court, following a request for the protection of legality lodged by the Supreme State Prosecution, had quashed the judgment of the High Court rendered on 10 March 2008 and had ordered a re-trial. The impugned judgment had been quashed on the ground that the High Court had ruled only on the appeal submitted by the applicant ’ s representative, but had failed to rule on the appeal submitted by the applicant himself. On 7 September 2009, in the re-trial, the High Court had overturned t he first instance judgment of 7 November 2007 and dismissed the criminal actions lodged against the applicant ( odbija se optu ž ba ) as the criminal prosecution had become time-barred in the meantime.

22. In his observations of 27 February 2014 the applicant confirmed the above information.

B. Relevant domestic law

23. Section 61 of the Enforcement Act ( Zakon o izvr Å¡ nom postupku ; published in the Official Gazette of the Republic of Montenegro no. 23/04) provided that once the enforcement had taken place, the debtor could request the court to order a counter-enforcement and order the repayment of what he had paid, if the document on the basis of which the enforcement had been undertaken was quashed, overturned, annulled or ceased to be in force. This Act was repealed by the Enforcement Act 2011 on 27 September 2011.

COMPLAINTS

24. The applicant complained under Article 10 of the Convention about a breach of his right to freedom of expression stemming from a final criminal court judgment finding him guilty of defamation. He also complained under Article 6 of the Convention about the impartiality of the first-instance court as one of the private prosecutors used to work there and was a friend and a colleague of the judge who had rendered the first-instance judgment on 7 November 2007.

THE LAW

25. The applicant complained under Articles 6 and 10 of the Convention, which provisions read as follows:

Article 6 § 1 of the Convention

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

Article 10

“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. The parties ’ submissions

26. The Government maintained that the applicant was no longer a victim given that the impugned judgment had been quashed in a re-trial, and the criminal actions against him had been dismissed. The applicant was also removed from the Criminal Sanctions Registry ( kaznena evidencija ). The Government submitted all the relevant documents in this regard and averred that it was the applicant who ought to have informed the Court of these developments.

27. The applicant confirmed that the impugned judgment had been quashed, but maintained that it was unacceptable that he had been found guilty in the first place. He submitted that he had paid the fine and sought 50,000 euros (EUR) in respect of non-pecuniary damage for the alleged violations complained of.

B. The Court ’ s assessment

29. T he Court recalls that according to Rule 47 § 6 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. It further recalls that incomplete and therefore misleading information may also amount to abuse of the right of peti tion, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross v. Switzerland [GC] , no. 67810/10 , § 28, ECHR 2014; and Pre descu v. Romania , no. 21447/03, §§ 25-26, 2 December 2008 ).

30. Turning to the present case, the Court notes that in his application lodged on 15 April 2008 , the applicant complained about a violation of his rights under Articles 6 and 10 of the Convention stemming from the domestic courts ’ judgments finding him guilty of defamation, issued on 7 November 2007 and 10 March 2008 r espectively. On 3 October 2013 the Court communicated the applicant ’ s complaint s to the respondent Government. In their observations submitted on 17 January 2014 the Government informed the Court that on 27 April 2009, upon the request of the Supreme State Prosecutor, the Supreme Court had quashed the impugned judgment rendered against the applicant and ordered a re-trial, in which the criminal actions against the applicant had been dismissed (see paragraph 21 above). The applicant omitted to inform the Court about th es e developments. Only in his letter of 27 February 2014 sent in response to the Government ’ s observations did the applicant confirm this information (see paragraph 2 2 above), without providing any explanation whatsoever for his failure to disclose this information to the Court earlier.

31. The Court further notes that it was the respondent State which set matters right, as it was upon the request of the Supreme State Prosecutor that the applicant ’ s conviction was quashed (see paragraph 21 above), by which the alleged interference with the applicant ’ s freedom of expression and the alleged impartiality of the first-instance court ceased to exist. As regards the fine paid by the applicant the Court notes that he has not claimed the repayment thereof before the Court and observes in this regard that he could have claimed it domestically pursuant to the relevant provision of the Enforcement Act (see paragraph 23 above).

32. In any event, in the light of the new developments brought to its attention, and g iven the importance of the information in issue for the proper determination of the present case, the Court considers that the applicant ’ s conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention (see Margaryan v. Armenia ( dec. ), no. 72733/10, § 34, 4 June 2013; see also, mutatis mutandis , Gross v. Switzerland [GC] , cited above, § 33).

For these reasons, the Court, unanimously,

Dec lares the application inadmissible.

Done in English and notified in writing on 22 October 2015 .

Stanley Naismith Işıl Karakaş Registrar President

[1] The data are taken from the website of the Statis tics Agency of Montenegro on 16 September 2013: http://www.monstat.org/cg/page.php?id=191&pageid=24 .