SECOND SECTION

DECISION

Applications nos . 15573/07 and 38709/10 Đorđe ĆAPIN against Montenegro

The European Court of Human Rights ( Second Section ), sitting on 4 November 2014 as a Chamber composed of:

Guido Raimondi , President, Işıl Karakaş , András Sajó , Nebojša Vučinić , Egidijus Kūris , Robert Spano , Jon Fridrik Kjølbro , judges, and Abel Campos , Deputy S ection Registrar ,

Having regard to the above applications lodged on 31 March 2007 and 26 April 2010 respectively,

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 in both c ase s , Mr Đorđe Ćapin , is a Montenegrin national, who was born in 1963 and lives in Herceg Novi . At the relevant time he was the Director of the Museum and Art Gallery , a public institution. He was also a member of the Executive Committee of the Serb People ’ s Party ( Srpska narodna stranka ; hereinafter “SNS” [1] ). He was represented before the Court by Mr M. Ivanović , a lawyer practising in Igalo .

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

3. On 24 June 2013 the complaints concerning the applicant ’ s freedom of expression were communicated to the Government and the remainder of the applications was declared inadmissible.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

1 . The first set of criminal proceedings (application no. 15573/07)

5. On 22 January 2004 a “Public letter to the artists and writers of Herceg Novi” ( O tvoreno pismo hercegnovskim umjetnicima i piscima ), signed by M.M., on his own behalf and on behalf of four other artists, was published in some of the printed and electronic media in Montenegro. The letter stated, inter alia , that the applicant, as the Director of the Museum and Art Gallery, had refused an exhibition of an Istria painter in May 2003, as well as, soon afterwards, a programme for the presentation of “The Days of Istria in Herceg Novi”. He had allegedly also attempted to censor an artistic selection for another exhibition, which had made several artists withdraw. In conclusion, it was requested that the art institutions in Herceg Novi be run again “by artists and writers of integrity and reputation and not by semi-skilled culture-agitators and party activists”.

6 . On 6 December 2005 the applicant, apparently as an associate journalist ( novinar saradnik ) of an opposition weekly magazine “ Pokret ”, which existed at the time, wrote an article entitled “A special war against Herceg Novi”. The article stated, inter alia , that “the idea about the ‘ prohibition ’ of the exhibition was [...] elaborated by a group of the so-called ‘ prominent Montenegrin intellectuals ’ [including M.M.]. [...] Of course, few cared what the ‘ prominent Montenegrin intellectuals ’ would say, as it was well known that they had to sign whatever nastiness ( gadost ) they were given to sign, as otherwise they would be neither ‘ prominent ’ nor ‘ Montenegrin ’ , and they were certainly not intellectuals”.

7 . On 14 December 2005 M.M. filed a private criminal action ( privatna krivična tužba ) against the applicant for insult ( uvreda ), claiming that the above-cited statement publicly “belittled him and underestimated his personal and professional values”.

8 . On 29 March 2006 Z.D., as a single judge of the Court of First Instance ( Osnovni sud ) in Herceg Novi, found the applicant guilty of insult, fined him 1,500 euros (“EUR”), ordered him to pay EUR 50 for the court fees ( sudski paušal ) and decided that the judgment at issue would be published in “ Pokret ”. The judgment further specified that if the fine was not paid within three months as of the day when the judgment became final, it would be converted into a prison term, EUR 40 being equal to a day in prison.

9 . The court rejected the applicant ’ s defence that he could not be held responsible for something he had said as a journalist and without any intention to belittle, and that his statement was merely an opinion provoked by the untrue allegations relating to the refusal of the said exhibition contained in the public letter. The court also considered that the applicant, being also a journalist, must have known that the freedom of expression was restricted by the need to protect the honour and the reputation of others, and should have acted accordingly. It was further held that the public letter was not insulting for the applicant, as it was written in the context of a serious professional criticism of the applicant ’ s work as the Museum and Art Gallery ’ s Director, with the aim of protecting interests of greater public importance. The court concluded that the expressions used by the applicant belittled and underestimated M.M. ’ s personal and professional integrity. In deciding on the amount of the fine, the court took into consideration, inter alia , that the applicant ’ s insulting statement was given “as a reaction to an earlier insult by the private prosecutor and the others”.

10 . On 22 June 2006 the High Court ( Viši sud ) in Podgorica upheld the decision that the applicant was guilty of insult and at the same time reduced the fine to EUR 600. It was reaffirmed that the fine, if not paid, would be converted into a prison sentence.

11 . On an unspecified date thereafter the fine was allegedly paid by the SNS, following a decision of the SNS President to that effect.

12 . On 30 December 2006 the Court of First Instance in Herceg Novi issued a decision converting the fine into 15 days of imprisonment as it had apparently not been paid within the specified time-limit. The applicant did not file an appeal against this decision. It would also appear that he has not served a prison sentence.

13 . The applicant maintained in his submissions to the Court that a number of the court documents had not been served on him properly and in a timely manner. The Government, for their part, submitted a copy of the delivery slips signed by the applicant and his representative in the domestic proceedings confirming that the High Court judgment was served on them on 11 July 2006 and 12 July 2006 respectively.

2 . The second set of criminal proceedings (application no. 38709/10)

14 . On 31 March 2006 one of the Montenegrin daily newspapers published an article entitled “ Ćapin : SDP [2] wants to move me out of Montenegro ” ( “ Ćapin : SDP hoće da me iseli iz Crne Gore” ). The article contained the SNS ’ s comments on the first-instance judgment rendered by Z.D. in the first set of criminal proceedings against the applicant. It continued with the applicant ’ s comment, part of which read as follows: “The Social Democratic Party of Montenegro filed three complaints ( prijave ) with the court in Herceg Novi against me as an associate journalist of “ Pokret ”. [The complaints] have been processed as a priority ( preko reda ) even though the [court] has a backlog of 8,000 unresolved cases. This time, due to loyalty to the party ( po partijskoj dužnosti ) , everything had to be done as a priority. A hearing was scheduled in a particularly short period. One such trial was held two days ago and it resembled the proceedings before a court martial ( prijeki sud ) rather than regular proceedings. I was fined EUR 1,500 for a publicly expressed opinion which I made as an associate journalist.”

15 . On 11 April 2006 Z.D. filed a private criminal action against the applicant, claiming that the following words, in particular, amounted to defamation: “this time, due to loyalty to the party, everything had to be done as a priority. A hearing was scheduled in a particularly short period. One such trial was held two days ago and it resembled the proceedings before a court martial rather than regular proceedings ”.

16 . On 19 August 2009, at the hearing held after a remittal, the applicant stated, inter alia , that as a politician, journalist and a legal representative of the Museum and Art Gallery he had the right to express his personal, political and professional opinions as well as to criticise negative phenomena in society. He stated that he had never mentioned Z.D., although, as a public official, she had a duty to tolerate criticism even when it was not justified. He maintained that the trial against him had been treated as a priority as the judges had first to deal with the older cases. In this regard he referred to a public statement of the President of the Supreme Court that each judge at the court in Herceg Novi had a backlog of 400 cases and that the older cases were priority. The applicant confirmed that several days after the delivery of the judgment in the first set of criminal proceedings he had indeed commented publicly on the work of the court and its dealing with cases which were not priority.

17 . On 20 August 2009 the Court of First Instance in Kotor found the applicant guilty of defamation and fined him EUR 600, which fine could be converted into a prison sentence if it was not paid within three months as of the day when the judgment became final. He was also ordered to pay EUR 50 for the court fees. The court considered that even though the applicant had not mentioned Z.D. personally, it was clear from the text and its context which judge and judgment he had been referring to. The court held that the statement at issue was untrue and that, in particular, the words “due to loyalty to the party”, “in a particularly short period” and “court martial” could harm Z.D. ’ s personal and professional honour and reputation.

18 . On 17 September 2009 the applicant appealed against this decision. He submitted, in particular, that the court had not taken into consideration either the Convention or the Court ’ s case-law and that both the private prosecutor and himself , as public officials, had a duty to tolerate a higher level of criticism.

19 . On 22 February 2010 the High Court in Podgorica upheld the first-instance judgment, in substance endorsing the reasons given by the Court of First Instance. The court rejected the applicant ’ s argument that he had criticised the work of the court in general and not Z.D.

20 . On 18 July 2013 the Constitutional Court upheld the applicant ’ s constitutional appeal filed on 5 May 2010 and found a violation of Article 10 of the Convention. It quashed the High Court judgment and ordered a re-trial. In doing so, the Constitutional Court held, in particular, that the interference with the applicant ’ s freedom of expression was not necessary in a democratic society and that the reasoning of the domestic courts was not relevant and sufficient to justify it. The disputed expressions used by the applicant related to the behaviour of Z.D. in her official capacity and not to her private life. In addition, the nature and the level of the fine, which under certain conditions could be replaced by imprisonment, were of particular importance in assessing the proportionality of the interference. The court also ordered that its decision be published in the Official Gazette.

21 . On 16 October 2013 the High Court overturned the judgment of the Court of First Instance of 20 August 2009 and acquitted the applicant given that the defamation had been decriminalised in the meantime (see paragraph 30 below).

22 . The applicant paid the court fees. It would appear that he has never paid the above fine.

3 . Other relevant information

23 . On 26 May 2007 the President of the Supreme Court stated that each judge of the Court of First Instance in Herceg Novi was in charge of 300-400 cases, some of which were several years old, and that the older cases ( predmeti iz prethodnih godina ) should be given priority.

24 . In 2009 the applicant ’ s salary was 733 EUR per month.

B. Relevant domestic law

1 Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07)

25. Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

26 . The Constitution entered into force on 22 October 2007.

2 . Montenegro Constitutional Act ( Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 64/08)

27 . Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

28 . Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.

29 . This Act entered into force in November 2008.

3 . The Criminal Code ( Krivični zakonik , published in the Official Gazette of the Republic of Montenegro nos. 70/03, 13/04, and 47/06, and in the OGM nos. 40/08, 25/10, 73/10, 32/11 and 64/11)

30. Article s 195 and 196 provided that insult and defamation, respectively, were criminal offence s and specified sanctions therefor. These A rticles were repealed on 9 July 2011 by virtue of the amendments to the Criminal Code.

31 . Article 39 § 6 provided that if the fine was not paid within the specified time, it would be replaced by a prison sentence, EUR 40 corresponding to a day in prison. This provision was changed by virtue of another set of amendments to the Criminal Code, which entered into force on 1 August 2006, and which provided that EUR 25 corresponded to a day in prison. At the same time a new provision was introduced to the effect that the unpaid fine could also be replaced by work in the public interest ( rad u javnom interesu ) instead of a prison sentence, EUR 25 corresponding to eight hours of such work.

4 . Amnesty of Persons Convicted for Insult and Defamation Act ( Zakon o amnestiji lica osuđenih za krivična djela uvreda i kleveta ; published in the OGM no. 31/12)

32 . Section 1 provides, inter alia , that the sanctions for insult and defamation shall not be enforced, the convictions shall be expunged and their legal consequences shall cease.

33 . Section 2 provides that a decision to this effect shall be rendered of its own motion by a court which is in charge of the enforcement of the sanction or upon the request of a convicted person.

34 . This Act entered into force on 23 June 2012.

5. The Obligations Act 2008 ( Zakon o obligacionim odnosima ; published in the OGM nos. 47/08 and 04/11)

35. Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia , that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights ( prava ličnosti ) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.

36. Section 166 provides, inter alia , that a legal entity ( pravno lice ), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or related thereto.

37. This Act entered into force on 15 August 2008.

COMPLAINTS

38. The applicant complained under Article 10 of the Convention about a breach of his freedom of expression stemming from the two criminal court judgments against him.

THE LAW

A . J oinder of the applications

39. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

B . A lleged violation of Article 10 of the Convention

1. The first set of criminal proceedings (application no. 15573/07)

40 . The Government submitted that the application was lodged out of time, given that the High Court judgment of 22 June 2006 had been served on the applicant and his representative on 11 July 2006 and 12 July 2006 respectively . The y submitted a copy of the relevant delivery slips (see paragraph 13 in fine above).

41. They also maintained that even assuming that the applicant ’ s complaint related to the decision of the Court of First Instance of 30 December 2006, converting the fine into a prison sentence, the applicant had failed to appeal against it and thus exhaust effective domestic remedies .

42. The applicant submitted that his complaint actually related to the decision of the Court of First Instance of 30 December 2006 and that the application was therefore lodged within the six- month period. He also submitted that it was not possible to appeal against it as the fine had already been paid .

43. The Court recalls that the purpose of the six-month rule is to promote security of the law, ensure that cases raising issues under the Convention are examined within a reasonable time, and protect the authorities and other persons concerned from being in a situation of uncertainty for a long period of time (see P.M. v. the United Kingdom ( dec. ), no. 6638/03, 24 August 2004). This rule also provides the prospective applicant with sufficient time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see O ’ Loughlin and Others v. the United Kingdom ( dec. ), no. 23274/04, 25 August 2005).

44. The six-month period starts running from the date on which the applicant and/or his or her representative has sufficient knowledge of the final domestic decision (see Koç and Tosun v. Turkey ( dec. ), no. 23852/04, 13 November 2008). It is for the State which relies on the failure to comply with the six-month time-limit to establish the date when the applicant became aware of the final domestic decision (see Şahmo v. Turkey ( dec. ), no. 37415/97, 1 April 2003).

45. Turning to the present case, the Court firstly notes that the applicant ’ s complaint in respect of the decision rendered by the Court of First Instance on 30 December 2006 was already declared inadmissible (see paragraph 3 above) by the President of the Section, sitting in a single-judge formation, on 24 June 2013, of which the applicant was duly informed in the Court ’ s letter of 1 July 2013.

46. The Court further notes that the last decision in the first set of criminal proceedings was rendered by the High Court on 22 June 2006, and served on the applicant on 11 July 2006. Given that the application was lodged on 31 March 2007 the Court concludes that the applicant ’ s complaint in this regard w as introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The second set of criminal proceedings (application no. 38709/10)

47. The Government submitted that the applicant no longer had victim status given that the Constitutional Court had found a violation of Article 10, quashed the relevant judgment of the High Court and ordered a re-trial in which the applicant had been acquitted. They referred in this regard to Scordino v. Italy (no. 1) [GC] ( no. 36813/97, ECHR 2006 ‑ V ). In addition, the Amnesty of Persons Convicted for Insult and Defamation Act also provided that the sanctions for insult and defamation would not be enforced, but that the convictions would be expunged and their legal consequences would cease (see paragraph 3 2 above).

48. The applicant submitted that he retained victim status. In particular, a constitutional appeal was not an effective domestic remedy as it had taken the Constitutional Court more than three years to rule upon it, and it had done so only after the case had been communicated t o the respondent State.

49 . The Court recalls that an applicant ’ s status as a “victim” depends on whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006 ‑ V; and Cataldo v. Italy ( dec. ), no. 45656/99, 3 June 2004).

50 . T urning to the present case, t he Court notes that the Constitutional Court found that the applicant ’ s freedom of expression under Article 10 of the Convention had been violated – thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court ’ s case law.

51 . Furthermore, the Constitutional Court quashed the High Court judgment of 22 February 2010 , ordered a re-trial and ordered that its decision be published in the Official Gazette. Following this, the High Court quashed the applicant ’ s conviction on which his complaint under Article 10 before this Court was based (see paragraphs 20 and 21 above ) and acquitted the applicant. This in itself, in the present case, could be considered an appropriate and sufficient redress.

52. In any event, the applicant could, in addition, have sought compensation and requested other forms of redress capable of affording adequate non-pecuniary satisfaction , pursuant to the relevant provisions of the Obligations Act (see paragraphs 35 - 36 above ), which he failed to do. Furthermore, he has failed to justify such an omission (see, mutatis mutandis , Predi ć -Joksi ć v. Serbia ( dec. ), no. 19424/07, §§ 25-27, 20 March 2012).

53. In such circumstances, the Court considers that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the violation of his right to freedom of expression and that his complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see, mutatis mutandis , Predi ć -Joksi ć v. Serbia ( dec. ), cited above, § 28 ).

For these reasons, the Court

Decides , unanimously , to join the applications;

Declares , unanimously , the application no. 15573/07 inadmissible;

Declares , by a majority , the application no. 38709/10 inadmissible.

Abel Campos Guido Raimondi Deputy Registrar President

[1] The SNS was an opposition party at the State level at the time.

[2] The Social Democratic Party (SDP) was a partner in the ruling coalition Government at the State level.