Communicated on 30 March 2016

THIRD SECTION

Application no. 53661/13 Stojan MARKOVIĆ against Serbia lodged on 28 May 2013

STATEMENT OF FACTS

The applicant, Mr Stojan Marković , is a Serbian national, who was born in 1959 and lives in Čačak . He is represented before the Court by Mr D. Lazarević , a lawyer practising in Kragujevac .

A. The circumstances of the case

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

The applicant is a journalist and editor-in-chief of a local weekly newspaper Čačanske novine .

On 17 February 2009 the applicant published an article entitled “Enfeebled Mandarin” (“ Zanemoćali mandarin”) which, insofar as relevant, reads as follows:

“Once upon a time a Mandarin lived in a certain town in a certain country.

... In troubled and unstable times he acquired power [by making] plenty of fine promises. He became rich, fat, got his hair done, spent all the tax money, bought new houses and flats, new cars, and opened a bank account in Cyprus and filled it.

... Nothing came of the monumental promises he had made to the people – no factories, no highway, no jobs, and no well-being. And then, again, elections were held in the Mandarin State.

... The Mandarin is no longer in power, just when he had got used to it. Just like we Serbs, so do the Mandarin people say that habit is second nature ( navika je teška odvika ). Now that he is in the enfeebled opposition in the Parliament, Mandarin must be cocky ( da se kurči ) in the hope that someone will notice him. He also has to be cocky at his pad, as young Mandarinettes are demanding, and age, fat, cholesterol, triglycerides and constant fear of those damnable genital warts ( kondiloma pustih ) have caught up with him. He has become enfeebled ( zanemoćalo se ).

However, a Mandarin ’ s reputation is at stake. When diet, the gym or the [sight of a] young bare-arse female body do not help the Mandarin, chemistry does. That twenty-first century wonder for macho Mandarins – Viagra. The breaking news on all the TV stations was that the Mandarin had been injured at his Mandarin pad. With injuries to his Mandarin head he was brought to a Mandarin hospital. Mandarin journalists gathered to find out and publish what had happened. The following morning some Mandarin newspapers announced that it had been a stroke, although there were no reasonable grounds for assuming so. From the hospital it leaked that the head injuries were due to nausea caused by high blood pressure, which had caused the Mandarin ’ s head to hit the wall and the floor. The injuries were quickly mended. The Mandarin ’ s head is thick. The doctors were prepared to release him, but the Mandarin did not feel like going home. He asked to stay until the morning. Given the way things were, EEG and blood tests were conducted and from the medical standpoint it became clear: Viagra was the cause of it all.

Approval was granted to keep the Mandarin hospitalised until the effects of the little pill ceased. There was no official press release, except that the little Mandarins from his political party announced that the reason was exhaustion from all his concern for the Mandarin people and State.

Lest we forget, any resemblance of this true story of the Mandarin State with events in Serbia is coincidental. ”

On 24 February 2009 the applicant published an article entitled “The Hour of Reckoning is Approaching – D., J., Š., the next one is ... ” which, insofar as relevant, reads as follows:

“ After the recent arrests and announcements of indictments one gets the impression that all the mobster organisations in Serbia have been unmasked and, in part, arrested. The only thing that we can expect now is to hear on breaking TV news that the church mafia has been unmasked, which would put an end to the question of how many different sorts of mobster organisations in Serbia exist, and then to ask ourselves when the big bosses will be arrested rather than just the small fish.

The logical question the public asks these days is whether and to what extent the leader of a particular political party, in this case the NS, is involved in the dirty business of which his closest associates are accused.

Although he is prone to claiming that he never met these people, many facts – including our photo – bear witness to the contrary. In any event, the boss is not innocent in this story because if he was not aware of what his associates were doing then he is an ignorant boss, and if he did know, then ...

Leave it to justice, which is slow but sure, to do its job. For now, the party officials of NS ... have been caught in what the Master of Arts calls ‘ petty theft ’ ( kraduckanje ). The first one was caught and arrested, the second one was indicted, and the third one is under investigation. The next one is...”

The article was illustrated by a photograph of V.I. and B.J. The photograph was also accompanied by the following caption:

“At the end of the tunnel: V.I. and B.J.”

1. Civil proceedings against the applicant

Shortly after the publication of the said articles V.I. brought a civil action for non-pecuniary damages against the applicant, claiming that the said articles had harmed his honour and reputation.

On 9 March 2010 the Čačak High Court ( Viši sud u Čačku ) gave judgment, ordering the applicant to pay V.I. 180,000 Serbian dinars (RSD) in compensation for non-pecuniary damage, together with statutory default interest running from the adoption of the judgment until payment, and RSD 58,300 in costs.

On 21 April 2010 the Kragujevac Appeals Court ( Apelacioni sud u Kragujevcu ) reduced the costs awarded to the V.I. to RSD 19,854 and upheld the remainder of the first-instance judgment.

Regarding the article “Enfeebled Mandarin” the court found:

“... the defendant published false information about the plaintiff. Among other things [he published] false information about the reasons for the plaintiff being hospitalised. The court found that the plaintiff had been hospitalised for injury caused by high blood pressure and intensive emotional stress ... and not because he had used Viagra, as it was falsely reported in the disputed article, in which the name of the plaintiff is not mentioned but is clear from the description of events ...”

Regarding the article “The Hour of Reckoning is Approaching ” the court found:

“... the defendant pointed to the plaintiff as a potential perpetrator of a crime, even though no final court judgment has found the plaintiff guilty [of anything].”

The court went on to find:

“The press cannot overstep certain boundaries, invoking freedom of expression, especially when the reputation and rights of others are at stake, and protection awarded to journalists by Article 10 of the European Convention of Human Rights in matters of general interest is conditional upon their acting in good faith in order to provide accurate and reliable information, in accordance with journalistic ethics.”

On 25 May 2010 the applicant lodged a constitutional appeal with the Constitutional Court of Serbia. Relying on Article 32 (right to a fair trial) and Article 46 (freedom of expression) of the Constitution he complained that the said judgment had violated his right to freedom of expression.

On 5 March 2013 the Constitutional Court rejected the applicant ’ s constitutional appeal.

2. Criminal proceedings against the applicant

On 23 February 2011 in criminal proceedings initiated by V.I. as a private prosecutor, the Čačak Court of First Instance ( Osnovni sud u Čačku ) convicted the applicant of criminal defamation ( kleveta ) and ordered him to pay a fine .

On 27 May 2011 the Kragujevac Appeals Court quashed the first-instance judgment and remitted the matter to the Court of First Instance for re ‑ examination .

On 14 May 2012 the Čačak Court of First Instance again convicted the applicant of criminal defamation and ordered him to pay a fine.

On 3 December 2012 the Kragujevac Appeals Court overturned the first-instance judgment and acquitted the applicant.

B. Relevant domestic law

1. The Obligations Act ( Zakon o obligacionim odnosima ; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93)

Under Article 200 of the Act 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.

2. The Public Information Act ( Zakon o javnom informisanju ; published in the Official Gazette of the Republic of Serbia nos. 83/2014 and 58/2015 )

Under Articles 79 and 81 of the Act anyone can seek pecuniary and non-pecuniary satisfaction from a media company if that company has published false information about them. The journalist who published that false information is responsible if it can be proved that the damage in question resulted from his culpability.

COMPLAINT

The applicant complains under Articles 6 and 10 of the Convention of the violation of his right to freedom of expression.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?