Communicated on 14 December 2015

THIRD SECTION

Application no. 5158/12 Janko JAKOVLJEVIĆ against Serbia lodged on 13 September 2011

STATEMENT OF FACTS

1. The applicant, Mr Janko Jakovljević , is a Serbian national, who was born in 1953 and lives in Šabac . He is represented before the Court by Mr P. Savić , a lawyer practising in Belgrade.

A. The circumstances of the case

1. Background of the case

2. The applicant ’ s son, D.J., who was a private in the elite Guard Unit of the Army of Serbia and Montenegro ( Gardijska jedinica Vojske Srbije i Crne Gore ), and another private, D.M., were killed on 5 October 2004 while performing guard duties at the Top č ider Military Barracks in Belgrade. The initial investigation, performed by the military judicial authorities and supervised by a military investigating judge, V.T., concluded that Private D.M. had killed Private D.J. and then committed suicide. On account of the many inconsistencies in the findings of the military investigation and the public controversy that the case caused, the High Defence Council of Serbia and Montenegro ( Visoki savet odbrane Srbije i Crne Gore ) established a State Commission ( Državna komisija ) to investigate the case. As the work of the State Commission progressed, the military investigation released new findings to the effect that Private D.J. had killed Private D.M, and that Private D.J. had then committed suicide. On 14 December 2004, however, the State Commission ruled out the possibility that either of the two soldiers had committed suicide or that they had killed each other in an exchange of fire, concluding therefore that the soldiers must have been killed by a third person. The State Commission recommended a full criminal investigation by civilian judicial institutions. The findings of the State Commission were later confirmed during the third investigation, conducted by the Serbian civilian judicial authorities. That investigation is ongoing and the perpetrators are still unknown.

2. Statements by the military investigating judge

3. Shortly after the State Commission had declared the military investigation to be inadequate and recommended the reopening of the investigation before civilian judicial institutions, the military investigating judge, V.T., who was in charge of the military case, made a number of appearances in the Serbian media defending the findings of the military investigation. On 15 December 2004, he presented the findings of the investigation - that the applicant ’ s son had killed the other soldier and then committed suicide - on a popular political television show. He also stated that “one of the soldiers was a ‘ second-grade soldier ’ ” of “average physical and mental abilities,” which meant that the soldier in question had not fulfilled the criteria to be a member of the elite unit, in which only “first ‑ grade soldiers” could serve. He did not specify which of the two soldiers he was referring to.

4. On 17 December 2004, one of the largest Serbian daily newspapers published an interview with V.T. in which he defended the findings of the military investigation and criticised the work of the State C ommission.

Among other things, he stated:

“ There are witness statements, which the psychologist did not take into account, according to which the soldier [D.J.] had a psychological crisis which manifested itself in his failure to communicate with others. He stared at one spot after getting up; the day before the incident he could not assemble his mobile phone and put the SIM card in it because his hands were trembling. When he was asked whether he was sick, he simply replied ‘ I am just a bit tired ’ . I am saying all of this for the sake of the truth. I know that I am hurting the family of the deceased soldier. However, we all have families and honour , and we have all been hurt by the things surrounding this case. The truth must be known.”

3. Criminal proceedings related to the statements by the military investigating judge

5. The publication of the above statements did not lead to an official criminal investigation of V.T. by the appropriate authorities for a breach of the confidentiality of the proceedings. On 24 January 2005, however, the applicant initiated criminal proceedings by means of a private prosecution of V.T. for defamation, in relation to the statements.

6. On 5 November 2007 the First Municipal Court of Belgrade changed the legal classification of the charges and found V.T. guilty of releasing personal and family information and gave him an official judicial warning. The court found that it was beyond reasonable doubt that V.T. had made the statements which were the subject of the prosecution. It further found that V.T. had released actual facts from the criminal case file. It established that V.T. could not have made the statements in his official capacity as a military investigating judge, considering that it was not part of his judicial function to release personal information about people involved in a case before him to the media. It further found that the interview with V.T. published on 17 December 2004 in the newspapers had contained statements which constituted the criminal offence of releasing personal and family information. However, the court held that the statements made by V.T. during the television show broadcast on 15 December 2004 could not be classified as a criminal offence. The court ’ s reasoning was that V.T. had not singled out the applicant ’ s son as a “second-grade soldier of average physical and mental abilities”, but that he had only referred to “one of the soldiers”. It did not accept the applicant ’ s argument that the identity of the soldier was apparent from the context. The applicant ’ s claim that the statement was not true was therefore irrelevant.

7. On 29 September 2008 the Belgrade District Court quashed that decision and found V.T. not guilty of the charges. The District Court first found that the lower court had properly established the facts. It then went on to find that V.T. had acted in an official capacity when making the impugned statements. It ruled that the statements had been made at the request of the president of the military court and that they had been made for the purpose of “protecting the justified interests of the military judiciary and the military as a whole, with a view to informing the public about the facts and circumstances surrounding the death of the soldiers”. Since the statements V.T. had made were true, and since they had been made in his official capacity, the District Court found that the statements could not constitute a criminal offence, as provided for by Article 172 § 4 of the Criminal Code.

4. Proceedings before the Constitutional Court

8. On 29 November 2008 the applicant lodged a constitutional appeal. He complained under Articles 23, 32, 36 and 42 of the Constitution that the the above-mentioned criminal proceedings had been unfair and that there had been a violation of the right to dignity, the right to an effective legal remedy and the right to the protection of p ersonal information. On 3 March 2011 the Constitutional Court rejected the applicant ’ s constitutional appeal. It found that the applicant ’ s complaints concerning the fairness of the criminal proceedings were inadmissible ratione materiae , since the Constitution did not guarantee the right to a fair trial for a prosecutor in criminal proceedings. With regard to the applicant ’ s complaint of a violation of the right to the protection of personal information, the Constitutional Court considered that the “arguments of the applicant ... could not be brought in connection with such a guaranteed right”, and thus rejected it as unfounded.

B. Relevant domestic law

9. The Constitution ( Ustav ), published in the Official Gazette ( Službeni glasnik ) of the Republic of Serbia (“the OG RS”), no. 98/06, came into force on 8 November 2006 and provides, in so far as relevant to the present case:

Dignity and free development of individuals Article 23

“Human dignity is inviolable and everyone shall be obliged to respect and protect it. Everyone shall have the right to the free development of his personality if this does not violate the rights of others guaranteed by the Constitution.”

Protection of personal data Article 42

“The protection of personal data shall be guaranteed.

Collecting, keeping, processing and using personal data shall be regulated by law.

The use of personal data for any purpose other than that for which they were collected shall be prohibited and punishable in accordance with the law, unless necessary to conduct criminal proceedings or to protect the safety of the Republic of Serbia, in a manner provided for by the law.

Everyone shall have the right to be informed about any personal data collected about him, in accordance with the law, and the right to the protection of a court in cases of abuse of data.”

10. The Criminal Code 2006 ( Krivični zakonik) , published in the OG RS nos. 85/2005, 88/2005, 107/2005, came into force on 1 January 2006, but was applied in the criminal proceedings against V.T. as a more lenient law for the accused. The relevant Articles read as follows:

Dissemination of information on personal and family life

Article 172

“(1) Anyone who makes statements or disseminates information about someone ’ s personal or family life that may harm that person ’ s honour or reputation shall be punished with a fine or imprisonment for up to six months.

(2) If the offence specified in paragraph 1 of this Article is committed through the press, radio, television or other media or at a public gathering, the offender shall be punished with a fine or imprisonment for up to one year.

(3) If what is stated or disseminated resulted, or could have resulted, in serious consequences for the injured party, the offender shall be punished with imprisonment for up to three years.

(4) The offender shall not be punished for making statements or disseminating information about someone ’ s personal or family life in the discharge of an official duty, or the profession of journalist, when defending a right or defending a justifiable public interest, if he proves the truth of his allegations or if he proves reasonable grounds for believing that the allegations he made or disseminated were true.

(5) The truth or falsehood of information stated or disseminated about the personal or family life of a person may not be subject to the scrutiny of a court, except in the circumstances set out in paragraph 4 of this Article.”

Violation of the confidentiality of proceedings

Article 337

“(1) Anyone who discloses without authorisation what he has learned in court, in a minor-offence, administrative or other proceedings provided for by law, when the law specifies that such information may not be made public, or if it has been declared secret by a decision of the court or other relevant body, shall be punished by a fine or imprisonment for up to one year.”

11. The relevant part of the Code of Criminal Procedure ( Zakonik o krivičnom postupku ), published in the Official Gazette of the Federal Republic of Yugoslavia (OG FRY), nos. 70/01 and 68/02, as well as in the OG RS, nos. 58/04, 85/05 and 115/05, reads as follows:

Article 261

If the interests of morals, public order, national security, the interests of minors or of the private life of participants in proceedings so require, or when such a necessity arises from specific circumstances in which public knowledge could jeopardise the interests of justice, an official who is conducting an investigation shall order the persons he interviews or interrogates, or who are present during the performance of a particular investigative act or who review the investigation file, to keep secret certain facts or information of which they become aware during the investigation, and shall warn them that the disclosure of such secrets is a criminal offence. This order shall be set down in the record of the investigation, or shall be noted on the files which have been reviewed, together with the signature of the person so warned.

COMPLAINTS

12. The applicant, relying on Article 8 of the Convention, complains of the disclosure of personal information about his late son, which was gathered during a criminal investigation and which affected the reputation of his son and his family. The applicant further complains, relying on Articles 6 and 8 of the Convention, of the failure of the domestic authorities to punish the disclosure of this information.

QUESTIONS TO THE PARTIES

1. What rules governed the conditions and procedures for the disclosure of personal information gathered in the course of a criminal investigation, when such disclosure was made by police or judicial authorities before the conclusion of an investigation? The Government is requested to submit all relevant rules regulating the matter as they existed between 5 October and 17 December 2004?

2. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention?

3 . If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?