Communicated on 5 November 2015

SECOND SECTION

Application no. 24387/10 Ž eljko IVANOVIĆ and DAILY PRESS against Montenegro lodged on 15 April 2010

STATEMENT OF FACTS

The applicants are Mr Ž eljko Ivanović (“the first applicant”), a Montenegrin national who was born in 1962 and lives in Podgorica, and D.O.O. Daily Press (“the second applicant”), a publishing company with its seat in Podgorica. They are represented before the Court by Mr B. Lutovac and M. Đ uki ć , lawyers practising in Podgorica (Montenegro) and Novi Sad (Serbia), respectively.

A. The circumstances of the case

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

1. The impugned articles and the ensuing civil proceedings

The first applicant is a journalist and one of the founders of an independent Montenegrin daily newspaper Vijesti , which for some time preceding the events below was critical of the Government and the authorities. The second applicant is the publisher of the newspaper.

On 1 September 2007 Vijesti celebrated its 10th anniversary. After having left the celebration venue the first applicant was assaulted in the dark and beaten by three unknown persons, as a result of which assault his cheekbone ( jagodi č na kost ) was apparently broken and he sustained a number of haematomas and bruises.

Between 2 and 4 September 2007 Vijesti published several articles relating to the assault, some of them including the first applicant ’ s own comments. In particular, on 2 September 2007 an article entitled “ A baton from Đukanović [1] and the family” was published with the first applicant ’ s statement that “ Đukanović sent his hellhounds ( poslao svoje kerbere ) to beat up [the first applicant]”, and “it is a greeting from those ruling Montenegro, and that is Đukanović and his family, be it biological or criminal”. Another article was published on 3 September 2007 entitled “Everybody knows who the boss is” with the first applicant ’ s statement that “the boss developed a criminal-financial octopus which is strangling Montenegro”, “that [he is] the boss of the family, be it biological or criminal, ruling Montenegro and deciding on everything, including the most important, human life”.

On 6 September 2007 Mr M. Đukanović (“the plaintiff”) instituted civil proceedings against the applicants seeking 1,000,000 euros (EUR) in damages caused by the above and a number of other statements of the first applicant published in Vijesti .

The applicants submitted that the statements at issue were value judgments, and that the plaintiff, being a politician, had to display a greater degree of tolerance. They proposed that the parties to the proceedings and a number of other persons be heard, and that an expert witness assess the level of mental anguish allegedly suffered by the plaintiff. They also maintained that the amount sought was too high and was aimed at suppressing freedom of expression. The applicants submitted that the courts should take into account the context and circumstances in which the statements had been made and the articles published. They relied, inter alia , on Article 10 of the Convention and the Court ’ s case-law.

On 19 May 2008 the Court of First Instance ( Osnovni sud ) in Podgorica ruled partly in favour of the plaintiff, considering that the plaintiff ’ s honour and reputation had been harmed by a number of articles and the first applicant ’ s statements contained therein, including those quoted above, and ordering the applicants jointly to pay the plaintiff EUR 20,000 in non-pecuniary damages and to publish the judgment in Vijesti at their own expense. In doing so the court relied on Articles 16, 20, 34, 35 and 36 of the Constitution in force at the time, section 20 of the Media Act (see B.1 and B.2 below) and Articles 8 and 10 § 2 of the Convention.

In particular, the court considered that the impugned statements were not value judgments but untrue factual information, which had not been previously verified or proved. They harshly ( grubo ) harmed the plaintiff ’ s honour and reputation, by far overstepping the limits of criticism to be tolerated by a politician, especially given that the impugned articles did not criticize the plaintiff ’ s public work but put the plaintiff and his family in the criminal context. The first applicant, being an executive director of one of the media, was especially expected to respect written rules when publishing information, in particular those which could be harmful to others.

The court further held that “the right of the media to publish negative information and criticism relating to politicians did not give [them] the right to violate fundamental human values, the protection of which was provided in respect of every citizen regardless of him/her being a public figure or not. [...] Public officials could not have fewer rights than others as it would be a violation of a principle of equality, which was guaranteed by the Constitution.”

The first applicant ’ s allegations that he had made the impugned statements when he had been in a specific state after the assault were held to be unfounded. The court also refused other proposed evidence as unnecessary.

In assessing the amount of damages the court took into account the importance of the plaintiff ’ s honour and reputation, the fact that there were several articles, published in a daily which had a high circulation ( visokotira ž an ), traditional understanding of Montenegrin society of the moral human values as well as the criminal context in which the plaintiff ’ s personality and his family had been put.

Both the plaintiff and the applicants appealed against the above decision.

On 30 September 2009 the High Court ( Vi š i sud ) in Podgorica held that only the above quoted statements harmed the plaintiff ’ s honour and reputation, and reduced the amount of non-pecuniary damages to EUR 10,000. It further held that instead of proving the veracity of the said statements the applicants had repeated them. Thereby they had misused freedom of expression, given that by “exercising it one could not insult others and harm their honour , reputation and dignity”, which was also prescribed in Article 10 § 2 of the Convention.

The court took into account the Court ’ s opinion that politicians should display a greater degree of tolerance towards criticism, but considered that the impugned articles and statements overstepped the limits provided for by freedom of expression and the plaintiff ’ s obligation in that regard, especially given that the applicants had not refrained from mentioning the plaintiff ’ s family in the insulting context as well. The High Court agreed that there was no need either to hear the plaintiff or to obtain an expert opinion on the mental anguish he had suffered.

The court finally held that the other articles and statements criticized the situation in Montenegrin society, and represented value judgments in respect of which no damages should be awarded.

This decision was served on the applicants on 17 October 2009.

2. Other relevant circumstances

In spring 2004 a publisher and the director of another pro-opposition daily, DAN , was killed in the street.

In May 2007 a group of individuals, including the first applicant, organised a petition and issued a press release opposing the award of a regional peace prize to the plaintiff.

There is no information in the case-file as to the applicants ’ income and profit at the relevant time. The official statistical data indicate that the highest individual income at the relevant time was that of financial brokers and it ranged between EUR 854 in 2008 and EUR 891 in 2009. There is no data as to the media outlets ’ profit.

B. Relevant domestic law

1. Constitution of the Republic of Montenegro ( Ustav Republike Crne Gore , published in the Official Gazette of the Republic of Montenegro - OG RM - no. 48/92)

Article 16 provided that everybody was obliged to respect others ’ rights and freedoms, and that any abuse ( zloupotreba ) of freedoms and rights was anti-constitutional and subject to punishment.

Article 20 guaranteed the inviolability of one ’ s physical and psychological integrity, privacy and personal rights, and one ’ s dignity and security.

Article 34 provided, inter alia , for freedom of expression.

Article 35 provided for freedom of the press and other media, as well as the right of individuals ( građani ) to publicly express their opinion through the media ( u sredstvima javnog obavještavanja ) .

Article 36 provided for the right to reply and correction of incorrect published data or information, as well as the right to compensation for damage caused by publishing untrue data or information.

2. Media Act ( Zakon o medijima ; published in the OG RM nos. 51/02 and 62/02)

Section 1 provides that the media in Montenegro are free, and that freedom of information is guaranteed in accordance with the standards provided in international human rights texts (UN, OSCE, Council of Europe, EU ). It is further provided that the Act should be interpreted and applied in accordance with the principles of the Convention and the Court ’ s case-law.

Section 20 provides that, unless otherwise provided by the Act, the founder of the medium is responsible for the published contents. Should media publish contents which violate a statutorily protected interest of a person to whom the relevant information refers, or insults one ’ s honour or integrity, or disseminates untrue allegations about one ’ s life, knowledge or competencies, an interested person is entitled to lodge a compensation claim against the author and the founder of the medium.

3 . Obligations Act ( Zakon o obligacionim odnosima ; published in the Official Gazette of the Socialist Fede ral Republic of Yugoslavia nos. 29/78, 39/85, 45/89, 57/89 and the Official Gazette of the Federal Republic of Yugoslavia no. 31/93)

Under Articles 199 and 200, inter alia , anyone who has suffered mental anguish as a consequence of a breach of his 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.

4. Civil Procedure Act ( Zakon o parni č nom postupku , published in the OG RM nos. 22/04, 28/05 and 76/06)

Section 397 (2) allowed, inter alia , for an appeal on points of law against the second-instance decision only if value of the claim wa s above 10,000 EUR.

COMPLAINT

The applicants complain, under Article 10 of the Convention, about the breach of their right to freedom of expression stemming from the final civil court judgment rendered against them.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicants ’ freedom of expression, contrary to Article 10 of the Convention (see, mutatis mutandis , Dalban v. Romania [GC], no. 28114/95, § 50, ECHR 1999 ‑ VI; Bodrožić v. Serbia , no. 32550/05 , §§ 46-59, 23 June 2009; Filipović v. Serbia , no. 27935/05, §§ 53-59, 20 November 2007; Tolstoy Miloslavsky v. the United Kingdom , 13 July 1995, § 49, Series A no. 316 ‑ B; Castells v. Spain , 23 April 1992, §§ 48-50, Series A no. 236; Europapress Holding d.o.o . v. Croatia , no. 25333/06 , § 59 and §§ 68-69, 22 October 2009 )?

The Government are further invited to:

(a) provide the Court with detailed information, together with the relevant documents, in respect of both the first and second applicants ’ monthly income and profit between 19 May 2008 and 30 September 2009; and

(b) inform the Court if there is any relevant domestic case-law in which the courts have requested that false information be first rectified, on the basis of Article 36 of the Constitution at the time, instead of awarding damages in favour of plaintiffs . The Government are also invited to submit all such case-law.

[1] Milo Đ ukanovi ć served as prime minister from 1991 to 1998, then as the president of Montenegro from 1998 to 2002 and as prime minister again from 2003 to 2006, from 2008 to 2010, and from 2012 onwards. At the relevant time he was the president of the Democratic Party of Socialists, the ruling party in Montenegro.