SECOND SECTION

Application no. 22668/08 Jovan PEJOVIĆ against Montenegro lodged on 15 April 2008

STATEMENT OF FACTS

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

A. The circumstances of the case

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

1. The article and the ensuing criminal proceedings

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 of such complaints, filed by the applicant, as reported by the article, implied his abuse of 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. He thus enabled D.Š. to unlawfully make a profit between 15.000 and 20.000 euros (EUR) on a monthly basis by using somebody else ’ s property.

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.

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.

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 as of the day when the judgment became final, it would be converted into a 60-day prison term.

In the course of the proceedings t he applicant confirmed that he had filed 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 .

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.

V.Š., for his part, considered that the newspapers ’ 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.

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.

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 non-allocating the said eviction case to another judge. The remainder of the submission contained allegations related 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 convicting court judgment against V.Š. in this regard. The journalist ’ s statement was held to be illogical and made with the aim of helping the applicant.

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 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.

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”.

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.Š 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.Š. had enabled his brother ’ s significant unjust enrichment.

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.

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

On 10 March 2008 the High Court upheld the first-instance judgment in substance endorsing its reasoning, and held that all the other allegations made in the appeal could not lead the court to decide otherwise.

On an unspecified date thereafter the applicant paid the fine.

2. Other relevant information

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]

B. Relevant domestic law

1. 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 Official Gazette of Montenegro - OGM - nos. 40/08, 25/10, 73/10, 32/11 and 64/11)

Section 196 provided that whoever, in relation to another, asserted or disseminated a falsehood which could damage his/her honour or reputation would have a fine of between EUR 3,000 and EUR 10,000 imposed on him/her. If this was committed through the media or at a public meeting, the perpetrator would be fined between EUR 5,000 and EUR 14,000.

If the defendant proved that there were reasonable grounds to believe in the veracity of the claims which he/she had made or disseminated, he/she would not be punished for defamation, but could be punished for the offence of insult.

Section 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 the 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 a work in the public interest ( rad u javnom interesu ) instead of a prison sentence, EUR 25 corresponding to eight hours of such work.

Section 196 was repealed on 9 July 2011 by virtue of another set of amendments to the Criminal Code.

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

This Act entered into force on 23 June 2012. It provides, inter alia , that the sanctions for defamation shall not be enforced, the convictions shall be expunged and their legal consequences shall cease.

It makes no reference, however, to the sanctions which had already been enforced.

COMPLAINTS

The applicant complains under Article 10 of the Convention about a breach of his right to freedom of expression stemming from a final criminal court judgment rendered against him.

He also complains 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 rendered the first-instance judgment.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s freedom of expression, contrary to Article 10 of the Convention (see, mutatis mutandis , CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, § 111, ECHR 2004 ‑ XI; Castells v. Spain , 23 April 1992, § 46, Series A no. 236; SokoÅ‚owski v. Poland , no. 75955/01, § 51, 29 March 2005; Koprivica v. Montenegro , no. 41158/09 , § 73, 22 November 2011; Bodrožić v. Serbia , no. 32550/05 , § 58 in fine , 23 June 2009)?

2. Was the court which dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention? In particular, was the single judge of the Court of First Instance in Kotor impartial in view of the fact that she used to work with one of the private prosecutors and was his friend (see Fey v. Austria , 24 February 1993, § 47, Series A no. 255 ‑ A; Piersack v. Belgium , 1 October 1982, § 30, Series A no. 53; Remli v. France , 23 April 1996, § 48, Reports of Judgments and Decisions 1996 ‑ II)?

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