SECOND SECTION

Applications nos 15573/07 and 38709/10 Đorđe ĆAPIN against Montenegro and Đorđe ĆAPIN against Montenegro lodged on 31 March 2007 and 26 April 2010 respectively

STATEMENT OF FACTS

The applicant in both cases, 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] ).

A. The circumstances of the case

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

1. The first article and the ensuing set of criminal proceedings

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 by an Istria painter in May 2003, as well as, soon afterwards, a programme for the presentation “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”.

In March 2005 an Annual Report of the Montenegrin Helsinki Committee for Human Rights (hereinafter “MHC”), published on the Internet, referred to the applicant ’ s alleged refusal of the exhibition by the Istria painter, stating that it “appeared to be ethnically and religiously motivated”.

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”. In the article he primarily criticised the Head of the MHC, its annual report and its reference to the said exhibition, and explained that one of the paintings of the said Istria painter was permanently displayed in the Art Gallery, and that no other exhibition had either been offered or refused. The article also stated that “the idea about the ‘ prohibition ’ of the exhibition was further 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”.

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”. It would appear that, at the hearing, M.M. offered to withdraw his action if the applicant publicly apologised to him, upon which the applicant proposed that they apologise to each other, which proposal was not accepted.

On 29 March 2006 Z.D., as a Single Judge of the Court of First Instance, found the applicant guilty of the 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.

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. In particular, the court considered that the expressions used by the applicant belittled and underestimated M.M. ’ s personal and professional integrity and that the applicant actually admitted that he had insulted M.M. by proposing that they apologise to each other.

The court also 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 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. 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”.

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

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

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 not been paid within the specified time-limit. The applicant did not file an appeal against this decision.

It would appear that the applicant has not served a prison sentence.

2. The second article and the relevant criminal proceedings

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 ) to 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 a 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”.

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 a 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”.

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 the criticism even when it was not justified. He maintained that the trial against him had been treated as a priority whereas 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 the 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 the cases which were not priority.

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 a loyalty to the party”, “in a particularly short period” and “court martial” could harm the Z.D. ’ s personal and professional honour and reputation.

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 ( trpe ) a higher level of criticism.

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.

On 5 May 2010 the applicant filed a constitutional appeal, which would appear to be still pending.

It would appear that the applicant has paid the court fees, but that he has never paid the above fine.

3. Other relevant information

In 2005 and 2006 the applicant ’ s monthly salary was 366 EUR.

In 2009 his salary was 733 EUR.

M.M., as submitted by the applicant, was a publicist, as well as one of the founders of the SDP in Montenegro and a president of the SDP Municipal Committee in Herceg Novi at the relevant time.

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

B. Relevant domestic law

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

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.

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)

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.

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.

This Act entered into force in November 2008.

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

Section 195 provided an insult as a criminal offence and specified sanctions depending on the nature of the insult.

In particular, when an individual insulted another person a fine of between EUR 1,200 and EUR 4,000 would be imposed on him/her. If this criminal offence was committed via the media or in a public gathering a fine of between EUR 3,000 and EUR 10,000 would be imposed on the perpetrator. If the insulted person made an insult back the court could either sanction one or both parties, or acquit one or both parties.

It was further provided that a perpetrator would not be sanctioned if an insult was made within serious criticism in a scientific, literary or artistic work, in performing official duty, journalistic profession, political activity, when defending certain rights or when protecting justified interests if it was clear from the manner of expression or other circumstances that it had not been done with an intention to belittle.

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 to 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 to 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 195).

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.

Sections 195 and 196 were repealed on 9 July 2011 by virtue of another set of amendments to the Criminal Code.

4. 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)

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

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.

This Act entered into force on 23 June 2012.

COMPLAINTS

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

QUESTIONS

1. Has the applicant exhausted all effective domestic remedies in the second set of criminal proceedings, as required by Article 35 § 1 of the Convention? In particular, was an appeal to the Montenegrin Constitutional Court an effective remedy in respect of the applicant ’ s complaints? The Government are invited to indicate whether the Constitutional Court has already ruled in respect of any constitutional appeals relating to freedom of expression. Copies of any relevant decisions in this regard should also be submitted.

2. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in respect of the complaints raised in the first application, no. 15573/07? The Government are invited to submit a copy of the relevant delivery slip ( dostavnica ) as proof of when the applicant or his representative was served with a decision of the High Court issued on 22 June 2006.

3. Has there been a violation of the applicant ’ s freedom of expression, contrary to Article 10 of the Convention (see, mutatis mutandis , Dalban v. Romania [GC], no. 28114/95, § 50, ECHR 1999 ‑ VI; So koÅ‚owski v. Poland , no. 75955/01, § 51, 29 March 2005; Å abanović v. Montenegro and Serbia , no. 5995/06 , § 44, 31 May 2011; Bodrožić v. Serbia , no. 32550/05 , §§ 49-59, 23 June 2009)?

[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.