PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

I am un able to join the majority in finding a violation of A rticle 10 of the Convention in this case. The reason for my dissent relates to the content of the press article at issue. As clearly shown in paragraphs 10 and 11 of the judgment, the domestic court found defamatory only th ose passages in which the applicant wrote that the Mayor of Babu š nica had spent “money belonging to the citizens of the Municipality”, “for his own existential needs”. The domestic c ourt found that this was untrue and that the applicant had failed to prove that he had reasonable grounds to believe that it was true.

It is clear to my mind that the Court ' s case-law on “value judgments” does not apply here and that the Court has no reason to call into question the findings of the domestic c ourts.

I would add that , certainly , the limits of acceptable criticism are very wide when the target is a political figure and I recognise that this is particularly true during an elect ion campaign. But this principle cannot apply to untrue statements of fact. Moreover , I note that the period of an election campaign is a very sensitive one also because it is normally impossible for defamation victims to react quickly enough in order to counter false allegations effectively.

For th ese reasons I am of the opinion that the domestic judgments and the consequent criminal and civil sanctions were not in breach of Article 10 of the Convention.

PARTLY DISSENTING OPINION OF JUDGE KREĆA

I much regret that I am unable to associate myself with the conclusions at which the majority have arrived in the merits part of the present judgment and I avail myself of the right to set out the reasons for my dissent.

My vote regarding the issue of admissibility of the complaint reflects an acknowledgment of the limited competence of the Chamber in relation to the established jurisprudence of the Court, although it seems legally vulnerable as regards the approach to the rule of exhaustion of domestic remedies.

The issue of effectiveness of domestic remedies: general observations

1. Viewed ab intra , in the light of the Court's jurisprudence, the standard of effectiveness established in casu appears to be a proper one.

If, however, the standard is looked upon ab extra , taking into account the “generally recognised rules of international law” referred to in Article 35 § 1 of the Convention as well as proper legal considerations, the matter is not free of legal difficulties.

2. It is doubtful whether “generally recognised rules of international law” on the matter exist at all.

As John Dugard , Special Rapporteur of the International Law Commission, finds in his “Third Report on Diplomatic Protection”, in the part relating to local remedies:

“Article 22 of the draft articles on State responsibility ... required the exhaustion only of those remedies which are 'effective'. Although this principle is accepted, its precise formulation is subject to dispute ...” (Third Report on Diplomatic Protection by Mr John Dugard , Special Rapporteur, UN General Assembly, Doc. A/CN.4/523, § 23 – emphasis added)

Article 14 of the draft articles proposed in the report, summarising judicial decisions, legal doctrine, State practice and codifications of the local remedy rule, puts forward three standards of effectiveness in terms of exceptions to the general principle that local remedies must be exhausted:

“Local remedies do not need to be exhausted where:

( a) the local remedies:

- are obviously futile (option 1);

- offer no reasonable prospect of success (option 2);

- provide no reasonable possibility of an effective remedy (option 3) .”

The Court's jurisprudence is clearly inclined to the standard of “reasonable prospect of success” (see, for example, Retimag v. the Federal Republic of Germany , no. 712/60, Commission decision of 16 December 1961, Yearbook 4, p. 385 at p. 400, and X, Y and Z v. the United Kingdom , nos. 8022/77 and 8027/77, Commission decision of 8 December 1979, Decision and Reports 18, p. 66 at p. 74), which, in terms of an exception to the rule of exhaustion of all domestic remedies, is less demanding than that of “obvious futility”, which requires “evidence not only that there was no reasonable prospect of the local remedy succeeding, but that it was obviously and manifestly clear that the local remedy would fail” (Third Report, cited above, § 31). The standard of “reasonable possibility of an effective remedy” occupies an intermediate position.

In concreto , it is of interest to note that “All enjoy some support among the authorities” (ibid., § 20) as well as in the jurisprudence of international courts and tribunals (see, inter alia , Finnish Ships Arbitration case (1934), 3 UNRIAA , p. 1504; Ambatilos claim (1956), pp. 119-20; Panevezys-Saldutiskis Railway case, 1939, PCIJ, Series A/B, no. 76, p. 19; and ELSI case, ICJ Reports 1989, p. 14 at pp. 46-47).

It appears, therefore, that there do not exist in international law generally recognised rules as regards the standard of effectiveness of a domestic remedy in terms of a “virtually uniform practice” expressing a general recognition that a rule of law is involved ( North Sea Continental Shelf cases, ICJ Reports 1969, § 74).

The matter is far from being irrelevant, since Article 35 § 1 provides that “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ” (emphasis added).

3. The jurisprudence of the Court breaks down the standard of effectiveness into three separate conditions: availability in terms of the individual right of the alleged victim; sufficiency; and effectiveness.

A couple of observations may be advanced in that regard, apart from the tautological element of this approach.

Primo , considering that the Convention and the generally recognised rules of international law operate only with the effectiveness of domestic remedies, and bearing in mind the plain and natural meaning of the word “effectiveness”, it transpires that such a breakdown may have a methodological but not a normative meaning. For if “effectiveness” implies being productive, achieving a result, then, obviously, availability or accessibility is but an element of effectiveness as such. Moreover, the element that is in the essence of the notion of “effectiveness” has a technical and not a substantive meaning, since a domestic remedy that is available in terms of an individual right of the alleged victim is not necessarily an effective one. For instance, a domestic remedy may be available as an individual right but not an effective one if, for example, the courts of the respondent State do not have the competence to afford an adequate remedy to the alleged victim.

Secundo , in the Court's jurisprudence, however, availability of the domestic remedy in terms of an individual right of the alleged victim is, as a rule, treated as a separate and autonomous requirement of effectiveness. Such an approach, justifiable from the standpoint of a quicker handling of cases submitted to the Court for adjudication, may come into conflict with the proper administration of justice in substantive terms. It does not appear to be in harmony with the wording of Article 13 of the Convention and with the proper legal considerations deriving from it.

Article 13 of the Convention provides for the “right to an effective remedy”. Consequently, the quality “effective” is, on the basis of the Convention, the only autonomous condition as regards domestic remedies. It is, of course, understandable that in the interpretation and application of the provision ad casum , the Court is in a position to examine constitutive elements, including availability, within the framework of effectiveness as a normative requirement. But the treatment of availability as a separate and independent requirement is one thing, and the assessment of availability in the context of the constitutive elements of effectiveness as a whole is another. For it is unclear why the absence of direct and individual access to the domestic courts would ipso facto and automatically disqualify the domestic remedy as effective if there exists a possibility of indirect access through government, or even judicial, authorities and the remedy, as such, is essentially capable of enabling redress.

Tertio , even in the case of an ab intra approach to the effectiveness of domestic remedies, availability in terms of an individual right need not be of an absolute character.

4. It appears that the interpretation according to which “the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism” (see, inter alia , Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III, and İlhan v. Turkey [GC], no. 22277/93, § 51, ECHR 2000-III) has acquired the characteristic of a well-established principle in the jurisprudence of the Court.

Expressed in general terms, this principle implies that its effect is reflected in two ways. On the one hand, as far as the Court's jurisprudence is concerned, it should relate to a broader interpretation of possible exceptions to the rule of exhaustion of all domestic remedies; on the other, it relates to the characterisation as effective remedies, for the purposes of Article 13 and Article 35 § 1 of the Convention, of those domestic remedies provided for in the domestic law of the Contracting Parties which, albeit with certain shortcomings in relation to the strict interpretation resulting from the jurisprudence of the Court, are essentially capable of providing effective redress for the violation alleged.

If the flexibility approach were to be understood as operating only in one direction – that is, a broader interpretation of exceptions to the rule of exhaustion of all domestic remedies – then the observation that “the European Court has interpreted the exhaustion rule in a way that favours” the alleged victim (see Sudre , Droit européen et international des droits de l ' homme , PUF, 2003, p. 538) gains additional strength.

5. The nature of domestic remedies supports such an approach.

Domestic remedies are, by their nature, procedural means that do not touch upon the actual breach of the Convention committed, having no per se juridical effect either on the existence of the unlawful act or on responsibility arising out of it (see, for example, Phosphates in Morocco case, PCIJ, Series A/B, no. 74, p. 28).

The function of domestic remedies is to permit the Contracting Party to discharge its responsibilities by delivering justice in its own way within the context of the obligations assumed under the Convention. The Contracting Party does this within its legal system as a totality of substantive and procedural rules. Unlike the substantive rules which the Contracting Party is bound, in accordance with its constitutional solution as regards the relationship between international and internal law, to make effective in foro domestico , the Convention has not established either the model or the kind of procedures available to the alleged victim with a view to the protection of substantive rights and freedoms guaranteed to it.

Consequently, the right of domestic remedies should be treated as a kind of self-contained legal structure within the domestic law of the Contracting Party, subject only to the condition of effectiveness as established by Article 35 § 1 of the Convention.

Specific observations as regards the request for protection of legality

6. In respect of the request for the protection of legality as a possible remedy, the position of the majority might be summarised as follows: the remedy is “ineffective as understood by Article 35 § 1 of the Convention” since the public prosecutor had “full discretion in respect of whether” to submit the request and the applicant “had no right under the law to make use of this remedy personally” (see paragraph 54 of the judgment).

In fact, the absence of direct and personal availability of this avenue of redress is seen as its ineffectiveness. Such an approach may appear to be inflexible and burdened with excessive formalism in the circumstances of the case.

Availability, as a relevant, primarily technical element of effectiveness, can hardly be its substitute or assume the meaning of effectiveness in its full scope. The standard of effectiveness, in addition to the technical element of availability, is also characterised by its substantive capability of affording redress in respect of the breaches alleged. In the assessment of the specific weight of these two elements of the standard of effectiveness, it is unclear why the absence of direct availability would a priori rule out the possible effectiveness of the specific remedy if the remedy is indirectly available through legal acts which are directly associated with or which derive from the acts of the alleged victim and relate to a remedy substantially capable of affording redress. A request for the protection of legality can hardly be said to lack this capability if, acting on the request, the Supreme Court may reverse a “final judicial decision” or quash it in its entirety or partly.

The basis for the disqualification of a request for the protection of legality in casu has been found in the fact that the public prosecutor “had full discretion” in respect of whether to submit a request when asked to do so by the applicant (see paragraph 54 of the judgment), expressing a more general position that “an effective domestic remedy cannot be of a discretionary character” (paragraph 53).

It is a fact that the public prosecutor is not, on the basis of the law, bound by a corresponding request by the applicant and that, therefore, it can be said that he or she possesses discretionary power. The key question in the concrete context seems, however, to be the nature of the discretionary power. In concreto , we are not dealing here with discretio generalis , but rather with discretio legalis in terms of discretion limited by cogent legal considerations emanating from the law in force that regulate the acts of the public prosecutor as regards a request for the protection of legality. Renowned commentators maintain that Article 419 requires that the public prosecutor “must submit (a request) if the request is to produce changes of practical significance in favour of the accused” (see, for instance, Tihomir Vasiljević , Momčilo Grubač , Comments on the Criminal Procedure Code , str. 744). Consequently, it appears that the request for the protection of legality provided the applicant with a reasonable possibility of obtaining an effective remedy, bearing in mind that, as Sir Gerald Fitzmaurice pointed out, “what there must be a reasonable possibility of is the existence of a possible effective remedy, and that the mere fact that there is no reasonable possibility of the claimant obtaining that remedy ... does not constitute the type of absence of reasonable possibility which will displace the local remedies rule” (G. Fitzmaurice, ' Hersch Lauterpacht – The Scholar as Judge' (1961), 37 BYIL , p. 1 at p. 60).

7. As the direct availability of a domestic remedy in terms of an individual right of the applicant constitutes only one element of its effectiveness, it seems improper to treat it as a self-contained basis for the disqualification of a concrete domestic remedy as being ineffective.

Availability, direct or indirect, should first be tested within the broader frame of the remedy's substantive capacity to provide adequate redress as the important element, although this need not be of decisive importance in each particular case.

Conversely, it is difficult to escape a step in the direction of excessive formalism. In the circumstances surrounding the case at hand, this can be demonstrated by a hypothesis.

If, under the law of the respondent State, the request for the protection of legality was directly accessible to the applicant, would that per se affect the substantive capacity of the request for the protection of legality to provide adequate redress or would it, for that matter, make the existing reasonable possibility in that regard only more certain?

Accordingly, in the light of these specific circumstances, and bearing in mind the functions of the Court (see paragraph 8 below), it appears not only fair but also more acceptable from the standpoint of the validity of the answer to the question of effectiveness of a particular remedy to resort to the testing of effectiveness on an empirical basis, as indicated by the dictum of the Chamber of the International Court of Justice in the ELSI case:

“... for an international claim to be admissible, it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success.” ( ICJ Reports 1989, p. 15 at p. 42, § 50)

This approach is also in accordance with the grammatical meaning of Article 35 § 1, requiring exhaustion of “all domestic remedies”.

8. The operation of the flexibility principle in both directions in the specific circumstances is also suggested by considerations of equity based on the general legal and social context in which these remedies are applied.

The respondent State falls within the group of Contracting Parties which undertook not long ago to incorporate in foro domestico a corpus of civil and political rights enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms and to submit to the supervisory power of the European Court of Human Rights.

Full compliance with this obligation required a certain period of time even in the case of the original Contracting Parties, which by tradition were already familiar with the concept and with the manner of legal reasoning, let alone in the case of the Contracting Parties which have found themselves in a process of radical and comprehensive changes that cannot be implemented uno ictu and automatically. Being formally bound by relevant instruments necessarily requires the adoption of proper standards of legal reasoning in the entire structure of the Contracting Party, including the judiciary. In that regard, the role of the Court can be significant. For the function of the Court as a supervisory judicial body is to be found not only in adjudicating on concrete cases but also in enhancing, through its legal reasoning, the consistent implementation of the substantive rules of the Convention by the Contracting Parties.

This latter function of the jurisprudence of the Court might be expressed in particular through the proper interpretation of effective legal remedies as a legal weapon most closely associated with the subsidiary nature of the jurisdiction of the Court. Besides, such an approach would have a positive impact as the expression of confidence in the domestic legal order in the wider frame of the bona fidae principle.

The merits of the case

9. As regards the freedom of political expression, it seems clear that the standards established in that regard are an exception to the general standards regarding the freedom of expression as defined by Article 10 of the Convention.

The position of the Court in this regard may be summarised as follows: the limits of permissible criticism are wider in relation to politicians than in relation to private citizens (see Castells v. Spain , judgment of 23 April 1992, Series A no. 236, §§ 46-50, and Lopes Gomes da Silva v. Portugal , no. 37698/97, §§ 34-36, ECHR 2000-X).

Exceptions to the rule must, according to the generally accepted principle, be interpreted restrictively ( exceptiones sunt strictissime interpretationis ).

In concreto , two elements are essential for the assessment as to whether the text in question is a political one promoting political values or ideas inherent in a democratic society or offensive, defamatory factual allegations.

The article in the instant case is largely or prevalently a political one, expressing political ideas and values concerning political trends, past and future, in the respondent State. To that extent, it can be subsumed, as a value judgment, under the special protection of political expression.

In some parts, however, it contains elements of factual allegations. It is said in the article that the mayor “ in line with the slogan ' money talks ' ... has continued with his near-insane spending of the money belonging to the citizens of the Municipality on ... sponsorships ... [and] ... gala luncheons ... ”

The decisive issue is not whether his spending was “near-insane”, but the allegation that he had “ continued with his near-insane spending of the money belonging to the citizens of the Municipality ...”,which is tantamount to a charge of abuse of official position, an offence under Article 242 of the Criminal Code of the Republic of Serbia. Consequently, that particular part is in fact an offensive, defamatory accusation devoid of foundation in the light of the evidence presented. The claim that the applicant had reasonable grounds to believe that the mayor had committed the criminal offence of abuse of official position seems shaky, primarily in the light of the fact that the applicant himself wrote the criminal charge, and as such, in the light of the fundamental principle of good faith, it cannot be taken as a reasonable ground for believing that the mayor might have been involved in criminal activity.

As the Court stated in Handyside v. United Kingdom (judgment of 7 December 1976, Series A no. 24, § 48): “... it is not possible to find ... a uniform European conception of morals. The view taken by [domestic] laws of the requirements of morals varies from time to time and from place to place ... By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements.”

10. It should be borne in mind that the moral standards in patriarchal, tradition-dominated communities, which undoubtedly include the community where the mayor and the applicant live and work, are of a specific nature.

The special weight that insult has in a patriarchal society was probably best described by the great poet Jovan Dučić in his work entitled Tzar Radovan ' s Treasure :

“A man feels more offended by bad things you said about him than by any wrong you did to him. People tend to forget bad blood and make it up more easily after a fight or unpleasant actions than after words which contain insult.”

Variae

11. In part II (G) of the judgment (“The Court of Serbia and Montenegro and the status of the State Union of Serbia and Montenegro ” – see paragraph 38) the majority refer to the relevant provisions of the Court's judgment in Matijašević v. Serbia . Two points should, perhaps, be noted, since by that reference the reasoning of the Court in the latter case becomes automatically relevant in casu .

Primo , the legal reasoning of the Court in the part of the Matijašević judgment entitled “VI. The succession of Serbia ” and its application to the instant case seem legally dubious and self-contradicting in the light of the relevant rules of international law and common sense respectively. The truth is, however, that it derives from a certain confusion with regard to the notions of “ successor State ” and “continuing State” within the succession complex.

The Republic of Serbia is not the successor State , whether one of the successors or the “sole successor”, in relation to the State Union of Serbia and Montenegro . In the light of the relevant rules of international law, as well as of the Constitutional Charter of the State Union sponsored by the European Union, it is a continuing State in relation to the State Union of Serbia and Montenegro , its legal identity and continuity in terms of international personality. Otherwise, it would be legally impossible to consider, as stated in the decision taken by the Committee of Ministers of the Council of Europe on 14 June 2006, that “( i ) Serbia ... (had continued) ... membership of [the State Union of] Serbia and Montenegro in the Council of Europe with effect from 3 June 2006 and (ii) that it had remained a party to a number of Council of Europe conventions signed and ratified by the former State Union of Serbia and Montenegro, including the Convention for the Protection of Human Rights and Fundamental Freedoms” (see Matijašević , cited above, § 25).

The legal position of Serbia as the continuator of the legal personality of the State Union of Serbia and Montenegro has also been recognised by the United Nations institutions (see Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide , Judgment, ICJ Reports 2007,§§ 67-79).

Otherwise, the issue of the locus standi of Serbia before the Court would automatically arise (compare the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide , §§ 67-79).

In essence, while the notion of “ successor State ” concerns sovereignty, the notion of continuity concerns the international legal personality of the State affected by territorial changes.

Hence, the term “sole successor” (see Matijašević , cited above, § 24) is devoid of legal substance within the law of succession and, as such, it reflects the long-abandoned analogy between succession in terms of international law and inheritance in domestic law. It may possess factual significance only in the sense of the number of new States or successor States which have emerged in the process of succession. This means that, in this particular case of succession, the Republic of Montenegro is the “sole successor”.

Secundo , the conclusion that, after Montenegro had declared its independence, “the ... entity [State Union of Serbia and Montenegro ] ceased to exist, as did all of its bodies, including the Court of Serbia and Montenegro ” (ibid., § 36) is legally hardly tenable. In terms of legal personality a predecessor State – in concreto , the State Union of Serbia and Montenegro – continues to live through a continuing State – in concreto , the Republic of Serbia – which is territorially reduced and, as a rule, retains all its institutions as well as its international rights and duties.

Whether or not some institutions will cease to exist is a matter within the exclusive power of the continuing State, to be determined on the basis of its own will, irrespective of international law. In the circumstances surrounding the case at hand, this is evidenced by the fact that the Court of the State Union of Serbia and Montenegro ceased to exist on the basis of the Decree issued on 8 June 2006 (Official Gazette, no. 49/2006).