Published on 15 May 2023

FOURTH SECTION

Application no. 33805/20 Hristo KRUÅ ARSKI against Serbia lodged on 21 July 2020 communicated on 29 April 2023

SUBJECT MATTER OF THE CASE

The application concerns a civil defamation claim brought by the applicant domestically in respect of statements made by a local political activist, at a press conference and regarding the applicant’s allegedly “corrupt business practices”. At the relevant time the applicant was the director general of a well-known company based in Serbia. Ultimately, the civil courts ruled in the applicant’s favour and awarded him an amount equivalent to approximately 290 euros (EUR) for the non-pecuniary damage suffered. At the same time, the applicant was ordered to “pay his own” litigation-related costs and expenses (amounting, according to the available documentation, to approximately EUR 2,430).

Referring to Articles 6, 8 and 13 of the Convention, as well as Article 1 of Protocol No. 1, the applicant essentially complains that: (a) by having to pay the costs and expenses which were higher than the non-pecuniary damages awarded, he suffered a violation of his right of access to court and a breach of his property rights; (b) the practice of the Serbian courts was flagrantly inconsistent when it came to amounts of non-pecuniary damages awarded in comparable civil defamation contexts and, more generally, the proportion between the non-pecuniary damages awarded and the costs and expenses which had to be paid by the claimants; (c) the judgement of the Kruševac High Court and the Constitutional Court’s decision, adopted thereafter, were both not properly reasoned and provided him with no effective redress for the wrongs suffered; and (d) as a consequence of the above, and in particular the unacceptably low amount of the non-pecuniary damages awarded, he remains a victim of a violation of his right to privacy, i.e. the right to the protection of his reputation.

QUESTIONS TO THE PARTIES

1. Can the applicant still claim to be a victim of a violation of Article 8 of the Convention, within the meaning of Article 34 thereof (see, for example, Petrović v. Serbia , no. 40485/08, § 64, 15 July 2014, with further references)?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did he invoke before the Constitutional Court, at least in substance, the right under Article 8 of the Convention on which he now wishes to rely before the Court (see, for example, Zličić v. Serbia , nos. 73313/17 and 20143/19, § 70, 26 January 2021, with further references)?

3. Has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention (see, for example, Polanco Torres and Movilla Polanco v. Spain , no. 34147/06, §§ 40 and 41, 21 September 2010, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 130, 27 June 2017)?

4. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

(a) In particular, having regard to the relevant judgments and other documentation showing that the amount of non-pecuniary damages awarded to the applicant was lower than the litigation-related costs and expenses paid by him, has there been a breach of the applicant’s right of access to court as guaranteed under Article 6 § 1 of the Convention (see, mutatis mutandis , Čolić v. Croatia , no. 49083/18, §§ 39-60, 18 November 2021)?

(b) Furthermore, in view of the reasons given by Kruševac High Court in its judgment of 31 August 2017 and the Constitutional Court’s decision of 21 May 2020, were the provisions of Article 6 § 1 of the Convention respected in the applicant’s case (see, for example, H. v. Belgium , 30 November 1987, § 53, Series A no. 127-B, and Magnin v. France (dec.), no. 26219/08, § 29, 10 May 2012)?

(c) Lastly, having regard to the applicant’s allegation that the civil courts applied radically different case-law to factually very similar instances of defamation in terms of the amounts of non-pecuniary damages awarded and, more generally, as concerned the proportion between the non-pecuniary damages awarded and the costs and expenses which had to be paid by the claimants, was the principle of legal certainty contained in Article 6 complied with by the domestic judiciary (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016)?

5. Has there been a violation of Article 1 of Protocol No. 1? In particular, having regard to the relevant judgments and other documentation showing that the amount of non-pecuniary damages awarded to the applicant was lower than the litigation-related costs and expenses paid by him, has there been a violation of this provision (see, mutatis mutandis , Čolić , cited above, §§ 61 and 66-70)?

6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, as required by Article 13 of the Convention?