Resolution CM/ResDH(2009)135[1]
Execution of the judgments of the European Court of Human Rights
Lepojić and Filipović against Serbia
(Application No. 13909/05 and 27935/05, judgments of 06/11/2007 and 20/11/2007, final on 31/03/2008 and 20/02/2008)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violations of the Convention found by the Court in these cases concern unjustified interference with the applicants' freedom of expression on the account of proceedings brought against them concerning defamation or insult (violations of Article 10) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided only in the Lepojić judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2009)135
Information on the measures taken to comply with the judgments in the cases of
Lepojić & Filipović against Serbia
Introductory case summary
These cases concern unjustified interference with the applicants' freedom of expression, both local politicians, who were convicted of criminal defamation or insult and subsequently ordered in civil proceedings to pay substantial damages to the same plaintiff, a local mayor, who was also the director of a state-owned company (violations of Article 10).
In the case of Lepojić, the applicant was sentenced in the criminal proceedings to a suspended fine for criminal defamation in relation to his article, written in the run-up to the 2002 elections, alleging that the mayor had spent public funds on sponsorships and gala luncheons in a “near-insane“ manner.
In the case of Filipović, the applicant alleged in 2001, at a meeting attended by the Deputy Prime Minister, that the mayor might have been involved in embezzlement and tax evasion, in the absence of any conviction to that effect. In the criminal proceedings the applicant was sentenced to a fine. His criminal conviction for insult was not also examined by the Court, rationae temporis.
Both applicants subsequently became the objects of civil proceedings, founded on the criminal verdicts against them, in which they were ordered to pay damages.
The Court noted in both cases that, although the applicants' statements contained strong language and serious allegations, they were not “gratuitous personal attacks“ directed against the mayor and that the applicants clearly had legitimate reasons to believe that the mayor might have been involved in the activities alleged.
The Court also noted in the Lepojić judgment that "bearing in mind the seriousness of the criminal sanctions involved, as well as the domestic courts' dubious reasoning to the effect that the honour, reputation and dignity of the Mayor had more significance than ... [the honour, reputation and dignity] ... of an ordinary citizen" the interference in question "was not necessary in a democratic society".
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Lepojić
13909/05
0
3000 EUR
250 EUR
3 250 EUR
Paid on 30/04/2009
Filipović
27935/05
-
-
-
-
In the case of Filipović, the Court dismissed the applicant's claim for just satisfaction, which was submitted out of time.
b) Individual measures
In the Lepojić case, on 31/07/2008, the Municipal Court of Babušnica ordered the deletion of the applicant's conditional conviction from his criminal record.
In the case of Filipović, the Serbian authorities indicated that, on 16/11/2007, the Pirot Police Department had erased the applicant's conviction from his criminal record.
Following to the Courts' judgments in the present cases and in compliance with the provisions of the Serbian Civil Procedure Law (Article 422, Sections 10 and 7), both applicants are entitled to request reopening of the civil proceedings at issue and obtain reimbursement for the non-pecuniary damages they were ordered to pay in those proceedings.
II.General measures
On 25/11/2008 the Serbian Supreme Court adopted a legal position allowing the direct application of the case-law of the Court in the particular context of the present cases. According to this legal position, the degree of acceptable criticism is much wider for public figures than private individuals. The legal position is binding for all lower courts in the country.
The Serbian authorities also provided a copy of a judgment rendered by the District Court of Valjevo on 12/08/2008 in an unrelated case. Referring to Article 10 of the European Convention, this judgment states that the holders of public offices had to accept any criticism expressed on their account, even if such criticism exceeds the limits of customary decency.
The Court's judgments were published in the Official Gazette of the Republic of Serbia, Nos. 111 of 04/12/2007 and 114 of 08/12/2007 respectively, as well as on the website of the Government Agent (). The Agent forwarded the judgments with a note to the Ministry of Justice, the Supreme Court, the District Court of Pirot and Municipal Court of Babušnica. In addition, he published his comments on these judgments in the Paragraf legal journal and in the leading Serbian daily Politika on 22/11/2007. The judgments were also included in a book published by the Office of the Government Agent.
III.Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Serbia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies
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