SECOND SECTION
DECISION
Application no. 24387/10
Željko IVANOVIĆ and DOO DAILY PRESS
against Montenegro
The European Court of Human Rights (Second Section), sitting on 5 June 2018 as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 15 April 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the fact that Nebojša Vučinić, the judge elected in respect of Montenegro, was unable to sit in the case (Rule 28) and that the President of the Chamber accordingly decided to appoint Valeriu Griţco to sit as an ad hoc judge (Rule 29),
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Mr Željko Ivanović (“the first applicant”), a Montenegrin national who was born in 1962 and lives in Podgorica, and D.O.O. Daily Press (“the second applicant”), a publishing company with its registered office in Podgorica. They are represented before the Court by Mr B. Lutovac and M. Đukić, lawyers practising in Podgorica (Montenegro) and Novi Sad (Serbia), respectively.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The impugned articles and the ensuing civil proceedings
3. The first applicant is a journalist and a co-founder and the executive director of the Montenegrin daily newspaper Vijesti. The second applicant is the publisher of the newspaper.
4. On 1 September 2007 Vijesti celebrated its 10th anniversary. After leaving the celebration venue the first applicant was assaulted in the dark and beaten up by three unidentified attackers. As a result of the assault he sustained a broken cheekbone (jagodična kost) and a number of haematomas and bruises.
5. Between 2 and 4 September 2007 Vijesti published several articles relating to the assault, some of them including the first applicant’s own comments.
6. In particular, on 2 September 2007 an article entitled “A club from Đukanović[1] and the family” (Palica od Ɖukanovića i familije) was published:
“[The first applicant] said that the former Prime Minister Milo Ɖukanović had sent his hellhounds (poslao svoje kerbere) yesterday morning to beat him up.
[The first applicant] said that ‘those who rule Montenegro’ had congratulated Vijesti on its tenth anniversary by these means.
‘It is a greeting from those ruling Montenegro, and that is Milo Đukanović and his family, be it biological or criminal’, said [the first applicant...]. On Radio Crna Gora [he] told Ɖukanović not to send his people on an ambush in the dark but to put himself on the line (sam izađe na crtu) instead of backing out in this kind of situation (umjesto što u takvim situacijama spušta pogled).
...
[The first applicant] considers that this was a warning to Vijesti to surrender (da polože oružje), and that there is an attempt to drown even the small islands of freedom in Montenegro, which make Đukanović nervous.”
7. The same day another article was published, entitled “We shall not be intimidated” (Neće nas uplašiti), signed by Vijesti’s editorial board (redakcija). It contained, inter alia, the following:
“For Vijesti there is no dilemma that the assault against [its] colleague Ivanović, with his sharp criticism of reality here, is [not only] an attack on all those free-minded people gathered in Vijesti and around it, but also an attack on freedom of thought and speech in general. The motive is to silence Vijesti and all those, who unfortunately are not numerous, who refuse to consider transitional mud and crime as the best of all society. To intimidate all those who do not want to live in a State where the mafia and authorities are interwoven to such an extent that it is difficult to distinguish one from the other (isprepleteni do neprepoznatljivosti), where the political top and mafia bottom are often on the same level, where smuggling is the backbone (okosnica) of the value system, and honest work and righteousness (pravednost) are laughed at in grandiose cafes. The intention is to warn once again those who do not accept this, that the list of unsolved murders can go on indefinitely (sezati u nedogled).
It is difficult to expect that the police in this case will go beyond its limits, blockades in mind and in organisation, and will solve the crime, arrest the attackers, identify (razobličiti) and imprison the instigators, those who ordered this. Even before Vijesti claimed that the Montenegrin police were managed from outside the police, the prosecution from outside the prosecution, the judiciary from outside the judiciary, that there was a parallel secret service, State Security or the National Security Agency, all the same. It is a Montenegrin reality and that is the real force, that is the weakness of the State (nemoć države).
In any event, the objective responsibility for all that and for the assault against Ivanović lies with the regime headed for 17 years by Milo Ɖukanović, who rules it even now, regardless of form. He and his people, from the top to the bottom, are responsible for an atmosphere in which journalists, writers, and all those who dare to think and speak differently, get hurt. Vijesti has no dilemma about it and it will continue its uncompromising criticism of both the ambiance and people responsible.”
8. It was also mentioned that a few hours before the assault the telephone of one of the editors-in-chief of Vijesti had rung and that the person on the other end of the line had politely introduced himself as Milo Ɖukanović.
9. On 3 September 2007 an article entitled “Even the birds know that he is the boss” (I vrapci znaju da je kapo) was published in Vijesti, and contained the following statements by the first applicant:
“The man who has four wars waged in the territory of ex-Yugoslavia on his conscience, an accomplice in politics which destroyed one country, killed hundreds of thousands of people and displaced millions of others, a person who is charged with organised crime and criminal association before the relevant investigative bodies of European countries, the boss who developed a criminal-financial octopus which is strangling (drži za vrat) Montenegro – that moral mountain of a man (gromada) is hurt, his honour harmed, and his mental anguish is such that only the courts can repair it (jedino sud može sanirati).
...
I am ready for any court, even Ɖukanović’s, as I do not see anything new or any misdemeanour (prekršajno) in anything I said, and even the birds know that he is the boss of the family, be it biological or criminal, which rules Montenegro and decides on all things, including the most precious – human life.
I invite him to try to prove his truth and defence on the public stage, and not through courts, prosecutors, criminals and his spokespeople. Because Ɖukanović needs to know that nothing lasts forever (ničija nije gorjela do zore).
My mother and I, we wish his child all the best. We want him in the future, as an honest and honourable citizen, to enjoy and be free and safe in a just and fair society, confident that the system of evil and injustice created and established throughout Montenegro by his father – for which both I and much more my mother suffer today – will go to the dustbin of history.”
10. On 4 September 2007 an article entitled “Various kinds of pressure” (Raznovrstan repertoar pritisaka) was published in Vijesti, including the following statement by the first applicant:
“These pressures came from the top of the State. Our family members were dismissed from work, threatened by anonymous calls, various inspections were sent to the company..., in the end they attempted to steal (otmu) the majority of stocks so that the daily could be edited as it suited Mr Ɖukanović. When all of this did not work out, the traditional methods were employed.”
a. Proceedings in the Court of First Instance
11. On 6 September 2007 Mr M. Đukanović (hereinafter “the plaintiff”) instituted civil proceedings against the applicants, seeking 1,000,000 euros (EUR) for the damage caused by all of the above articles and statements by the first applicant contained therein.
12. The applicants submitted that all the most senior political and State officials, including the plaintiff, should be held objectively responsible for increased crime, including assaults on and even the murder of journalists (poslenika javne riječi), and that the impugned articles should be seen in that context. They further maintained that the statements at issue were value judgments, and that the plaintiff, as a politician, had to display a greater degree of tolerance. They proposed that the parties to the proceedings and a number of other people be heard, and that an expert witness assess the level of mental anguish allegedly suffered by the plaintiff. They also maintained that the amount sought was too high and was aimed at suppressing freedom of expression. The applicants submitted that the courts should take into account the context and circumstances in which the statements had been made and the articles published. They relied, inter alia, on Article 10 of the Convention and the Court’s case-law.
13. On 19 May 2008 the Court of First Instance (Osnovni sud) in Podgorica ruled partly in favour of the plaintiff, concluding that his honour and reputation had been harmed, and ordering the applicants jointly to pay the plaintiff EUR 20,000 in non-pecuniary damages and to publish the judgment in Vijesti at their own expense. In particular, the court found that the plaintiff’s honour and reputation had been harmed by the first applicant’s statements in the article “A club from Ɖukanović and his family”, and the contents of the article “Even the birds know that he is the boss”, which described the plaintiff and his family as criminals, and which associated him with organised crime and criminal association. The court relied on Articles 16, 20, 34, 35 and 36 of the Constitution in force at the time, sections 1 and 20 of the Media Act (see paragraphs 39-45 below), and Articles 8 and 10 § 2 of the Convention.
14. In particular, the court considered that freedom of the press and other forms of public information, and the right to dignity and personal rights had to be balanced. It held that “parts of the above articles” were not value judgments but factual information, susceptible to proof, which had not been previously verified or proved, aimed at discrediting not only the plaintiff but his private and family life too. By publishing the above texts, which contained inaccurate, unproved information, without prior verification, subsequent rectification, acceptance of a mistake or a public apology to the plaintiff, the first applicant had persisted in harming the plaintiff’s reputation. As the executive director of a news medium, the first applicant was especially expected to respect the rules when publishing information, particularly that which could be harmful to others. The above texts harshly (grubo) harmed the plaintiff’s honour and reputation, considerably overstepping the limits of criticism to be tolerated by a politician, especially given that the impugned articles did not criticise the plaintiff’s public work but put the plaintiff and his family in a criminal context.
15. The court further held that “the right of the media to publish negative information and criticism relating to politicians did not give [them] the right to violate fundamental human values, the protection of which was provided in respect of every citizen regardless of his/her being a public figure or not. ... Public officials could not have fewer rights than others as that would be a violation of the principle of equality, which was guaranteed by the Constitution.”
16. The first applicant’s allegations that he had made the impugned statements when he had been in a specific state after the assault were dismissed as unfounded. The court also refused other proposed evidence as unnecessary.
17. In assessing the amount of damages the court took into account the importance of the plaintiff’s honour and reputation, the fact that several articles had been published in a daily newspaper which had a high circulation (visokotiražan), traditional understanding of Montenegrin society of moral human values, as well as the criminal context in which both the plaintiff’s personality and his family had been put.
b. Proceedings in the High Court
18. Both the plaintiff and the applicants appealed against the decision.
19. On 30 September 2009 the High Court (Viši sud) in Podgorica held that only the following statements harmed the plaintiff’s honour and reputation: “Đukanović had sent his hellhounds to beat [the first applicant] up”; “it is a greeting from those ruling Montenegro, and that is Đukanović and his family, be it biological or criminal”; “the boss who developed a criminal-financial octopus which is strangling Montenegro”, and “he is the boss of the family, be it biological or criminal, which rules Montenegro and decides on all things, including the most precious – human life”. It further held that instead of proving the veracity of the statements the applicants had repeated them. They had thereby misused freedom of expression, given that by “exercising it one could not insult others and harm their honour, reputation and dignity”, which was also prescribed in Article 10 § 2 of the Convention.
20. The court took into account the Court’s opinion that politicians should display a greater degree of tolerance towards criticism, but considered that the above statements overstepped the limits provided for by freedom of expression and the plaintiff’s obligation in that regard, especially given that the applicants had not refrained from mentioning the plaintiff’s family in the same insulting context.
21. It also considered that the compensation of EUR 20,000 was too high and reduced it to EUR 10,000 jointly.
22. Lastly, the court held that the other articles and statements, especially the text “We shall not be intimidated”, criticised the situation in Montenegrin society, and represented value judgments in respect of which no damages should be awarded. The court held that the applicants’ arguments in that regard, submitted in their appeal, were well-founded, which influenced the amount of the damages awarded. The amount was also influenced by the circumstances in which the texts had been written and the statements made, but the court considered that these factors did not justify the publication of untrue information and its transmission through the media, but rather represented its misuse. According to the High Court, the Convention and the Court did not protect that kind of information and statements.
23. This decision was served on the applicants on 17 October 2009.
c. Enforcement of the judgment of the High Court
24. On 4 March 2016 a bailiff (javni izvršitelj) issued an enforcement order on the basis of which the plaintiff collected EUR 16,113.79 from the second applicant’s account. The amount was increased due to the accrued interest.
2. Criminal proceedings
25. On 31 October 2007 the State prosecutor (Osnovni državni tužilac) filed an indictment against R.P. for violent behaviour, and M.B. for violent behaviour and inflicting serious bodily harm on the first applicant.
26. On 15 January 2008 the Court of First Instance in Podgorica found R.P. and M.B. guilty, on the basis of their confessions, and sentenced them both to four years’ imprisonment. It also established that they had been assisted by “a certain Miki from Sarajevo”. On 16 May 2008 the High Court in Podgorica reduced their sentences to one year.
27. On 5 March 2012 the first applicant’s lawyer sent a letter to the Supreme State Prosecutor’s Office submitting that R.P. and M.B. had been convicted contrary to all the evidence, and that even if they had been involved in the assault, there had been at least two more people involved. He requested that the investigation be reopened in order to identify the others involved.
3. Other circumstances
28. Below is further information considered relevant by the parties.
29. In spring 2004 a publisher and the director of Dan, a pro-opposition daily newspaper, was killed in the street.
30. In May 2007 a group of individuals, including the first applicant, organised a petition and issued a press release opposing the award of a regional peace prize to the plaintiff. He was nevertheless awarded the prize.
31. The first applicant’s gross income was 34,118.84 euros (EUR) in 2008 and EUR 36,808.88 in 2009. The second applicant’s profits were EUR 560,889 in 2008 and EUR 13,967 in 2009.
32. Between November 2007 and February 2014 there were eighteen separate attacks (involving the planting of explosive devices, physical assaults, threats, car arson and the stoning of premises) against journalists or premises of Vijesti. In spite of numerous measures undertaken by the relevant authorities (questioning of various individuals, obtaining camera footage, checking telephone communications and polygraph questioning) thirteen of these attacks remain unsolved to date. In five other cases the perpetrators were identified, found guilty in criminal or misdemeanour proceedings, and either fined, given a suspended sentence, or sentenced to between two and nine months in prison.
33. In December 2014 one person was found guilty of coercion and jeopardising the safety of a freelance journalist, and was sentenced to four months in prison. In March 2015 five other individuals were found guilty of violent behaviour against a journalist of Dan and were sentenced to between eleven and fifteen months in prison.
34. Between January 2012 and October 2015 the domestic courts ruled in eight cases of an alleged harming of honour and reputation, in six of which respondent parties were journalists and/or daily newspapers and/or companies publishing daily newspapers. The courts dismissed seven of them, and in one ruled partly in favour of the claimant (an individual), awarding him EUR 2,500 of the EUR 9,000 claimed against a journalist/writer.
35. On several occasions in 2013 and 2014 the Media Development Investment Fund urged the plaintiff to refrain from provocative language when speaking about Vijesti.
36. On 31 January 2014 Human Rights Action/Akcija za ljudska prava, a Montenegrin NGO, issued a report entitled “Prosecution of attacks on journalists in Montenegro”. The report mentions thirty cases of assaults, threats, arson and so forth against various journalists (including the assault against the first applicant), human rights campaigners and a writer. In one incident a person (the writer’s driver/bodyguard) was murdered. All of the incidents took place between 27 May 2004 and 3 January 2014. According to the report, the murders of the Dan editor-in-chief and the writer’s bodyguard have never been resolved, some prosecutions became time‑barred, and in some cases where the perpetrators were identified their motives and those who ordered the attacks remained unknown. The report also considered the judgments issued in respect of the applicants to be in breach of Article 10.
37. Between 2012 and 2015 reports were issued by Freedom House (in 2012, 2013 and 2015), the US State Department (in 2012 and 2013) and the UN Human Rights Council (in 2014), which noted assaults and threats against journalists in Montenegro, the pressure they faced, the limited investigations and the consequent lack of accountability.
38. In October 2015 the Global Investigative Journalism Network awarded its prize to the Organised Crime and Corruption Reporting Project “for [its] series ‘Unholy Alliances’ on Montenegro as a mafia state”, which “exposed how [the plaintiff] and his family bank [were] at the centre of an unholy alliance of government, organised crime and business.”
B. Relevant domestic law
1. Constitution of the Republic of Montenegro (Ustav Republike Crne Gore, published in the Official Gazette of the Republic of Montenegro - OG RM - no. 48/92)
39. Article 16 of the Constitution in force at the time provided that everybody was obliged to respect the rights and freedoms of others, and that any abuse (zloupotreba) of those rights or freedoms was considered anti‑constitutional and subject to punishment.
40. Article 20 guaranteed the inviolability of an individual’s physical and psychological integrity, privacy and personal rights, and his or her dignity and safety.
41. Article 34 provided, inter alia, for freedom of expression.
42. Article 35 provided for freedom of the press and other media, as well as the right of individuals (građani) to publicly express their opinions through the media (u sredstvima javnog obavještavanja).
43. Article 36 provided for the right to reply and correction of incorrect published data or information, as well as the right to compensation for damage caused by the publication of untrue data or information.
2. Media Act (Zakon o medijima; published in the OG RM nos. 51/02 and 62/02)
44. Section 1 provides that the media in Montenegro are free, and that freedom of information is guaranteed in accordance with the standards provided in international human rights texts (UN, OSCE, Council of Europe, EU). It further provides that the Act should be interpreted and applied in accordance with the principles of the Convention and the Court’s case-law.
45. Section 20 provides that, unless otherwise provided by the Act, the founder of the medium is responsible for the content it publishes. Should the media publish content which violates the statutorily protected interest of a person to whom the relevant information refers or insults someone’s honour or integrity, or disseminate untrue allegations about someone’s life, knowledge or competencies, the person concerned is entitled to lodge a compensation claim against the author and the founder of the medium.
3. Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89, 57/89 and the Official Gazette of the Federal Republic of Yugoslavia no. 31/93)
46. Section 16 provided that everyone had to refrain from actions which could cause damage to others.
47. Under Articles 199 and 200, inter alia, anyone who had suffered mental anguish as a consequence of a breach of his honour or reputation could, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.
COMPLAINT
48. The applicants complained under Article 10 of the Convention of a breach of their right to freedom of expression stemming from the final civil court judgment rendered against them.
THE LAW
49. The applicants complained of a breach of their right to freedom of expression. They relied on Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others....”.
50. The Government contested that complaint.
A. The parties’ submissions
1. The Government
51. The Government submitted that the applicants had not exhausted all effective remedies. Notably, they had failed to lodge a constitutional appeal.
52. They also maintained that the interference in the present case had been lawful, had had a legitimate aim, and had been necessary in a democratic society. In particular, the impugned statements were serious accusations against the plaintiff, aimed at discrediting not only him but also his family. The national courts had displayed a balanced approach, and had given relevant and sufficient reasons for their judgments. When assessing the amount of compensation they had ensured that it would not discourage the media from publishing information of public interest.
53. Furthermore, the national bodies had conducted an effective and thorough investigation into the incident, and had identified and sentenced the perpetrators (see paragraphs 25-26 above). In spite of that, the applicants had failed to rectify the statements or apologise to the plaintiff, which showed their persistence in harming his personality and moral integrity by portraying him as a criminal (kriminogena ličnost).
54. The Government stated that the State was committed to effectively resolving attacks against journalists; in support of that statement they submitted the domestic judgments referred to in paragraph 32 above.
2. The applicants
55. The applicants submitted that a constitutional appeal was not an effective remedy at the time, relying on the case of Siništaj and Others v. Montenegro (nos. 1451/10 and 2 others, § 123, 24 November 2015).
56. They submitted that the limits of freedom of speech had not been overstepped in the present case. The impugned statements were value judgments, and as such not subject to limitations. They were about the plaintiff’s political responsibility for creating a climate where attacks against journalists went unpunished. Their aim was not to present him as a criminal, but to encourage effective investigations into attacks against journalists and prosecution of the perpetrators. The plaintiff, as a person in the public eye, had to accept a higher level of criticism, exaggeration and even provocation. Journalists of Vijesti had attempted to contact him at the time, but he had been unwilling to respond to their questions. His only response had been a court claim.
57. The applicants further maintained that the editor-in-chief of another Montenegrin daily newspaper, Dan, had been murdered in 2004, a murder which had not been solved, and that the impugned statements also had to be seen in that context. Furthermore, the investigation in the present case had not been effective either. Notably, R.P. and M.B. had not fit the description of the attackers, and even if they had been involved in the assault, at least one other person, who had never been found, had been involved too. In spite of that, the case was closed as solved in 2008. In addition, after the assault against the first applicant there had been eighteen other assaults against journalists or the property of Vijesti (see paragraph 32 above), most of which remained unsolved. Following an EU demand a commission had been established to investigate these attacks, but it had achieved no results in two years.
58. The applicants submitted and referred to the reports issued by the NGO Human Rights Action, Freedom House, the US State Department and the UN Human Rights Council, which had noted assaults and threats against journalists in Montenegro, the pressure they faced, the limited investigations and the consequent lack of accountability (see paragraphs 36-37 above). They further submitted that: (a) the Organised Crime and Corruption Reporting Project had revealed a financial network connected to the plaintiff’s family, an article for which they had received an award from the Global Investigative Journalism Network, which, for its part, referred to Montenegro as “a mafia state” (see paragraph 38 above); (b) Reporters without Borders considered the plaintiff responsible for the campaign against Vijesti and the independent media in Montenegro; and (c) the Media Development Investment Fund had urged the plaintiff on several occasions to refrain from provocative language when speaking about Vijesti (see paragraph 35 above).
B. Relevant principles
59. The relevant principles as regards the exhaustion of domestic remedies are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-75, 25 March 2014).
60. The relevant general principles related to Article 10 are set out, for example, in Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no 17224/11, § 75, ECHR 2017):
“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”
61. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999‑III; Dalban v. Romania [GC], no. 28114/95, § 49, ECHR 1999-VI; and Prager and Oberschlick v. Austria, 26 April 1995, § 38 in fine, Series A no. 313).
62. In its practice, the Court has distinguished between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Lingens v. Austria, 8 July 1986, § 46, Series A no. 103). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Morice v. France [GC], no. 29369/10, § 126 in fine, ECHR 2015, and the authorities cited therein). The Court reiterates, however, that the classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 55, ECHR 2007‑IV). In addition, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Morice, cited above, § 126; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004‑XI; Busuioc v. Moldova, no. 61513/00, § 61, 21 December 2004, and the authorities cited therein; and Karpetas v. Greece, no. 6086/10, § 69 and § 78, 30 October 2012). Furthermore, where a value judgment amounts to a serious allegation, tantamount to an allegation of criminal activity, the importance of a factual basis for the judgment is crucial (see Pfeifer v. Austria, no. 12556/03, §§ 47-48, 15 November 2007).
63. The Court reiterates that the right to freedom of expression is not absolute and its exercise must not infringe other rights protected by the Convention, such as the right to respect for private life under Article 8 (see Von Hannover v. Germany, no. 59320/00, §§ 57-58, ECHR 2004‑VI; Pfeifer, cited above, §§ 35 and 38, and Petrina v. Romania, no. 78060/01, § 36, 14 October 2008), or the presumption of innocence enshrined in Article 6 § 2 (see Pedersen and Baadsgaard¸ cited above, § 78 in fine).
64. In instances where the interests of the “protection of the reputation or rights of others” bring Article 8 into play, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting the two values guaranteed by the Convention, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Medžlis Islamske Zajednice Brčko and Others, cited above, § 77, and Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 58, 22 October 2009). Given the nature of the conflicting interests, the States must be given a certain margin of appreciation in striking the appropriate balance between those rights (see A. v. Norway, no. 28070/06, § 66, 9 April 2009). Where the exercise of striking a balance between two conflicting rights was undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 90-92, ECHR 2015 (extracts); and Verlagsgruppe Droemer Knaur GmbH & Co. KG v. Germany, no. 35030/13, § 38, 19 October 2017).
65. The Court reiterates that the limits of permissible criticism are wider as regards a politician than as regards a private individual. Unlike the latter, the former inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance (see, for example, Ruusunen v. Finland, no. 73579/10, § 41 in limine, 14 January 2014, and the authorities cited therein).
66. Article 10 of the Convention does not, however, guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and of political figures. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which are liable to assume significance when, as in the present case, there is a question of attacking the reputation of named individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas, cited above, § 65; Rumyana Ivanova v. Bulgaria, no. 36207/03, § 61, 14 February 2008; and Europapress Holding d.o.o., cited above, § 58). Indeed, in situations where on the one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and in good faith becomes paramount (see Flux v. Moldova (no. 7), no. 25367/05, § 41, 24 November 2009).
67. Lastly, the nature and severity of the sanction imposed are also factors to be taken into account when assessing the proportionality of the interference under Article 10 of the Convention (see Europapress Holding d.o.o., cited above, § 54 in fine).
C. Application of the principles to the present case
68. Turning to the present case, and as regards the Government’s objection as to the exhaustion of domestic remedies, the Court held in Siništaj and Others that a constitutional appeal had only been an effective domestic remedy in Montenegro since 20 March 2015. As the present application was lodged with the Court on 15 April 2010 the applicants were not required to avail themselves of that remedy at the time. The Government’s objection in this regard must therefore be dismissed.
69. The Court further considers that the final civil court judgments undoubtedly amounted to an interference with the applicants’ right to freedom of expression. Since the judgments were based on the Constitution in force at the time and the Media Act, both of which were accessible and foreseeable as to their application, this interference must be deemed as “prescribed by law”, within the meaning of Article 10 § 2. Furthermore, the judgments were adopted in pursuit of the legitimate aim of protecting the rights and reputation of others, an aim which is consistent with the protection afforded to the right to reputation under Article 8 of the Convention (see, for example, Alithia Publishing Company Ltd and Constantinides v. Cyprus, no. 17550/03, § 53, 22 May 2008, and the authorities cited therein). What remains to be resolved, therefore, is whether the interference was “necessary in a democratic society” or, in other words, whether the judgment was proportionate to the legitimate aim pursued.
70. The Court firstly notes that the domestic proceedings were civil proceedings and not criminal. It is also apparent from their judgments that the domestic courts fully recognised that the present case involved a conflict between the right to freedom of expression and protection of the reputation or rights of others, which they resolved by weighing the relevant considerations. In their reasoning the domestic courts balanced the conflicting rights and considered that it was necessary to restrict the applicants’ freedom of expression in order to protect the former Prime Minister’s reputation. In particular, the High Court, while taking into account that politicians should display a greater degree of tolerance towards criticism, significantly narrowed down the scope of the problematic sentences in the articles. It enumerated only four of them which it considered facts and as being harmful to the plaintiff’s reputation, and distinguished them from all the others which it considered value judgments and as such not meriting the award of compensation (see paragraph 19 and 22 above). More specifically, the High Court explicitly held that the article “We shall not be intimidated”, published on 2 September 2007, criticized the situation in Montenegrin society and represented value judgments in respect of which no damages should be awarded. The Court notes that this text included some rather harsh criticism including, for example, that “the mafia and authorities are interwoven to such an extent that it is difficult to distinguish one from another”, “smuggling is the backbone of the value system”, and that “the objective responsibility for all that and for the assault against [the first applicant] lies with the regime headed for 17 years by Milo Ɖukanović, who rules it even now, regardless of the form. He and his people, from the top to bottom, are responsible for an atmosphere in which journalists, writers, and all those who dare to think and speak differently, get hurt” (see paragraph 7 above). The High Court, thus, was sensitive to allowing journalists to express criticism against the regime. In the light of these elements, the Court finds that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and that they relied on an acceptable assessment of the relevant facts. Against that background, the Court considers that, having regard to the margin of appreciation accorded to decisions of national courts in this context, it would require strong reasons to substitute its view for that of the High Court.
71. In that connection it notes that the applicants are a journalist and founder of the daily newspaper Vijesti, as well as its publishing company. Following the assault against the first applicant Vijesti published a number of articles related to the incident. In the articles the first applicant, inter alia, named the plaintiff, a senior politician and the Prime Minister for many years, and accused him of being directly responsible for the assault. He also mentioned his family and repeated these accusations over the next couple of days. The articles thus concerned a matter of public interest and involved a political figure. The Court also considers that the articles contained specific allegations of fact concerning a named individual, which were as such susceptible to proof. It therefore agrees with the assessment of the High Court in that regard.
72. The Court’s case‑law is clear on the point that the more serious the allegation is, the more solid the factual basis should be (see Pedersen and Baadsgaard, § 78 in fine; Rumyana Ivanova, § 64; and Europapress Holding d.o.o., § 66, all cited above). The allegation in the instant case was very serious. There is nothing in the case file, however, to indicate that the applicants in the present case were concerned with verifying the truth or reliability of the allegations to a high standard at any moment. They failed to provide any evidence before the domestic courts in support of the first applicant’s allegations. The second applicant, for its part, except for apparently unsuccessfully having attempted to contact the plaintiff (see paragraph 56 above), does not appear to have undertaken anything in order to verify the serious allegations made by the first applicant or, alternatively, to take a more cautious approach in conveying the impugned statements (see, mutatis mutandis, Europapress Holding d.o.o., cited above, §§ 68-69). Instead, the applicants argued that the impugned statements were value judgments and as such did not require proof, and that their aim was to emphasise the plaintiff’s political responsibility for the climate where attacks against journalists remain unpunished (see paragraphs 12 and 56 above). The Court considers, however, that there is a distinction to be drawn between stating that the plaintiff was politically responsible for such an environment and accusing him of personally sending someone to physically attack the first applicant. Before the Court the applicants referred to the unresolved murder of the editor-in-chief of another daily newspaper, to a number of other attacks related to Vijesti, and to various foreign reports. With the exception of the murder of the editor-in-chief of Dan, the Court notes that all the attacks referred to took place and the reports were published after the first applicant had been assaulted. More importantly, none of them indicate the plaintiff as being directly responsible for the assault against the first applicant.
73. The fact of directly accusing specific individuals by mentioning their names and positions placed the applicants under an obligation to provide a sufficient factual basis for their assertions (see Lešník v. Slovakia, no. 35640/97, § 57 in fine, ECHR 2003‑IV, and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 101, ECHR 2004‑XI).
74. Having regard to the foregoing and to the margin of appreciation left to the Contracting States in such matters, the Court finds in the circumstances of the present case that the conclusions reached by the High Court on the basis of its balancing exercise cannot be regarded as unreasonable; consequently, the reasons adduced by the domestic courts for ordering the applicants to pay damages to the plaintiff were “relevant and sufficient” within the meaning of its case‑law. The Court therefore does not find any reason, let alone a strong reason, to substitute its view for that of the final decision of the High Court.
75. Lastly, the Court considers that award of damages in the amount of EUR 10,000 was not, in the circumstances of the case, excessive. The Court attaches particular weight to the fact that the compensation was awarded against the applicants jointly. Also, when determining the amount of damages, already the Court of First Instance took into account that the daily newspaper published by the second applicant had a high circulation (see paragraph 17 above). The High Court went further and significantly reduced, by half, the amount awarded taking into account, inter alia, the circumstances in which the texts had been written and the statements made (see paragraphs 21-22 above). Their decisions are therefore in line with the Court’s case‑law that an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Verlagsgruppe Droemer Knaur GmbH & Co. KG, cited above, § 60, and Europapress Holding d.o.o., cited above, § 73).
76. In view of the above, the Court considers that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 28 June 2018.
Stanley NaismithRobert Spano
RegistrarPresident
[1]. Milo Đukanović served as Prime Minister of Montenegro from 1991 to 1998, then as the President from 1998 to 2002 and as Prime Minister again from 2003 to 2006, 2008 to 2010, and 2012 to 2016. At the relevant time he was the president of the Democratic Party of Socialists, the ruling party in Montenegro.
Full & Egal Universal Law Academy