Kajganic against Serbia

The European Court of Human Rights (hereinafter: the Court) is on September 3, 2024. passed, and on October 8, 2024, announced the verdict in the case Kajganic against Serbia, number 27958/16.

It's a verdictpassed unanimouslyseven-member Council.

THE CIRCUMSTANCES CASES

The applicant is a lawyer from Belgrade, and at the relevant time she defended Mr. X in the criminal proceedings related to the murder of the Prime Minister of Serbia on March 12, 2003.

On September 9, 2004, the newspaper "Vreme" published an article by journalist Y entitled "Associates, lawyers and old friends".

Journalist Y claimed in the aforementioned article that there was a transcript of a telephone conversation between the applicant and her client X, during which she said that she had secured X's protected witness status with "her old friends" who were "two of the most powerful men in the country" (Minister of the Interior and the head of the BIA) in exchange for his perjury in the proceedings. It was also stated that the mentioned ttranscript registered by the Directorate for Combating Organized Crime andsent him the then Prime Minister, the Minister of the Interior, the Minister of Justice and the Chief of Public Security. A photo of the applicant was published with the article. Journalist Y stated in another media that he does not have a copy of the aforementioned transcript, but that in the event of a court proceeding, he would have the legal right to obtain a copy of it.

The head of the Directorate for the Fight against Organized Crime compiled information in which he pointed out that he did not send any official note to the Prime Minister, the Ministers of the Interior and Justice or the Chief of Public Security, that the wiretapping of Mr. X's phone was ordered by the investigative judges, and that in parts of the newspaper in question, of the article, journalist Y published false information and fabricated certain ones constructions.

On October 28, 2004, the applicant filed a lawsuit for non-material damages due to injury to honor and reputation, seeking compensation in the amount of 750,000 dinars. A few days later, she sent a letter to the editor of the weekly "Vreme", denying the allegations made in the article. Her denial was published later.

On February 14, 2008, the Third Municipal Court in Belgrade issued a verdict obliging journalist Y to pay the applicant 350,000 dinars in damages. During the course of the proceedings, the first-instance court repeatedly requested a copy of the disputed transcript from the competent state authorities, but did not receive it with the explanation that, among other things, the material in question is being considered within the framework of another criminal proceeding.

The applicant did not file an appeal against the first-instance verdict, but the defendant journalist Y filed a complaint, stating that as a natural person he could not obtain recordings and transcripts and submit them to the court.

On June 19, 2012, the Court of Appeal in Belgrade changed the first-instance verdict by rejecting the applicant's claim and ordering her to pay journalist Y the amount of 166,750 dinars for the costs of the proceedings. The Court of Appeals assessed, among other things, that the journalist published information that he believed to be accurate, and which related to events and persons about which the public had an interest in being informed, and that their publication was not done because of the violation of the applicant's honor and reputation, already in the public interest.

On October 6, 2012, the applicant submitted a constitutional appeal to the Constitutional Court.

The Constitutional Court dismissed the applicant's constitutional appeal in the part in which the violation of the right to a fair trial was foundrejected as unfounded, giving a detailed explanation of his decision, while in the remaining part he rejected the constitutional appeal, judging, among other things, that the applicant only incidentally pointed out the violation of the right to a trial within a reasonable time.

The applicant initiated criminal proceedings against the journalist on the occasion of the same articleY who was acquitted of the charges after the procedure.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicant submitted a petition to the Court on May 6, 2016.

In the petition, she complained about the violation of the right to respect for private and family life from Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), the violation of the right to a trial within a reasonable time from Article 6 of the Convention, and the violation of the right to an effective legal remedy from Article 13 of the Convention in connection with her complaints under Art. 6 and 8 of the Convention.

THE DECISION THE COURT

• Article 8 of the Convention

The Government stated that there had been no violation of Article 8 of the Convention, as the domestic courts had achieved a fair balance between the applicant's right to respect for private and family life on the one hand and the right to freedom of expression on the other hand, bearing in mind the significant public interest that existed and the applicant's status as a public figure, respecting the importance of the trust of journalistic sources and considering the absence of serious consequences for the applicant. The government particularly pointed out that the disputed article was part of a long and intense public debate surrounding the criminal proceedings related to the assassination of the prime minister and that it is difficult to imagine a topic of greater public interest or a topic that would require a more cautious approach by domestic courts when imposing sanctions, in any form , journalists who investigate this topic and inform the public about to her. Also, the Government pointed out that the disputed article did not contain any information about the applicant's private or family life, nor was it specifically directed against her, but that it dealt with the general social problem of closeness between certain state authorities, organized crime networks and members of the judiciary, including lawyers . Although the contested article did not portray the applicant in a particularly favorable light, it certainly did not portray her as an incompetent lawyer or as a lawyer who does not represent the interests of her clients - quite the opposite. Finally, the Government stated that informing the subject about certain information before its publication is not always necessary and specifically indicated that the right of journalists not to reveal their sources is an integral part of the right to information that needs special protection, and that in this particular case, the journalist is more tried to check the disputed information on several occasions.

The Court, first of all, referred to the general principles established in its practice regarding achieving a balance between the right to respect for private life and the right to freedom of expression. In this sense, the Court, among other things, reminded that the level of seriousness of interference in the private life of an individual, which is required for Article 8 of the Convention to be applicable in terms of reputation protection, must be so serious that it violates his personal integrity. Bearing in mind the circumstances of the specific case - that it is in the contested article a journalistonwrote that the applicant, a lawyer by profession, reached an agreement to grant her client the status of an associate witness in the criminal proceedings related to the assassination of the prime minister in exchange for giving false testimony - the Court assessed that the allegations reached the required level of seriousness when they could harm the rights of the applicant according to Article 8 of the Convention.

Furthermore, the Court noted that the information from the disputed article referred to the criminal proceedings that were conducted in connection with the assassination of the Prime Minister and the alleged irregularities in connection with the testimony and obtaining the status of a witness of an associate of the applicant's client, and assessed that the publication of such information is an integral part of the tasks media have in democratic society and that they contributed to the public debate.

Also, the Court is pointed to the conclusions of the domestic courts that the applicant, acting as a lawyer in such an important criminal proceeding, entered the public scene and that she could expect media coverage, and that the contested article focused only on her professional activity and not on any other aspect her private or family life.

The court considered that the criterion of the behavior of the person who is the subject of reporting before the publication of the article is not relevant in the circumstances of the specific case, but made a detailed statement about the content, form and consequences of the published article. In this sense, the Court is pointed out that the right of journalists to protect their sources is part of the freedom to "receive and communicate information and ideas without interference from public authorities", which is guaranteed by Article 10 of the Convention, and that the protection of journalistic sources is one of the cornerstones of press freedom. Therefore, the requirement that a journalist disclose the identity of his sources cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.

In the specific case, the Court stated that the applicant did not complain about the legality of the surveillance measures - the interception and recording of her telephone conversations, nor about the leakage of the information obtained in this way, and she did not point out the violation of the confidentiality of the communication between the lawyer and the client, which enjoys enhanced protection under Article 8 of the Convention, has already disputed its veracity information from the disputed article and complained that the state did not protect her in this regard.

The court noted that the domestic courts found that journalist Y published information obtained from a confidential source, which he believed to be accurate and that he respected his obligation to investigate and verify the information in question in detail, and that the courts found that in this case he did not justified in ordering him to reveal his source. The court also stated that the domestic courts tried on several occasions, ex officio, to obtain a copy of the transcript of the telephone conversation in question from the competent state authorities, but without success. Finally, the Court noted that the domestic courts have also given detailed statements on the fact that the journalist did not contact the applicant before publishing the article, but that her denial was properly published by the paper that previously published the contested article, as well as that the Court of Appeal in Belgrade found that the information in question did not reveal anything from private life the applicants have already focused on the events which could influence the course of criminal proceedings and dealt with issues of public interest. 

Based on all of the above, i.e. taking into account the contribution of the published information to the discussion of public interest, the degree of familiarity of the applicant as the person to whom the information relates, as well as the content, form and consequences of the published information, the Court concluded that the domestic courts properly weighed the relation of the applicant's interests to her protection reputation and interest in protecting the right to freedom of expression of the journalist who wrote the article about her. The court pointed out that the domestic courts recognized the public interest in the publication of such an article, and that there was no violation of Article 8 of the Convention in the aforementioned case.

• Article 6, paragraph 1 of the Convention

The court assessed that the civil proceedings in question were not particularly complex and that, in essence, it consisted in achieving a balance between two rights - the applicant's right to protect her reputation and the journalist's right to freedom of expression. The court further assessed that, on the one hand, the applicant's behavior did not contribute to the length of the proceedings because she only asked for a postponement of the hearing once, and that, on the other hand, the two-year delay in delivering the first-instance judgment to the applicant cannot be considered justified. Therefore, the Court determined that the duration of the civil proceedings of more than 7 years and 7 months at two levels of jurisdiction was excessive.

In relation to the applicant's complaints that the proceedings before the Constitutional Court lasted unreasonably long, the Court assessed that the period of 3 years and 2 months, although somewhat lengthy, cannot be considered excessive given that the proceedings were not of an urgent nature (unlike the case Milovanović v. Serbia in which the Court found a violation of the right to a trial within a reasonable time in the proceedings before the Constitutional Court that lasted for almost 3 years and 5 months, and which related to determining the custody of children).

Considering its conclusion regarding the duration of the civil proceedings, the Court established that there was a violation of the rights referred to in Article 6, paragraph 1 of the Convention.

• Article 13 of the Convention

The court noted that the applicant had various legal remedies available for her complaints under Art. 6 and 8 of the Convention. In this particular case, she decided to pursue civil proceedings in connection with the complaints under Article 8 of the Convention, and then she used the constitutional appeal in which she presented complaints under Art. 6 and 8 of the Convention. Her complaints were considered by both the Civil Court and the Constitutional Court. Also, the applicant sent a letter to the editor-in-chief of the public newspaper and her denial regarding the disputed article was published. The fact that the applicant was not satisfied with the outcome of the proceedings she conducted cannot be considered as an indication that the legal remedies she used were ineffective.

Therefore, the Court found that her complaints under Article 13 of the Convention were clearly unfounded and rejected them in accordance with the provisions of Article 35, paragraph. 3 (a) and 4 of the Convention.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the applicant the sum of 2,100 euros in compensation for non-material damage, while rejecting her request for compensation for material damage and costs of the procedure, taking into account the Government's objections.