Notice of judgments and decisions of the European Court of Human Rights published in September 2023 against the Republic of Serbia
European Courtfor human rights (hereinafter: Court) is in the period from September 1 to 30, 2023, published two judgments and five decisions against the Republic of Serbia.
Of the two judgments, one was rendered by the Chamber (Radio broadcasting company B92 AD v. Serbia), and the other Board (Columpar).
All five decisions were made by a three-member Board. In four cases, the court declared the petitions inadmissible and rejected them (due to obvious unfoundedness, due to non-exhaustion of domestic legal remedies, due to abuse of the right to petition and because the applicant did not suffer significant damage), while in the fifth case it deleted the petition from the list of cases due to delivery unilateral declarations.
And -JUDGMENTS
1) Radio broadcasting company B92 AD v. Serbia (number 67369/16, dated September 5, 2023)
In the subjectRadio broadcasting company B92 AD v. Serbia, the Court accepted the petition of the applicant and established a violation of freedom of expression from Article 10 of the Convention.
The subject is related to the civil proceedings that were conducted against the applicant based on the lawsuit of the former assistant minister of health for the compensation of non-material damages due to injury to honor and reputation. The cause of the lawsuit is the applicant's reporting on alleged corruption during the procurement of the AH1N1 vaccine, in which the plaintiff was also mentioned as a suspect for abuse of official position.
The court found that the domestic courts recognized that the information published by the applicant contributed to the public debate and that someone who is an assistant minister should show a greater degree of tolerance.
However, according to the Court's assessment, domestic courts have lefttoo far in his own criticisms on the bill checks fact from the sides of the applicant.Submitter is own reporting founded on the notes which one is got from the police employee which one are led investigation and it's not there were doubts in hers credibility.Language which one is submitter used in reporting is was appropriate and submitter is called all sides Yes bring out your own version events.
The court found that, on the whole, the applicant acted in good faith and with the care expected of responsible journalism and assessed that the domestic courts exceeded the narrow field of assessment given to them by limiting the discussion of issues of public interest, and that they did not establish a fair balance between the rights from Article 8 and Article 10 of the Convention.
- Circumstances of the case
The applicant is a company from Serbia, a media company that owns the television channel TV B92 and the Internet portal B92.net.
During an unspecified period prior to November 27, 2011, the applicant's journalists conducted journalistic research for the documentary television series "Insider - Buying and Selling Health", which relates to the procurement of the 2009 AH1N1 vaccine. During the investigation, the editor-in-chief of the applicant's news program received "official note" no. 14/11, prepared by the Anti-Corruption Department (OBPK) on September 13, 2011.
In that note, the view of the case of the OBPK official, that it exists, was presented there is a well-founded suspicion that several persons have committed the criminal offense of abuse of official position, with the intention of favoring the company J., in order to grant it a privileged position and enable the acquisition of financial profit. Among those persons is listed the assistant of the Minister of Health, in relation to whom it was stated that there is a well-founded suspicion that she concealed important facts, conducted "secret negotiations" and ordered a subordinate to falsify a report. The "official note" also stated that the prosecutors did not accept the proposal of the OBPK, because they believed that there was a lack of evidence to initiate an investigation regarding the employees of the Ministry of Health. Additional consultations of the competent authorities were held at the Special Prosecutor's Office for Organized Crime, and of the 14 persons who were suspected at the time, one was finally submitted criminal charges against only three people, who were arrested.
During November and December 2011, on TV channel B92, the investigative series "Insider - buying and selling of health" related to the procurement of the AH1N1 vaccine in 2009 was broadcast several times, while in connection with this, an electronic publication was published on B92.net several journalistic articles: "Insider - selective justice", "Ministry reacts to Insider" and others. On those occasions, the applicant repeated the allegations from the "official note", emphasizing the name and photo of Z.P. and speculated that some persons, including Z.P, escaped criminal responsibility due to their position in the government.
Z.P. then requested that the applicant publish the denial of the information, but the applicant published only the part related to the intention of Z.P. to initiate proceedings against him. That litigation was initiated on April 27, 2012 with a lawsuit in which Z.P. sought compensation for non-material damages for mental pain due to injury to honor and reputation, with the request that the article be removed and the judgment published. The procedure was legally concluded by the judgment of the Appellate Court in Belgrade Mrs. 1720/2014 of June 5, 2014, by adopting the claims of Z.P.
The applicant then filed a constitutional appeal, which the Constitutional Court rejected by decisionAlready. 6434/2014 of May 18, 2016. In its decision, the Constitutional Court reiterated the views of the Court that regular courts should not evaluate the professional conduct of journalists too strictly, and that the media should in principle have the right to refer to the content of official reports without conducting a prior independent investigation , at least when it contributes to public debate on issues of legitimate interest. However, agreeing with the assessments of the regular courts, the Constitutional Court found that the official note is not a document of a state authority and that the conclusions about the illegal pressure on the criminal prosecution authorities reached by the journalists on the basis of that note were not founded. Applying the Court's three-part test, the Constitutional Court determined that the limitation of the applicant's freedom of expression served a legitimate goal, that it was proportionate to the achievement of that goal and necessary in a democratic society, as well as that the reasons of the regular courts for such action were constitutionally acceptable, relevant and sufficient.
- Complaints of the applicant
Referring to Article 10 of the Convention (freedom of expression), the applicant complained that the domestic courts, by adopting the claim of Z.P. denied him that right. The applicant complained that the reasons given by the domestic courts were not relevant and sufficient, that the courts did not distinguish between facts and value judgments, and that they did not achieve a fair balance between two opposing values, especially the right to respect for private life and freedom of expression.
- Decision of the Court
The court first found that in this case there was indisputably a restriction of freedom of expression, as well as that it was based on available, clear and predictable laws and that it served the legitimate goal of protecting the rights of others. What was disputed was whether the restriction was "necessary in a democratic society".
Then the Court reiterated the long-established position that honor and reputation are protected by the Convention as part of the right to respect for private life, but for an attack on the same to constitute a violation of that right, it must reach a certain level of seriousness, and in a way that prevents the enjoyment of that right . The need to achieve a fair balance between freedom of expression (from Article 10 of the Convention) and the right to respect for private life (from Article 8 of the Convention) is particularly emphasized.
The criteria for achieving this balance, according to the practice of the Court, are: contribution to the discussion of public interest; how well-known is the person to whom the information relates; that person's actions before publication; methods of gathering information and their veracity; form, content and consequences of publication; as well as the peculiarities of the factual situation of the given case.
Following these criteria, the Court first determined that the Constitutional Court had already accepted that the published information contributed to the public debate and that Z.P. as a public official, he should show a greater degree of tolerance. Although the Court considered that the behavior of Z.P. before the publication of the article is not important, he paid much more attention to the question of methods of gathering information and its veracity. First, the Court agreed with the domestic courts that the "official note" was not an official document, but found that despite this, the use of such a document falls within the scope of free investigation inherent in the practice of the profession of journalism.
With regard to the truth of the facts, the Court started from the principle of distinguishing factual statements from value judgments and determined that the domestic courts did not treat some of the statements as value judgments and sought the basis for them in the "official note". In principle, the Court found that the applicant's journalists acted in good faith and with the care expected of a responsible journalist.
When explaining the form, content and consequences of the publication of the information, the Court emphasized that at the time of publication, the police investigation had reached the "final stage" and that all the necessary checks had been carried out, as well as that the domestic courts did not take the position that the publication of the information in question entailed the inherent risk of influencing the course of the proceedings in any way, i.e. interfering with the right of Z.P. on the presumption of innocence.
Although it found that a rather modest sanction was imposed on the applicant, the Court reiterated that, when it comes to fines, the relatively moderate nature of this type of sanction would not be sufficient to negate the risk of a chilling effect on the exercise of freedom of expression. It was also emphasized that there must be exceptional circumstances for the media to be legitimately obliged to publish a judgment or remove an article in the case of defamation.
Ultimately, the Court concluded that the domestic courts had overstepped the narrow margin of appreciation given to them by limiting discussion of matters of public interest, and that it must therefore be concluded that the interference was disproportionate to the aim pursued and not "necessary in a democratic society" in within the meaning of Article 10, paragraph 2 of the Convention.
The court obliged the Republic of Serbia to pay the applicant 2,740 euros (EUR) in the name of compensation for material damage, 2,500 euros (EUR) in the name of compensation for non-material damage and 2,400 euros (EUR) in respect of the costs of the procedure.
2) Kolompar against Serbia (number 34167/15, dated September 26, 2023)
In the subjectKolompar against Serbia, the Court accepted the petition of the applicant and established a violation of the right to a fair trial from Article 6, paragraph 1 of the Convention.
The case refers to the fairness of the criminal proceedings (admissibility of evidence) in which the applicant's guilt was established solely on the basis of recognition by the victim at the main trial after the police had already shown the victim only photographs of the applicant and no one else, and after the victim had seen the applicant in in the capacity of the defendant in the courtroom.
The court assessed that domestic courts did not comply with two basic requirements of criminal law: (a) that it is up to the prosecution to prove the defendant's guilt beyond a reasonable doubt; and (b) principlein dubio pro reo which requires that, due to the existence of any doubt as to the reliability of the evidence, the defendant should be favored and not the prosecution.
- Circumstances of the case
In July 2010, the injured party submitted a criminal report to the Police Station in Kovačica, stating that two female persons of Roma nationality stole money from her house. On that occasion, the police showed her only photographs of the applicant and the injured party marked the applicant as the person she saw at the gate leaving her yard, before she discovered the theft. The police made an official note about it, which was later excluded from the case file.
The applicant was charged with aggravated theft. During the proceedings before the first-instance court, the applicant denied committing the crime, stating that she had never been to the village where the theft took place. The victim stood by her statement and identified the applicant as the person she saw at the gate leaving her yard on the day her money was stolen. Most of the witnesses stated that they did not see anyone at the scene, that they saw a "suspicious car" in their village that day, but they could not agree on the color of that car or the direction from which it came, and one witness said that he saw two women but he could not identify the applicant.
The first-instance court found the applicant guilty and sentenced her to one year in prison, stating that it determined the decisive facts about the time, place and manner of the crime on the basis of statements given by the injured party and other witnesses, as well as on the basis of written documentation. The first-instance court considered the injured party's statement to be credible, while rejecting the version of events given by the applicant as an attempt to avoid criminal responsibility and as a contradictory statement by the injured party.
The Appellate Court in Novi Sad confirmed the first-instance verdict stating that in the case in question the first-instance verdict was not based on the evidence obtained by recognition from Article 104 of the then-current Criminal Procedure Code, but on renewed testimony at the main trial, i.e. based on the fact that the injured party identified the applicant in the courtroom as a person who was in her yard on the day in question.
The Supreme Court of Cassation isrefused as an unfounded request to protect the legality of the applicant's counsel.
The Constitutional Court rejected the applicant's constitutional appeal.
- Decision of the Court
The court determined that the only evidence on which the conviction was based was the recognition of the applicant as a defendant by the injured party at the main trial, after the police had previously shown the applicant photos to the injured party and after the injured party had seen her as a defendant in the courtroom. In addition, according to the Court's opinion, there was no forensic or other physical evidence related to the criminal act, nor was the statement of the injured party confirmed by the statements of the witnesses in the proceedings.
Although the official note on the recognition of the applicant in the police was excluded from the criminal case file, the Court nevertheless concluded that the recognition was carried out in the absence of procedural guarantees prescribed by Article 104 of the Code of Criminal Procedure, which makes the testimony of the injured party suspicious, especially considering that the other witnesses they could not identify the applicant as the perpetrator of the crime.
The court concluded that the domestic courts did not sufficiently clarify existing discrepancies in the witness statements and that they accepted the victim's testimony despite the fact that it was not supported by any other evidence. In this way, the domestic courts failed to take into account the two basic assumptions of the criminal procedure: that the prosecution is obliged to prove guilt beyond a reasonable doubt and that in case of any doubts about the reliability of the evidence, the facts should be evaluated in favor of the accused (in dubio pro reo).
Accordingly, the Court found a violation of the right to a fair trial from Article 6, paragraph 1 of the Convention.
- Just satisfaction (Article 41 of the Convention)
The court noted that the provisions of Article 485, paragraph 1, point 3) and Article 492 of the Criminal Procedure Code, which is currently in force, prescribe, among other things, the right of the defendant to request a repetition of the procedure in the country if the Court finds a violation of his/her rights guaranteed by the Convention. Therefore, the Court assessed that, in the specific circumstances of the case in question, establishing a violation of the Convention sȃmo as per to myself represents enough fairly satisfaction in view there were what kind intangible damage which one is suffered applicant.
The court obliged the Republic of Serbia to pay the applicant the sum of 4,500 euros in compensation for the costs of the proceedings.
II DECISIONS
1) M.Đ et al. against Serbia(number 73865/16, dated September 5, 2023)
The case refers to the issue of violation of the right to life from Article 2 of the Convention, in the context of the positive obligation of the state to take measures to prevent suicide or other forms of self-harm by individuals deprived of their liberty.
The court found that in the case of B.Đ, the deceased husband and father of the applicant, the state authorities, based on the information they had, could not have known that there was a risk of suicide, which is why, in his case, special supervision by prison officials would have been carried out.
- Circumstances of the case
Mr. B.Đ, the deceased husband and father of the petitioner, was in the custody of the District Prison in Novi Sad since October 21, 2009, on suspicion of having committed the crime of illicit sexual activity under Article 182, paragraph 2 of the Criminal Code.
Two days after being admitted to the District Prison, on October 23, 2009, B.Đ. was examined in the regular procedure by the prison doctor. On that occasion, he was prescribed the previous therapy for hypertension, which he took regularly. The detainee came for a second medical examination at his own request, due to problems with insomnia. He was then prescribed therapy, which he was supposed to use for the next month. At the examination B.Đ. did not indicate psychological problems.
B.Đ. committed suicide on November 4, 2009. In the early hours of the morning, the detainee with whom he shared a room, found the deceased B.Đ. hanged in the bathroom, about which he immediately informed the prison officials.
After the death of B.Đ. was confirmed, the investigative judge on duty at the District Court in Novi Sad immediately conducted an investigation and ordered an autopsy of the deceased's body, as well as a toxicological analysis. On that occasion, statements were taken from the wife of the late B.Đ, her lawyer, the detainee with whom B.Đ. shared a room (in the Albanian language) with three prison officers. The diary of the late B.Đ. which was found at the scene is included in the case files.
Wife of the late B.Đ. and her lawyer stated that they did not notice any changes in the behavior of B.Đ. which would indicate a risk of suicide. The autopsy confirmed that death occurred by hanging, while no other injuries were found on the body of the deceased. A toxicology analysis showed the absence of drugs, medication or alcohol in his blood.
On May 19, 2010, the Higher Public Prosecutor's Office in Novi Sad decided that there are no grounds for criminal prosecution against any person for a criminal offense that is being prosecuted ex officio.
On June 16, 2010, the applicants filed a lawsuit against the Republic of Serbia for damages due to the death of a close person. In the lawsuit, they pointed out that the death of their husband and father occurred as a result of inadequate supervision by the employees of the District Prison in Novi Sad during his stay in custody.
On April 12, 2013, the Basic Court in Novi Sad, after presenting evidence by hearing the applicants, their lawyer, police officers and a neuropsychiatry expert who analyzed the diary of the deceased B.Đ, rendered a verdict rejecting the applicant's claim in its entirety. In the explanation, it was stated that the late B.Đ. did not suffer from depression or other mental disorder that would require psychiatric treatment or indicate suicidal intentions.
On April 9, 2014, the Court of Appeal in Novi Sad confirmed the first-instance verdict. In the explanation, this court stated that "adequate supervision" of a prisoner does not mean permanent supervision, especially in circumstances where there are no indications that the detainee has suicidal intentions.
The applicants filed a constitutional complaint with the Constitutional Court in which they complained about the outcome of the civil proceedings, emphasizing the violation of the right to a fair trial from Article 32, paragraph 1 of the Constitution. The issue of conducting an effective investigation was not raised.
By decision of July 25, 2016, the Constitutional Court rejected the constitutional appeal of the applicants with the explanation that the court decisions that the applicants complained about were based on a constitutionally acceptable and non-arbitrary interpretation of the applicable law.
- Complaints of the applicant
In the application, the applicants pointed out various violations of the rights guaranteed by the Convention, but the Court decided to submit their application for a response to the Republic of Serbia in connection with a possible violation of the right to life from Article 2 of the Convention.
- Decision of the Court
The court did not consider it necessary to separately consider the complaint of the Republic of Serbia regarding the abuse of the right to petition by the applicant due to the presentation of untrue information (specifically, that an autopsy of B.Đ. was not performed), as well as the complaint of failure to exhaust effective domestic legal remedies, because the petition declared inadmissible for other reasons.
Pointing to its rich practice, the Court pointed out that, based on Article 2 of the Convention, there is a positive obligation of the state to take measures to protect a person deprived of his liberty from self-harm, including suicide, in a situation where the state authorities knew or should have known that there is a real and imminent danger of such an act.
In order to determine whether the state authorities had or should have had knowledge of the danger of self-harm, a number of circumstances are evaluated, such as a previous history of mental problems, the severity of the mental state, previous suicide attempts, the presence of suicidal thoughts and threats of suicide, as well as a state of mental and physical distraction.
In cases where domestic proceedings have been conducted due to highlighted violations of the Convention, as a general rule, it is not up to the Court to replace domestic authorities in determining the factual situation. The court is not bound by the factual situation established in the domestic proceedings, but convincing reasons are needed that would lead it to depart from it.
In the specific case, the Court found that the late B.Đ. he had no history of mental health disorders, that his mental state did not appear to be serious, and that he did not threaten to commit suicide or show suicidal thoughts and intentions, nor any signs of physical or mental disorder. None of the witnesses heard noticed any changes in his behavior. The late B.Đ. was examined twice by the prison doctor, the first time when he was admitted to the detention unit, the second time after three days, when he received therapy for hypertension and insomnia. Based on all the evidence presented before the domestic court, there were no grounds for the prison officials to suspect that in the case of B.Đ. there is a risk of suicide.
Bearing in mind these circumstances, the Court concluded that in the specific case there are no reasons for deviating from the conclusion regarding the facts reached by the domestic court, namely that the competent authorities did not know and did not have to know that there was a real and immediate danger of suicide B.Đ. Therefore, the Court decided that it was not necessary to consider whether the domestic authorities had taken measures to prevent his suicide, which could reasonably have been expected to have been taken, had they been aware of such a danger.
The court assessed that the petition is clearly unfounded in the part that refers to the positive obligation of the state to take measures to prevent the suicide of persons deprived of their liberty, in accordance with Article 2 of the Convention.
Since the procedural aspect of Article 2 of the Convention, which refers to the implementation of an effective investigation by competent authorities, is not highlighted within the domestic legal system, the Court rejected the petition in this part due to non-exhaustion of domestic legal remedies.
2) Stevanović v. Serbia (number 4504/17, dated June 27, 2023, published on September 7, 2023)
The case refers to the applicant's claim that his constitutional appeal was rejected by the Constitutional Court as untimely even though this was not the case (the applicant submitted a return receipt as proof that he filed the constitutional appeal within the legally prescribed period of 30 days).
The Court found that, although the decisions of the Constitutional Court cannot in principle be subject to review, there is a legal remedy at the domestic level, provided for in the Rules of Procedure of the Constitutional Court from 2008 and Article 96 of the Rules of Procedure of the Constitutional Court from 2013, which in particular situations allows the Constitutional Court to review its own decisions and possibly conduct the procedure again when it turns out that the contested decision is based on an obvious mistake by the Constitutional Court itself that cannot be corrected otherwise.
In addition, the Court assessed that the practice of the Constitutional Court clearly shows that applicants whose constitutional appeals were mistakenly rejected as untimely, among other things, can achieve a review of decisions in this way (see for example, Už 3122/2012 of July 11, 2018 and Už -3124/2012 of June 7, 2018).
Due to all of the above, the Court assessed that the request for review, in an exceptional case, in principle represents an effective domestic legal remedy in the sense of Article 35, paragraph 1 of the Convention in situations like this.
Therefore, the Court determined that the applicant did not use this legal remedy, nor did he show that for any reason it was inadequate or ineffective in the circumstances of the specific case, as well as that there are no special circumstances that would release the applicant from the obligation to use it before addressing the Court .
The court declared the application inadmissible due to non-exhaustion of domestic legal remedies and rejected it in accordance with the provisions of Article 35, paragraph. 1 and 4 of the Convention.
3), 4)Živkov Aksin against Serbia (number 35107/22, dated 31August 2023, publishedSeptember 21, 2023.) andZarić against Serbia (number 49714/22, 31.August 2023, published 21 September 2023)
The court is the subjectŽivkov Aksin against Serbia, taking into account the amount of the applicant's claim (about 65 euros) and the fact that there was no evidence to indicate that non-payment of this amount would have a significant impact on his private life, concluded that the applicant did not suffer significant damage due to the alleged violation of the Convention, and made a decision to declare the application inadmissible and reject it in accordance with the provisions of Article 35, para. 3(b) and 4 of the Convention.
In the subjectZarić against Serbia, the Court found, based on the Government's allegations, that the domestic decision the applicant complained about was made entirely in his favor, and therefore made a decision to declare the petition inadmissible due to abuse of the right to an individual petition, and rejected it in accordance with the provisions of Article 35. st. 3(a) and 4 of the Convention.
5) Stepanović et al. against Serbia (number 54606/22, from theAugust 31, 2023, published on September 21, 2023)
The Court accepted the unilateral declaration submitted by the Government and decided to delete the application from the list of cases in accordance with the provisions of Article 37, paragraph 1 of the Convention.