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Šabanović v. Montenegro and Serbia

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    August 31, 2011
  • Outcome
    ECtHR, Article 10 Violation
  • Case Number
    5995/06
  • Region & Country
    Montenegro, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    Criminal Law, International/Regional Human Rights Law
  • Themes
    Defamation / Reputation, Political Expression
  • Tags
    False News, Imprisonment, Public Interest, Public Officials, Human Rights, Criminal Defamation, Political speech

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights (ECtHR) found Montenegro in violation of Article 10(2) of the European Convention on Human Rights (ECHR) for criminally prosecuting a public official for his  statements made on issues of public debate that also called into question the execution of a public function by another official.  In 2003, a Montenegro daily newspapers published an article, stating that the water in Herceg Novi was full of bacteria. The article was based on the water inspector’s statements who claimed that his allegations were based on the analysis of water. In response to this article, the applicant, in his capacity as director of a public water company, held a press conference where he stated that the water was safe to use and that the inspector was making statements to the contrary in order to promote the interests of private companies for water supply and that he was doing it on the instructions of his political party. In 2003, the inspector pressed criminal charges for defamation and the court found the applicant guilty  and sentenced him for up to three months of imprisonment (suspended for two years). The Higher Court of Montenegro dismissed the applicant’s appeal.

The ECtHR  stated that the criminal conviction was clearly a limitation that was prescribed by law and aimed to protect a legitimate aim, and that therefore the main issue that had to be determined was whether this limitation was necessary in a democratic society. In that regard the Court emphasized “the right to impart, in good faith, information on matters of public interest even where the statements in question involved untrue and damaging statements about private individuals”. The Court found that the applicant was just responding to accusations from the article as was his duty as Director of Water Supply and Sewage Systems. Further, the Court stressed the fact that the critique the applicant made was towards the Inspector was with regard to his duty and function, and not his personal life. Finally the Court considered the penalty (suspended imprisonment up to 3 months) disproportionate and too harsh, given the global trend to forbid penalising defamation with imprisonment.

Given the above, the Court concluded that the criminal conviction of Applicants was not a necessary interference with his freedom of expression under Article 10(2) of the European Convention on Human Rights.


Facts

The present case arises out of the applicant’s criminal conviction for the statements that he made in a newspaper article regarding the quality of water in Herceg Novi. The applicant made the statements in his capacity as the director of a public corporation called “The Water Supply and Sewage Systems”.

In 2003, a Montenegro daily newspapers published an article, stating that the water in Herceg Novi was full of bacteria. The article was written based on the statements of the water inspector who claimed that his allegations were based on the analysis of water. In response to this article, the applicant, in his capacity as a director, held a press conference where he stated that the water was safe to use and that the inspector was making statements to the contrary in order to promote the interests of other private companies for water supply and that he was doing it on the instructions of his political party.

In 2003, the inspector pressed criminal charges for defamation and the court found the applicant guilty  and sentenced him for up to three months of imprisonment (suspended for two years). The court explained that the statement that the inspector was doing this in the interest of private companies and on the order of his political party, was clearly defamatory since it was not supported by the facts and it could not be said that it was a value judgement. The applicant appealed and the Higher Court of Montenegro confirmed the lower court judgement.

Following the independence of Montenegro, in 2006, the applicant filed a complaint in the European Court of Human Rights (ECtHR) against the government of Serbia and government of Montenegro, on the ground of violation of Article 10 ECHR.


Decision Overview

The European Court of Human Rights unanimously rendered its judgement.

As for the procedural issues, the Court declared the case admissible only in the application against Montenegro, since the whole criminal procedure was carried out in Montenegro. As such, the application against Serbia was dismissed.

With regards to the merits, the Government declared firstly, that the statement that the applicant made was factual and could therefore be proven. Second, the applicant abused his right to free expression by trying to focus the discussion on the inspector and present him as corrupt. Further, the Government claimed that based on the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters all information about prevention or sanitation or harm that can be caused to the public health has to be made available to the public. Finally the Government stated that the criminal penalty was proportional to the protection of the legitimate aim.

The applicant submitted his arguments too late, therefore his arguments were not within the official records of this case.

At the outset the Court stated that this criminal conviction was clearly a limitation that was prescribed by law and aimed to protect a legitimate aim, and that therefore the main issue that had to be determined was whether this limitation was necessary in a democratic society. In that regard the Court emphasized that “the right to impart, in good faith, information on matters of public interest even where the statements in question involved untrue and damaging statements about private individuals” [para. 37].

The Court found that the applicant was just responding to the accusations from the article. Since he was the Director of Water Supply and Sewage Systems, it was his duty to do so and to inform the public that the water is safe for use. Hence, the statements (even if they are factual statements) are not unfounded, but rather it is considered a rough discussion about the issues of public importance. Further, the Court stressed the fact that the critique the applicant made was towards the Inspector was with regards to his duty and function, and not the Inspector’s private life. Finally the Court considered the penalty (suspended imprisonment up to 3 months) disproportionate and too harsh, given the global trend to forbid penalising defamation with imprisonment.

Given the above, the Court concluded that the criminal conviction of Applicants was not a necessary interference with his freedom of expression under Article 10(2) of the European Convention on Human Rights.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The decision confirms the long standing position of the European Court of Human Rights that the government’s interference with free speech is specially limited when the speech concerns a matter of public debate, even if it offends or insults a public authority. The Court also emphasized that imprisonment as a penalty for defamation is not proportionate and acceptable sanction.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision is binding upon the parties involved. It also establishes a persuasive precedent for international and regional human rights mechanisms.

Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

Given the fact that generally all international instruments aimed to the protection of human rights have similar provisions, the decisions of the ECtHR even though they do not have direct application of interpretation of these instruments, have significant value as a guidance in interpretation of them, in order to provide the highest level of protection of human rights.

Official Case Documents

Official Case Documents:


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