Global Freedom of Expression

Español

Softić v. Montenegro (Constitutional Court)

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    November 29, 2017
  • Outcome
    Monetary Damages / Fines
  • Case Number
    U-III no.6/16
  • Region & Country
    Montenegro, Europe and Central Asia
  • Judicial Body
    Constitutional Court
  • Type of Law
    Constitutional Law
  • Themes
    Violence against Speakers / Impunity

Content Attribution Policy

Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

The Constitutional Court of Montenegro held that the right to life of an investigative journalist, Tufik Softić, had been violated by the Montenegrin authorities’ failure to conduct a proper and timely investigation into violent attacks against him. In 2007, Mr. Softić was brutally beaten by two masked men with baseball bats. In 2013, he was targeted again after an explosive device was planted outside his home. These attacks were carried out at a time when he was investigating criminal activities. The Constitutional Court of Montenegro, for the first time, recognized that it had jurisdiction to award damages for the moral harm caused by a violation of human rights. The Constitutional Court of Montenegro quoted extensively from the case law of the European Court of Human Rights, noting that the authorities were under a positive obligation to carry out an independent, thorough, timely and open investigation into murders or attempted murders. The Constitutional Court concluded that, on this occasion, this obligation had not been met and awarded Mr. Softić 7,000 Euros for the violation of his right to life.


Facts

In early November 2007, investigative journalist Tufik Softić was brutally beaten by two masked men with baseball bats outside his family home. Mr. Softić suffered life-threatening injuries after the attack and was brought to hospital. At the time of the attack, Mr. Softić was employed as a reporter for Radio Berane and a correspondent for the daily newspaper Republika. He had been reporting on drug trafficking in the northern part of Montenegro. Despite the grave nature of the attack, the authorities failed to conduct any meaningful investigation over the next seven years (pre-investigation stage) and the case was never brought before the courts.

It was not until seven years later, in 2014, that Mr. Softić was heard by the state prosecutor for the first time. A criminal investigation was opened, but it was shelved a year and three months later due to a lack of evidence. No relevant activities were undertaken during the pre-investigation stage and no meaningful activities took place during the following periods of the investigation: from October 20, 2014 to April 1, 2015, and from April 1, 2015 to October 28, 2015, when the investigation was terminated. Among other things, the state prosecutor failed to order the investigating judge to search apartments, facilities, vehicles and persons of those Mr. Softić believed were responsible for the attack, and DNA analysis of the baseball bats that were allegedly used in the attack was only carried out in 2013 – despite the fact the bats were found in 2007.

In August 2013, Mr. Softić was attacked again. On this occasion, an explosive device was detonated in front of his home while he was inside with his family. At that time, Mr. Softić was a correspondent for the daily newspaper Vijesti and a magazine called Monitor. He had been publishing a series of articles detailing connections between criminals and the local authorities in the country. On this occasion, the investigative authorities failed to ever identify any of the perpetrators. After this second attack, in February 2014, Mr. Softić was assigned 24-hour police protection.

In January 2016, Mr. Softić filed a constitutional complaint to the Constitutional Court of Montenegro. His case was filed with the assistance of Human Rights Action and Media Legal Defence Initiative, a national and an international organization respectively that defend journalists’ legal rights. In the constitutional complaint, Mr. Softić stated that his human rights were violated by the authorities’ failure to take all necessary measures and actions in order to identify people who attempted to murder him.


Decision Overview

Judge D. Draskovic delivered the judgment on behalf of the majority of the Constitutional Court of Montenegro (Court). The judges voted unanimously in favor of finding a violation, while a majority also voted for just satisfaction.

Citing the Constitution of Montenegro, the Court noted that international laws and regulations were binding on Montenegro and that they were to be given priority in circumstances where they differed from domestic law. The Court also concluded that, in accordance with the Law on the Constitutional Court of Montenegro, a person has the right to file a constitutional complaint arguing that their human rights had been violated and the Court has jurisdiction to hear such a case. The Court then concluded that Mr. Softić’s constitutional complaint was admissible because, among other things, he was a journalist who believed that the attacks against him were in relation to his writing.

The Court then went on to extensively cite case law of the European Court of Human Rights. The Court referred to cases such as Yaşa v. Turkey and Makaratzis v. Greece to conclude that there was an obligation on the authorities to conduct an efficient investigation into murders or attempted murders. It went on to cite cases such as Maslova and Nalbandov v. Russia and Mesut Deniz v. Turkey to conclude that such an investigation had to be independent, thorough, timely and open to public scrutiny. It noted that Milic and Nikezic v. Montenegro required that the investigation be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. In addition, the Court cited Kelly and Others v. the United Kingdom to find that the results of an investigation must be presented in such a way that a concerned public can be assured that the rule of law had been respected. Citing Mc Kerr v. the United Kingdom, the Court criticized the lack of timely access to the case-file that deprived Mr. Softić’s lawyer of effective participation in the investigation.

When considering the thoroughness of the investigation, the Court cited Jasar v. Former Yugoslav Republic of Macedonia to emphasize the duty that is placed on authorities to undertake all reasonable measures to secure evidence such as witness statements and forensic evidence. The Court concluded that the state prosecutors, in the present case, did not undertake all legal and reasonable steps to secure evidence. For instance, they did not take reasonable steps to prevent the escape of perpetrators or hear witnesses. The Court was also critical of the authorities for not interviewing the suspects identified by Mr. Softić, and immediately conducting DNA analysis on them and their clothing. According to the Court, all those failures pointed to the inadequacy of the investigation, as the competent authorities did not take all measures that could have led them to the perpetrators.

The Court found that Mr. Softić’s right to life under Article 2 of the European Convention on Human Rights had been violated. The Court also decided to award him just satisfaction in the amount of 7,000 Euros.


Decision Direction

Quick Info

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

Expands Expression

This decision expands expression by recognizing that the Montenegrin authorities are under a positive obligation to investigate murders and attempted murders of journalists. The decision relies heavily on jurisprudence from the European Court of Human Rights to conclude that a murder or attempted murder of a journalist must be followed by an independent, thorough, and prompt investigation that is open to public scrutiny. This decision is particularly pertinent to Montenegro, where most attacks on journalists are treated with impunity. This case is also significant as it is the first time ever that the Constitutional Court of Montenegro decided to award just compensation for a human rights violation. Thus, providing a forum for individuals to seek redress for violations of their human rights, including their right to freedom of expression.

Global Perspective

Quick Info

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

Related International and/or regional laws

  • ECHR, art. 2
  • ECHR, art. 3
  • ECHR, Protocol No. 1, art. 1
  • ECtHR, Gongadze v. Ukraine, App. No. 34056/02 (2005)
  • ECtHR, Oğur v. Turkey [GC], App. No. 21594/93 (1999)
  • ECtHR, Selmouni v. France [GC], App. no. 25803/94 (1999)

    p. 74, 75

  • ECtHR, Akdivar v. Turkey, App. No. 21893/93 (1996)
  • ECtHR, Makaratzis v. Greece, App. No. 50385/99 (2004)
  • ECtHR, Jasar v. the former Yugoslav Republic of Macedonia, App. No. 69908/01 (2007)

    p. 56

  • ECtHR, McKerr v. United Kingdom (dec.), App. No. 28883/95 (2001)

    p. 115

  • ECtHR, Yaşa v.Turkey, No. 22495/93 (1998)
  • ECtHR, Juralic v. Croatia, No. 20106/06 (2011)
  • ECtHR, Cardot v. France, No. 11069/84 (1991)

    p. 34

  • ECtHR, Ihan v. Turkey [GC], No 22277/93, ECHR 2000-VII (2000)
  • ECtHR, Maslova and Nalbandov v. Russia, No. 839/02 (2008)

    p. 91

  • ECtHR, Mesut Deniz v. Turkey, No. 36716/07 (2013)

    p. 52

  • ECtHR, Milic and Nikezic v. Montenegro, No. 54999/10 and 10609/11 (2015)
  • ECtHR, Kelly and Others v. United Kingdom, No. 30054/96 (2001)
  • ECtHR, Hugh Jordan v. United Kingdom, No. 24746/94 (2001)
  • ECtHR, Skendzic and Crznaric v. Croatia 16212/08 (2011)

National standards, law or jurisprudence

  • Montenegro, Constitution Oct. 19, 2007, art. 9

    art. 68, art.75, art. 76, art. 20, art. 143, art. 287, art. 290, art. 148, and art. 83

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.

Official Case Documents

Reports, Analysis, and News Articles:


Attachments:

Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback