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Tešić v. Serbia

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    May 11, 2014
  • Outcome
    ECtHR, Article 10 Violation
  • Case Number
    4678/07 & 50591/12
  • Region & Country
    Serbia, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    Civil Law, Criminal Law, International/Regional Human Rights Law
  • Themes
    Defamation / Reputation
  • Tags
    Public Interest, Human Rights, Criminal Defamation

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights held that the severe and disproportional civil penalties against the journalist’s alleged defamatory statement amounted to an inference with the right to freedom of expression protected under Article 10 of the European Convention on Human Rights. 

 

 

 


Facts

In December 2002, the Applicant published an article in a daily newspaper in Novi Sad, Serbia, alleging that her former lawyer had deliberately failed to properly represent her in a civil lawsuit.

The lawyer subsequently sued the Applicant for criminal defamation.

In April 2005, the Novi Sad Municipal Court found the Applicant guilty of criminal defamation and sentenced her to six months of imprisonment.  It held that the article lacked any factual basis and was solely published to harm the lawyer’s reputation, who was regarded as a highly respected legal practitioner in the community and a former judge .

In December 2006, the lawyer brought a separate civil defamation action against the Applicant for mental distress he suffered as a result of the publication. The court ruled partly in favor of the lawyer and ordered the Applicant to pay approximately EUR 4,900 in damages.

In November 2011, the Nova Sad Appeals Court upheld the criminal conviction.  The Applicant then filed separate appeals to the Constitutional Court of Serbia, alleging unfair criminal proceeding, disproportionate monetary award, as well as the infringement of her right to freedom of expression.  The Constitutional Court affirmed the civil judgment and declined to suspend its enforcement against the Applicant. 

The Applicant subsequently filed two separate complaints with the European Court of Human Rights against Serbia contesting the criminal conviction, as well as the civil defamation judgement. 


Decision Overview

The central issue before the Court was whether the criminal and civil defamation proceedings against the Applicant violated her right to freedom of expression protected under Article 10 of the European Convention on Human Rights.

The Court first found the Applicant’s complaint regarding the criminal defamation as inadmissible for non-exhaustion of domestic remedies on the ground that her appeal of the criminal conviction was still pending before the Constitutional Court of Serbia.

As to the civil defamation judgment, the government of Serbia argued that it was a legitimate restriction of the Applicant’s journalistic expression under the domestic law in order to protect the reputation of others. According to the government, her article did not address an issue of public importance and instead, it was the Applicant’s mere expression of dissatisfaction with her lawyer. It also argued that the Municipal Court’s monetary award was consistent with other similarly situated cases and the Applicant’s dire financial hardship and deteriorating health did not excuse her obligation to pay the damages.

On the other hand, the Applicant contended that the evidence sufficiently showed that her lawyer did not adequately represent her and it was her journalistic responsibility to publish this fact. She also stated that the enforcement proceedings amounted to an unjustified interference with her right to freedom of expression, as the government deducted the damages from her pension funds, causing extreme financial difficulties and dire health conditions.

The Court defined the freedom of expression as the right to exchange information and ideas that are not only “favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” [para. 61] According to the Court, any permissible restrictions on the right must be “construed strictly and the need for any restrictions must be established convincingly.” [para. 61] Also, sanctions imposed on an expression by domestic law, including compensatory awards must be reasonable and proportional to the resultant injuries. [para. 63]

As applied to the case, the Court found that the civil judgement and the subsequent enforcement proceedings as unnecessary in a democratic society and therefore, violated the Applicant’s right to freedom of expression. The Court did not view the article as an unfounded personal attack given that the Novi Sad police officials had found some merit in the Applicant’s allegations against her lawyer. It also held that the article involved a matter of public interest given “the role of lawyers in the proper administration of justice.” [para. 66]

In addition, the Court viewed the monetary award and subsequent enforcement proceedings as substantially severe and disproportional. It noted that the total amount of  judgment against the Applicant, which equaled more than sixty of her monthly pension income was very similar to the amount awarded against the newspaper and the province, which were more financially viable entities.

Based on the foregoing findings and after taking into account the Applicant’s financial hardship and her deteriorating health condition, the Court by 6 votes to 1 concluded that the judgment of civil defamation and subsequent enforcement proceedings violated Article 10 of the Convention. It ordered the government of Serbia to pay the Applicant EUR 5,500 in monetary damages based on the total amount of deduction from her pension, EUR 6,000 for non-monetary damages, as well as EUR 2,200 for incurred costs and expenses. 

Judge Sajo delivered the Court’s dissenting opinion. 

First, the Judge disagreed with the Court’s finding that the article concerned a matter of public interest.  The Judge stated that the important role of lawyers in administering justice was an irrelevant consideration as to whether the Applicant’s allegations against her lawyer were purely personal or not.  According to the Judge, “[t]he private interest in expressing personal discontent by disclosing false factual allegations to the general public is not a matter protected by the Convention.” [p. 21]  

Furthermore, the Judge argued that the issue of whether the award of damages against the Applicant was proportional to the injuries suffered by her lawyer was not contested in the case and that it was improper for the Court to base its decision on the Applicant’s financial hardship and medical condition in paying the award. 


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 server and disproportional sanctions for defamation may amount to a violation of Article 10 of the European Convention on Human Rights.  More importantly, the Court in this case considered the financial hardship and medical conditions of the person who made the defamatory statement as relevant in assessing the proportionality of monetary damages for defamation.  

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

  • ECHR, art. 10
  • ECtHR, Mouvement raëlien v. Switzerland, App. No. 16354/06 (2012)

    According the European Court of Human Rights, the freedom of expression “is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.”

  • ECtHR, Oberschlick v. Austria, App. No. 11662/85 (1991)

    The Court held that the freedom of expression under Article 10 of the Convention “protects not only the substance of the ideas and information expressed but also the form in which they are conveyed.”

  • ECtHR, Lingens v. Austria, App. No. 9815/82 (1986)

    According to the Court, in assessing whether a statement is a protected expression, factual statements must be distinguished from value judgments, “since the existence of facts can be demonstrated whereas the truth of value judgments is not susceptible to proof.”

  • ECtHR, Filipović v. Serbia, App. No. 27935/05 (2007)

    “The nature and severity of the sanction imposed, as well as the “relevance” and “sufficiency” of the national courts’ reasoning, are matters of particular importance in assessing the proportionality of the interference under Article 10 § 2.”

  • ECtHR, Miloslavsky v. United Kingdom, App. No. 18139/91 (1995)

    The Court found in that case that under the Convention, an award of damages for defamation must have a reasonable relationship of proportionality to the injury to reputation suffered.

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.  According to the Constitution of Serbia, the general rules of international law and international treaties that Serbia accepted are part of domestic legal system.  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.

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