CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 décembre 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s33C53B69 { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD2CEF84A { margin-top:18pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s9BB96641 { margin-top:36pt; margin-bottom:24pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s85D2D43C { margin-top:0pt; margin-bottom:36pt; text-align:center } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt }       SECOND SECTION Applications nos. 4678/07 and 50591/12 Sofija TEŠIĆ against Serbia (I and III) lodged on 29 December 2006 and 28 May 2012 respectively STATEMENT OF FACTS   The applicant in both cases, Ms Sofija Tešić, is a pensioner and a Serbian national, who was born in 1934 and lives in Ledinac. A.     The circumstances of the case The relevant facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The criminal case and other related proceedings On 8 April 2005 the Municipal Court in Novi Sad, acting on the basis of a private criminal action ( privatna krivična tužba ) filed on 10 March 2003, found the applicant guilty of criminal defamation ( kleveta ) and sentenced her to six months’ imprisonment, suspended for a period of two years ( uslovna osuda ; see at B.1 and B.2 below). In so doing the Municipal Court noted, inter alia , that on 12 December 2002 the applicant had given an interview to Dnevnik , a Novi Sad daily newspaper, stating that her lawyer, Mr N.B., had deliberately failed to represent her properly in a pending civil case. The applicant maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant’s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr   N.B., a highly respected member of the Novi Sad legal community and a former judge. On 11 January 2006 the District Court in Novi Sad upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court’s decision on 19 July 2006. On 16 August 2006 the applicant filed a request for the reopening of these proceedings. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant’s motion and reopened the case. The applicant personally, as well as a number of witnesses, were reheard, and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court’s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr N.B. on 14 May 2002, by 10 July 2002 the Municipal Public Prosecutor’s Office in Novi Sad had formally rejected it. On 29 November 2011 the Appeals Court in Novi Sad upheld the Municipal Court’s judgment of 25 March 2011. The applicant was served with the Appeals Court’s decision on 21 December 2011. On 19 January 2012 the applicant filed an appeal with the Constitutional Court. This appeal is still pending. 2.     The civil suit and other related proceedings On 19 December 2006 Mr N.B. filed a separate civil claim for damages with the Municipal Court in Novi Sad, alleging that he had suffered mental anguish due to the publication of the impugned article. On 31 January 2007 the Municipal Court ruled partly in favour of Mr   N.B. and ordered the applicant to pay 300,000 Serbian Dinars (“RSD”) in compensation, together with default interest plus costs in the amount of RSD 94,120, i.e. approximately 4,900 Euros (“EUR”) in all. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see at B.4 below); (b) her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr N.B. and had caused him profound mental anguish (see at B.3 below). On 16 April 2009 the District Court in Novi Sad rejected the applicant’s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court decision on 30 April 2009. The applicant could not file an appeal on points of law, revizija , with the Supreme Court in view of the amount of damages awarded. On 29 May 2009, and as supplemented on 20 November 2009 and 27   June 2011, the applicant filed an appeal with the Constitutional Court, complaining about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom , 13 July 1995, Series A no. 316 ‑ B; and Lepojić v. Serbia , no. 13909/05, 6 November 2007). The applicant, lastly, complained about the consequent danger to her life and her health, as described at A.4 below. On 27 January 2012 the Constitutional Court rejected this appeal on its merits, stating, inter alia , that the impugned decisions were adopted in accordance with the law, that they were well-reasoned, and that it was not its function to assess whether the amount of compensation awarded was disproportionate. The Constitutional Court made no mention of the applicant’s complaint concerning her medical situation. 3.     The enforcement proceedings On 13 July 2009 Mr N.B. filed a motion with the Municipal Court in Novi Sad, seeking enforcement of its judgment dated 31 January 2007. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant’s pension were to be transferred to the creditor’s bank account each month, until the sums awarded to the latter have been paid in full (see at B.5 below). The said deductions to the applicant’s monthly income began as of 8   August 2009. In May 2012 the applicant’s monthly pension was RSD 19,707, i.e. approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live. By 25 September 2012 the applicant had paid a total of RSD 364,350.90, i.e. approximately EUR 3,140. However, given the accrued and future interest, she will have to continue with the payments for another ten years (see at B.6 below). 4.     The applicant’s medical condition The applicant suffers from a number of diseases including cataracts, progressive ocular hypertension, which has allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She has also had a pacemaker installed several years ago and has suffered a stroke. The applicant maintains that she would need a minimum of RSD 5,000 for her medication monthly, i.e. approximately EUR 44, but that she can no longer afford to buy it. B.     Relevant domestic law 1.     The Criminal Code of the Republic of Serbia (Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia – OG SRS – nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89 and 21/90, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 16/90, 49/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02 and 80/02) Article 92 “Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months. If an act described in [the above] paragraph has been committed through the press, via radio or television ... [or otherwise through the mass media] ... or at a public meeting, the perpetrator shall be punished by imprisonment not exceeding one year. ... If the defendant proves his [or her] claims to be true or if he [or she] proves that there were reasonable grounds to believe in the veracity of the claims which he [or she] had made or disseminated, he [or she] shall not be punished for defamation, but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence... Whoever, in relation to another, falsely claims or disseminates claims to the effect that he [or she] has committed a crime prosecuted ex officio, shall be punished for defamation even if there were reasonable grounds to believe in their veracity, unless such claims have been made or disseminated pursuant to Article 96 § 2 of this Code. The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded.” Article 96 §§ 1 and 2 “... [No one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ... , if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...” 2.     The Criminal Code of the Federal Republic of Yugoslavia (Krivični zakon Savezne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 37/93, 24/94 and 61/01) Article 51 “... [T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment (suspended sentence) ... will ... [be sufficient to deter the offender] ... from committing any [other] criminal acts.” Article 52 § 1 “In handing down a suspended sentence, the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [specified] ... period of time which cannot be less than one or more than five years in all (period of suspension) ...” Article 53 § 4 “In deciding whether to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his [or her] conduct prior to and following the commission of the criminal act, the degree of his [or her] criminal liability, as well as other circumstances under which the act has been committed.” Article 54 §§ 1 and 2 “The court shall revoke the suspended sentence if, during the period of suspension, the convicted person commits one or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years. If, during the period of suspension, the convicted person commits one or more criminal acts and is sentenced to imprisonment for a term of less than two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ...” Article 93 § 2 “A suspended sentence shall be expunged one year following the date of expiry of the period of suspension, if the convicted person does not commit another criminal act during this time.” Article 94 § 3 “When a conviction has been expunged, information about the conviction may ... be given ... [only] ... to the courts, the public prosecution service and the police in connection with an ongoing criminal case against the person ... [concerned] ... ” 3.     The Obligations Act (Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93) Under Articles 199 and 200 , inter alia , anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 4.     The Civil Procedure Act 2004 (Zakon o parničnom postupku; published in OG RS no. 125/04) Article 13 provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed, as well as concerning the criminal liability of the person convicted. 5.     Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04) Article 156 § 1 provides, inter alia , that, as part of the enforcement procedure, up to two thirds of a debtor’s pension may be withheld. 6.     The Statutory Interest Act (Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11) Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement. Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly. COMPLAINTS 1.     Application no. 4678/07 The applicant refers to Articles 6, 10, 13 and 14 of the Convention. In substance, however, she complains about: (a) the breach of her right to freedom of expression given her criminal conviction; (b) the fairness of these proceedings prior to their reopening; and (c) the length of the same proceedings considered as a whole, i.e. both prior to and after their reopening. 2.     Application no. 50591/12 The applicant refers to Articles 2, 3, 6, 10, 13 and 14 of the Convention, as well as Article 1 of Protocol No. 1. In substance, however, she complains about: (a) the breach of her right to freedom of expression given the civil defamation judgment rendered against her; (b) the length of these proceedings alone or taken together with the proceedings before the Constitutional Court; (c) the fairness of the civil defamation proceedings; (d) the violation of her property rights given the disproportionate monthly deductions from her pension; and (e) the torture, inhuman and/or degrading treatment or punishment to which she has been subjected as a result of the said deductions, i.e. the extreme financial hardship causing her numerous health problems and endangering her very life.   A QUESTION as regards both applications 1.     Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention, in view of the final criminal and civil judgments rendered against the applicant (see, mutatis mutandis , Lepojić v. Serbia , no. 13909/05, § 77, 6 November 2007; Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004; and Tolstoy Miloslavsky v. the United Kingdom , 13 July 1995, §§ 46-51, Series A no. 316 ‑ B)? QUESTIONS as regards app. no. 4678/07 1.     Was the length of the criminal proceedings in the present case, prior to and/or after their reopening, in breach of the “reasonable time” requirement contained in Article 6 § 1 of the Convention? QUESTIONS as regards app. no. 50591/12 1.     Was the length of the proceedings before the Constitutional Court in breach of the “reasonable time” requirement contained in Article 6 § 1 of the Convention?   2.     Has the applicant been subjected to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention (see, mutatis mutandis , Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010; Larioshina v. Russia (dec.), no. 56869/00, 23 April 2002; and Tyrer v. the United Kingdom , 25 April 1978, § 30, Series A no. 26)?   3.     Has there been an interference with the applicant’s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2?