Broadcasting company B92
European Court of Human Rights (hereinafter: the Court)is On September 5, 2023, he announced the verdict in the caseRDP B92 against Serbiaby which he established a violation of freedom of expression from Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention).
The verdict was passed unanimouslyL o The evening from the7 judgea.
The case relates 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 vaccineAH1N1 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 floorcarrier. The applicant based his reporting on the note he received from the police officers conducting the investigation and there was no doubt about its credibility. The language used by the applicant in reporting was appropriate and the applicant invited all parties to present their version of events.
The court found that, on the whole, the applicant acted in good faith and with the care expected of responsible journalism.
Therefore, the Court found that the applicant's right from Article 10 of the Convention was violated, because it assessed that the domestic courts exceeded the narrow field of assessment given to them by limiting the discussion on 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.
THE CIRCUMSTANCES CASES
The applicant (hereinafter: the applicant) is a company from Serbia, a media company that is the owner of the television channel TV B92 and the internet portalB92.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 vaccineAH1N1 in 2009. During the investigation, the editor-in-chief of the applicant's news program received "official note" no. 14/11, prepared by the Department for the fight against corruption (OBPK) on September 13, 2011.
In that note, the view of the case of the OBPK official was presented, that it exists 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 the assistant of the Minister of Health, in connection with 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 considered 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 in 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, TV B92 channel aired several times the research series "Insider - buying and selling health" related to vaccine procurementAH1N1 2009, while in connection with that onB92.net several journalistic articles published in electronic form: "Insider - selective justice", "Ministry reacts to Insider" and others. On those occasions, the applicant repeated the allegations from the "official note", highlighting the name and photo of Z.P. and speculated that some persons, including Z.P, escaped criminal responsibility because of 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 the 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 AND THE PROCEDURE BEFORE THE COURT
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.
The petition was submitted to the Court on November 9, 2016.
DECISION OF THE COURT
The court first established 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 procedure in any way, i.e. that it interfered 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 verdict 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.
FAIRLY SATISFACTION (Article 41 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 eurosEUR with regard to the costs of the proceedings.