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IRIS 2017-7:1/2

European Court of Human Rights

Milisavljević v. Serbia

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Dirk Voorhoof

Human Rights Centre, Ghent University (Belgium), University of Copenhagen (Denmark), Legal Human Academy and member of the Executive Board of the European Centre for Press and Media Freedom (ECPMF, Germany)

The European Court of Human Rights (ECtHR) has recently found that the Republic of Serbia has acted in breach of the right to freedom of expression by convicting a journalist for insult of a well-known human rights activist. The ECtHR emphasises that criminal prosecution for insult of public figures is likely to deter journalists from contributing to the public discussion of issues affecting the life of the community. More than 10 years after the journalist lodged an application with the Court, the ECtHR came unanimously to the conclusion that the Serbian authorities’ reaction to the journalist’s article was disproportionate to the legitimate aim of protecting the reputation of others, and was therefore not necessary in a democratic society, within the meaning of Article 10 (2) of the European Convention on Human Rights (ECHR).

The applicant is Ljiljana Milisavljević, who was a journalist employed at Politika, a major Serbian daily newspaper. In September 2003, Milisavljević wrote an article in Politika about Nataša Kandić, a Serbian human rights activist primarily known for her activities in investigating crimes committed during the armed conflicts in the former Yugoslavia. Kandić also advocated for full cooperation of the Yugoslav, and later Serbian authorities with the International Criminal Tribunal for the former Yugoslavia (ICTY), a highly controversial issue at that time in Serbia. A few weeks after the publication of the article Kandić started a private prosecution against Milisavljević. She claimed that the article had been written with the intent of belittling her in the eyes of the public, to present her as a traitor to Serbian interests and as a “paid servant of foreign interests and a prostitute who sells herself for money”.

The First Municipal Court in Belgrade found that Milisavljević had indeed insulted Kandić by writing that “she has been called a witch and a prostitute”. The court established that although the impugned phrase had been previously published in another article by another author in a different magazine, Milisavljević had not put it in quotation marks which meant that she agreed with it, thus expressing her opinion, with the intention of insulting Kandić. In view of no aggravating circumstances and a number of mitigating ones, no prison sentence or fines were imposed: the court only gave Milisavljević a judicial warning. This judgment was confirmed by the court of appeal, while in separate proceedings Milisavljević was ordered to pay Kandić approximately EUR 386 in respect of costs and expenses.

In 2006, Milisavljević lodged a complaint with the ECtHR, arguing that her right to freedom of expression as a journalist had been violated by the conviction for criminal insult. She also submitted that she had been later discharged from Politika and that her conviction appeared to have been the cause thereof, while her conviction also represented a threat and warning to all Serbian journalists. In determining whether the interference with the journalist’s freedom of expression was necessary in a democratic society in the terms of Article 10 (2) ECHR, the Court applied the relevant considerations of (a) whether the article contributed to a debate of general interest; (b) how well known the person concerned was and what the subject was of the report; (c) the conduct of the person concerned prior to publication of the article; (d) the method of obtaining the information and its veracity; (e) the content, form, and consequences of the publication; and (f) the severity of the sanction imposed. When examining the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the ECtHR has to verify whether the domestic authorities struck a fair balance between the competing rights and values.

While there was no doubt that the article was published in the context of a debate on matters of public interest, the ECtHR further observed that the applicant is a journalist and in that capacity her task was to write an article about Kandić, a well-known human rights activist and undeniably a public figure. The crucial question was to determine what the impact was of the allegation that Kandić had been called “a witch and a prostitute”. The ECtHR considered that the impugned words are offensive, but that it is clear from the formulation of the sentence that this is how Kandić was perceived by others, not by Milisavljević herself. It reiterated that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions, and ideas.

According to the ECtHR, the domestic courts also failed to make any balancing exercise whatsoever between Kandić’s reputation and Milisavljević’s freedom of expression, also referring to the latter’s “duty, as a journalist, to impart information of general interest”. The Serbian courts made no reference to the overall context of the text and the circumstances under which it was written, as their findings were rather limited to the fact that the impugned words were not put in quotation marks. In the ECtHR’s view this amounted to a “terse and undeveloped reasoning” at the domestic level, which is in itself problematic “as it rendered any defence raised by the applicant devoid of any practical effect”. The ECtHR found that the impugned article offered both positive and negative views about Kandić, and it considered that the impugned words could not be understood as a gratuitous personal attack on, or insult to, Kandić. The article did not refer to her private or family life, but showed how she was perceived professionally, as a human rights activist and a public figure. That being so, the ECtHR considered that she inevitably and knowingly exposed herself to public scrutiny, and should therefore have displayed a greater degree of tolerance than an ordinary private individual.

With regard the proportionality of the interference, the ECtHR disagreed with the Serbian Government’s argument that the journalist’s sentence was lenient: what matters was not that Milisavljević was “only” issued a judicial warning, but that she was convicted for an insult at all. The ECtHR emphasised that “irrespective of the severity of the penalty which is liable to be imposed, a recourse to the criminal prosecution of journalists for purported insults, with the attendant risk of a criminal conviction and a criminal penalty, for criticising a public figure in a manner which can be regarded as personally insulting, is likely to deter journalists from contributing to the public discussion of issues affecting the life of the community”. On the basis of all these considerations, the ECtHR concluded that there has been a violation of Article 10 ECHR.

Judgment by the European Court of Human Rights, Third Section, Milisavljević v. Serbia, Application no. 50123/06, 4 April 2017 EN