HRA appealed today to the Constitutional Court to immediately suspend execution of the judgment pursuant to which Vanja Ćalović, an human rights activist fighting corruption, must “at her own expense publish the operative part of the judgment in all electronic and printed media in Montenegro and the Republic of Serbia because she had violated personality rights of a prosecutor (Vladimir Popović) … “, in relation to her public statements that Popović posted pornographic images online. HRA calls for suspension of the execution, as such verdict is clearly disproportionate to the possible damage and, as such, contrary to the Constitution of Montenegro and the European Convention on Human Rights.
The obligation to publish the ruling “in all the media in Montenegro and Serbia” is clearly disproportionate, since all these media had not even published Vanja Ćalović’s statement. Such verdict against Ćalović imposed disproportionate punishment which can result in confiscation of her entire property, which is an obvious retaliation.
According to figures presented by HRA to the Constitutional Court, there are at least 1,500 operative media in Montenegro and Serbia, of which maybe thirty had published Ćalović’s statement.
We noticed that, in this context, the Court did not bother to specify whether “all media” implies the media that existed at the time of the statement or those established in the meantime, until the adoption of the judgment, which makes this judgment all the more arbitrary.
Those media who had previously released the statement in question have a professional obligation to also publish information on the pronouncement of the judgement free of charge, in accordance with the Code of Journalists of Montenegro, i.e. the Code of Journalists of Serbia. However, all those media who had not (1470 of them) have no such obligation, and therefore Vanja Ćalović is forced to publish a paid advertisement in all of them.
Please note that the European Court of Human Rights considers that disproportionate damages in cases of defamation and violations of the right to privacy can violate the right to freedom of expression – even when the published material is untrue and damaging to one’s reputation. Not only that there must be a relationship of proportionality between the harm caused by defamatory statements and damages awarded, it is also necessary to take into account the impact of damages on the person who caused the harm (Tolstoy Miloslavsky v. the United Kingdom; Filipović v. Serbia; Koprivica v. Montenegro). The Committee of Ministers has also established these principles in its 2004 Declaration on Freedom of Political Debate in the Media. For more details see HRA Bulletin No. XIV: THE EUROPEAN COURT OF HUMAN RIGHTS AND DAMAGE AWARDS IN DEFAMATION AND PRIVACY CASES, available at: https://www.hraction.org/wp-content/uploads/Bulletin-XIV.pdf.
In early February Vanja Ćalović filed a constitutional appeal to the Constitutional Court with a request that the Court exercises its authority and orders suspension of the enforcement of the judgment against which the appeal was lodged until the final decision. The Constitutional Court could do so if the appellant makes certain the occurrence of irreversible adverse consequences (Art. 73 of the Law on the Constitutional Court of Montenegro).
Recently, bailiff Aleksandra Tomković Vukoslavčević issued a writ of execution, ordering, same as the court verdict, that Ćalović pays a fixed advance of 25,000 euros for the publication of the verdict in all media in Montenegro and Serbia, announcing that this amount is to be increased in line with additional decisions, in case the said amount is not sufficient for the payment of ads in all Serbian and Montenegrin media. Otherwise, the bailiff may access and confiscate all of Ćalović’s property.
HRA urges the Constitutional Court to decide on the appeal lodged by Vanja Ćalović at once and in deciding specifically bear in mind Article 10 of the European Convention on Human Rights and the case law of the European Court of Human Rights in order to prevent the violation of her rights with irreversible consequences and to prevent the courts to adopt similar irrational decisions in the future, contrary to international human rights standards that are binding for Montenegro.
