Yesterday, the Constitutional Court did not accept the appeal of the former editor-in-chief of Pobjeda, Srđan Kusovac, against the verdict of the High Court, by which he was sentenced to pay 5.000 euros each to the journalists Milka Tadić Mijović and Milena Perović, due to the mental pain suffered and future, due to the series of articles in that newspaper which they insulted and which also contain hate speech.
Kusovac was legally convicted as the person responsible for the texts of the then state newspaper, which were signed by Marko Vešović and Šeki Radončić. Monitor journalists were then called scumbags, mutts, whores, professional forgers, media thugs in skirts...
The High Court concluded that the journalists' honor and reputation were violated.
Kusovec's lawyer, Nikola Martinović, filed a constitutional appeal against the decision of the High Court, requesting that the Constitutional Court cancel it, but it did not pass the three-member panel of the High Court because there was no agreement of the judges.
In order for the panel of the Constitutional Court to make a decision, it is necessary for all three judges to agree. If this does not happen, the constitutional appeal is then decided at a plenary session - of all judges.
When it will be is uncertain for now because there is no majority to decide. By law, the Constitutional Court has seven judges, but since three are retired, it works with four.
In order for the decision to be taken, it is necessary to vote by the majority of the total number of judges, i.e. four. Since after the session of the council it is clear that it does not exist, the subject of Kusovac's constitutional appeal will probably not even be on the agenda before the election of the missing judges.
Judges Budimir Šćepanović (president of the court), Miodrag Iličković and Milorad Gogić were in the council that did not make a decision. Only Šćepanović was in favor of accepting the arguments from the constitutional appeal.
Lawyer Nikola Martinović complained that the High Court did not sufficiently explain the verdict, as well as that the editor-in-chief was not responsible for the position expressed by the two authors.
Šćepanović previously, according to Vijesti's information, as a judge-rapporteur issued a decision rejecting the verdict, which he later withdrew, only to subsequently come out with a different proposal.
The texts in Pobjeda were published from September 26, 2011 to April 18, 2012, while the head of the state paper was Kusovac, who was then the spokesperson of the Government of Montenegro. During his mandate, Pojeda led a hunt against all those who were critical of the DPS government.
The compensation was supposed to be jointly paid by Kusovac and Montenegro, according to the court's decision. The first defendant - Pobjeda, has since been privatized. The higher court, which ruled on the appeal against the decision of the Basic Court, found that the first-instance court, when deciding on the amount of compensation for non-material damage, incorrectly applied substantive law to the established factual situation...
"The first-instance court correctly finds that the second defendant (Kusovac) and the third defendant (the state)... are jointly and severally liable to compensate the plaintiffs for non-material damages for mental pain suffered, due to injury to reputation... but from the content of the published texts, a tendency arises, i.e., a continuous effort to the plaintiffs are presented in a negative context and cause a negative attitude about them, their work, personalities in general, which makes the plaintiff's request to compensate them for damages justified...". The Constitution, as concluded by the High Court, stipulates that everyone has the right to equal protection of rights and freedoms, that the same act guarantees the dignity and safety, inviolability of the physical and psychological integrity of man, his privacy and personal rights...
"Article 47 of the Constitution guarantees freedom of expression... with the proviso that freedom of expression can only be limited by the other's right to dignity, reputation and honor," the verdict explains. They also referred to the European Convention for the Protection of Human Rights, which also stipulates that the used freedom of expression entails duties and responsibilities, as well as non-compliance with the Media Act...
"It was clearly established that the reporting, with the content in question, was motivated by an effort to create a negative impression on the readers and discredit the plaintiff's personality, thereby exceeding the limits of acceptable speech and reporting. In the specific case, there was an abuse of freedom of information to the detriment of the plaintiff, calling into question their moral integrity, hurting their reputation and honor, i.e. insulting their human dignity, whereby by placing insulting allegations, a situation was created to believe in the truth of something that has not been proven", it is stated in the explanation of the judgment of the High Court.
It is added that the fact that the plaintiffs are public figures does not exempt them from responsibility, because the dignity of each individual, as a natural right acquired by birth, also belongs to the plaintiffs: "By abusing the freedom of expression, the essence of this right is violated, and in this particular case it was violated to the detriment of the plaintiff balance between the protected goods - freedom of expression, on the one hand, and the plaintiff's personal rights, on the other."
The court notes that the published texts are considered examples of "exaggeration" and "provocation", which in that degree is not admissible in expression and publication in the media. "All the more if we take into account the expressions, derogatory names and qualifications that abound in the texts in question, followed by continuous vulgarity".
The judges also remind that Pobjeda then announced: "That Pobjeda should deal with them on 300 pages, that they make fun of and entertain the readers at their expense", as well as "We wrote, therefore, two hundred pages of nastiness and insults and set up a European, maybe also a world record that who knows how long it will not be broken"... "Taking into account all of the above, the compensation for non-material damages, awarded by the first-instance judgment, was assessed too low... The plaintiffs are entitled to fair financial compensation for non-material damages for the suffered and future mental pain, due to damage to reputation and honor, in the total amount of 5.000 euros each".
The plaintiffs were also awarded 3.795 euros for court costs.
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