The Basic Court in Podgorica ruled in favor again Velizar Kaluđerović and obliged the State of Montenegro, the Ministry of Culture and Media, to pay him 3.000 euros in non-pecuniary damages for the violation of his personal rights caused by the posts on the Udar.me portal, after the Higher Court overturned the previous verdict and sent the case back for a retrial.
The "Udar" portal appeared on the eve of the 2020 parliamentary elections, and it led a campaign against critics of the then government - journalists, politicians, civil activists, and citizens who were labeled as collaborators of foreign services and enemies of the state.
In the lawsuit and during the main hearing, Kaluđerović stated through his attorney that since July 10, 2020, an electronic publication www.udar.me was registered on the national internet domain of Montenegro (.me), whose alleged mission was "publishing closely guarded truths and secrets", but, as pointed out, it was about labeling and anonymously accusing people without citing the author, evidence and relevant sources, as well as without the possibility of hearing the foreign persons being called out.
The verdict states that on August 16, 2020, a video titled “We are publishing six names of collaborators of Serbian security services! Part Three” was published on the Udar.me portal, in which a photo of Velizar Kaluđerović appears at the 50th second mark with text below the image.
Kaluđerović was reportedly targeted under the codename "Kalimero" as an "active collaborator of the Serbian security service", with an alleged operational connection. Obren Rajković from Zemun. The Court points out that such designation of a Montenegrin citizen as an associate of a foreign intelligence service qualifies as an accusation of the criminal offense of espionage under the Criminal Code of Montenegro, which is punishable by a prison sentence of two to ten years.
The judgment recalls that, according to a letter from the National Security Agency (ANB), that institution stated that it had not undertaken measures to collect data on Kaluđerović, that it did not keep records on him, and that there were no documents drawn up on that occasion. The court concludes from this that making such accusations, without providing evidence, is likely to cause a violation of personal rights - psychological integrity, honor, reputation, and dignity.
The prosecutor stated that the content in question is still available on the YouTube platform, under the title "MEGA UDAR we publish six names of collaborators of Serbian security services! Part Three", as well as on the social network "Facebook", on the "Udar" profile.
Kaluđerović based his claim for damages on the allegations that the state's liability arises under the principle of objective liability, because the competent ministry did not supervise the implementation of Article 11 of the Media Law and did not take action to reveal the identity of the founder of the Udar.me portal, nor to initiate misdemeanor proceedings. This, according to the prosecutor, prevented him from protecting the violated right from the founder of the media, who is responsible for the published content.
In the repeated proceedings, the court, after the annulment decision of the Higher Court, heard as a witness Dritan Abazović, former Deputy Prime Minister in charge of the security sector, as well as former Director of the National Security Agency (ANB) Dejan Vukšić whose statement was read from the file of another case.
According to the verdict, Abazović testified that after he took over responsibilities in the field of security, he was informed by the then ANB leadership that there were reasonable suspicions that the Agency had a role in the work of the Udar.me portal, and that ANB resources were used to create discrediting content directed at several individuals.
He stated that the materials of the secret surveillance of the ANB ended up on the Udar.me portal, that the so-called "flash drive" with photos of the monitored persons ended up with the then director of the ANB. Dejan Peruničić, and that the material was later published on the portal. As stated in the verdict, Abazović stated that he was informed of the intention to file a criminal complaint regarding the work of the Udar.me portal by the director of the ANB, and that such a report was filed.
The court also accepted the testimony of Dejan Vukšić from the second proceeding, according to which an internal investigation at the ANB determined that high-ranking Agency officials participated in the surveillance of citizens and politicians, that the collected material ended up with Director Peruničić, and then on the Udar.me portal, and that he filed criminal charges against several former officials on suspicion of the criminal offense of disclosing classified information. The court states that the existence of this case was also confirmed by a letter from the Higher State Prosecutor's Office.
The court states that the Udar.me portal could be classified as an electronic, or internet publication, within the meaning of the Law on Electronic Media and the Law on Media, and that the founder was obliged to register and enter it in the appropriate records, so that it would be known who is behind the media.
It follows from the letter of the Ministry of Culture and Media dated 18 October 2022 that the Udar.me portal was not registered in the media register maintained by that ministry, and therefore does not have data on the founder or editor-in-chief. The Court notes that the Agency for Electronic Media and the Ministry of Culture and Media were informed about the existence of unregistered portals and that there was a public debate about the Udar.me portal, including calls to the competent authorities to determine who is behind the portal.
Based on a letter from the company doMEn doo, which manages the national domain.me, the court states that the domain udar.me was registered on July 10, 2020 with the registrar “Tucows Domains Inc”, and that the Agency for Electronic Media and the Ministry did not request information about that domain or check the content. In the court's opinion, there was a possibility to verify the identity of the registrant through the domain registry, and the defendant did not offer evidence that would remove the doubt regarding the possibility of identifying the founder of the portal.
“Considering the above, it must be considered that the defendant has not proven that it did not have objective possibilities to, in terms of exercising supervision over the application of Article 11 of the Media Law, discover, make available to the public and initiate misdemeanor proceedings against the media founder,” the verdict states. The court concludes that Kaluđerović was “objectively prevented” from obtaining protection of the violated right from the media founder, and therefore considers the state of Montenegro to be a passively legitimate subject in the dispute.
Bonus video:
