Dr Boban Batrićević cannot be held responsible for the expressed opinion

Written by: Dr. Hamdija Šarkinović, retired judge of the Constitutional Court of Montenegro

What does freedom of thought and expression entail?

Freedom of thought and expression of opinion is one of the fundamental human freedoms. A person has the right to think even when it is not guaranteed to them by the constitution, as citizens can publicly express their views on the world, their opinions on people, situations, and phenomena. Freedom of thought and expression is inherent in human nature, specific to them as psycho-physical beings, and excludes the possibility of any form of pressure on the consciousness of citizens to shape their opinions.

In addition to being a human right, it is a prerequisite and condition for a number of constitutional freedoms, among which the most immediate are freedom of speech, the press, and freedom of religion, which are forms of public expression of freedom of thought and choice. Freedom of speech means the possibility of public expression viva voce, in live speech, i.e., orally, while freedom of the press means the possibility of public speaking, or expressing one's thoughts, opinions, and views through the press and other forms of information dissemination.

Many people, including the greatest minds of humanity - Socrates, Galileo, and Giordano Bruno, fought for freedom of thought as one of the basic human rights. The essence of freedom of expression in theoretical and constitutional terms is found in the famous sentence of Galileo Galilei, who, when asked by inquisitors to renounce his knowledge that the Earth moves, replied "And yet it moves," thus accepting death and affirming freedom of expression, or the freedom of man to speak the truth. Freedom of expression means denying organized and imposed ideological, intellectual, and moral inquisition, tutoring, and command over the thoughts and personality of man. (Jovan Đorđević)

US courts have faced the issue of "political speech," protected by the guarantee of the First Amendment to the US Constitution. (The First Amendment to the US Constitution explicitly speaks of freedom of speech and of the press.) The American court made the most radical step in 1986 in the case of Texas v. Johnson, ruling that the public burning of the federal flag in the specific case constituted political speech, and thus provided protection to the perpetrator who was criminally prosecuted by the state of Texas in accordance with its laws. (Branko Smerdel)

The court treated freedom of expression as a fundamental human right, emphasizing that it is important not only as a direct right but also as a precondition for democracy and other human rights. Freedom of expression plays a central role in protecting other rights under the Convention. Without a broad guarantee of the right to freedom of expression protected by independent and impartial courts, there is no free country, nor is there democracy. This general principle is indisputable.

Freedom of expression under the European Convention on Human Rights and Fundamental Freedoms is not an absolute right, so the realization of this freedom, as it involves obligations and responsibilities, may be subject to conditions, limitations, or sanctions provided by law and necessary in a democratic society in the interests of national security, territorial integrity, or public safety, for the prevention of disorder or crime, for the protection of health or morals, reputation, or rights of others, for preventing the disclosure of confidential information, or in the interest of preserving the authority and impartiality of the judiciary.

Through the so-called justification test conducted by the European Court in assessing whether the interference of public authorities with freedom of expression is legitimate, or whether the measures limiting the enjoyment of freedom of expression are proportionate to the legitimate aim, it is most appropriate to show that the rule of law cannot be confused with mere legality of every state action.

By affirming freedom of expression as the oxygen of democracy, and the role of the media as the central nervous system in a democratic society (Hiebert, Ray Eldon, Unguruit, Donald F. Bolm, Thomas W.), legal regulation of the media has reached the opposite pole, protecting the media from unchecked state authority. The practice of courts responsible for media freedom issues, in line with European legal standards, is a very important factor in the overall freedom of the media.

International and Domestic Standards of Freedom of Thought and Expression

Freedom of expression as a guiding principle and raison d'être of the media is not just a political declaration; it is, par excellence, an international legal standard whose content is particularly defined through an extremely rich practice of the European Court of Human Rights and whose implementation in society is a prerequisite for enjoying almost all other human rights and freedoms. Montenegro is obliged to ensure and guarantee freedom of information at the level of standards contained in international human rights and freedoms documents (UN, OSCE, Council of Europe, EU), while courts and other public authorities are obliged to interpret and apply the Media Law in accordance with the principles of the European Convention on Human Rights and Fundamental Freedoms, using the case law of the European Court of Human Rights.

The Constitution of Montenegro, in Article 47, guarantees freedom of expression by speech, in writing, by picture, or in any other way, with the condition that freedom of expression can only be restricted by the right of others to dignity, reputation, and honor, and if public morality or the security of Montenegro is endangered.

Freedom of expression is one of the basic foundations of a democratic society and a prerequisite for its progress, as well as for the personal fulfillment of every individual. The right to freedom of expression is protected by Article 10 of the European Convention.The Convention also extensively defines what constitutes interference with the exercise of this right, thereby providing an extremely broad network of prima facie protection. The Court described its role in considering national restrictions on freedom of expression as follows: In exercising its supervisory powers, the Court's task is not to assume the role of domestic authorities but to review decisions made by those authorities in accordance with their powers under Article 10... In this regard, the Court must satisfy itself that domestic authorities have applied standards in line with the principles contained in Article 10 and have relied on an acceptable assessment of relevant facts. (Hertel v. Switzerland, 1998, paragraph 46.)

Practice of the Constitutional Court of Montenegro Regarding Freedom of Thought and Expression

Decisions of the Constitutional Court of Montenegro concerning freedom of expression can be divided into two groups. The first group relates to freedom of the press, which is the subject of this text, and the second to freedom of expression in judicial proceedings.

In two decisions of the Constitutional Court of Montenegro, we will show how the Constitutional Court interprets freedom of expression, and consequently, we will conclude whether Prof. Dr. BobanBatrićević violated the Constitution of Montenegro. Article 118, paragraph 2 of the Constitution of Montenegro stipulates that the court judges based on the Constitution, laws, and ratified and published international agreements, and Article 9 of the Constitution states that ratified and published international agreements and generally accepted rules of international law are an integral part of the domestic legal order, have primacy over domestic legislation, and are directly applicable when they regulate matters differently from domestic legislation.

In the case Už-III br. 87/09 of January 19, 2012, concerning the text "Dželatovšegrt" published in Monitor, with the subtitle "Emir Kusturica Orthodox Christian," which contains a series of offensive words directed at the plaintiff, whose content and title of the text grossly offend the honor and reputation of the plaintiff, because he is imputed to be "stupid, ugly, and corrupt," that he "provided an alibi for every murdered Muslim in Bosnia," that "much of what he gained is owed precisely to donkeys," "The Constitutional Court, contrary to the conclusion of these two courts, believes that the aforementioned views cannot be considered as facts whose truth or falsity could be determined in the proceedings, but rather as value judgments, and that the provision of Article 20 of the Media Law, which applies only in cases of transmitting untrue facts and not someone's value judgments, could not be applied to the specific case. The author of the text, in the specific article, in the opinion of the Constitutional Court, reacted from his point of view to political, national, religious, and historical perspectives, which the plaintiff made the subject of public debate through previous media statements, or that the professional activities of the plaintiff were also commented on through his political and religious views."

In the case Už-III br 178/14, of December 25, 2017, Milović v. Constitutional Court, the Subsidiary Authority for Misdemeanors in Podgorica found that all elements of the offense established in Article 22 of the Law on Public Order and Peace were fulfilled in the actions of the accused and fined him with a fine of €600.

In particular, on July 12, 2012, during a performance held by the Network for the Affirmation of the Non-Governmental Sector, as an activist of the said non-governmental organization, directly in front of the building housing the Constitutional Court of Montenegro, while a session was in progress, the accused made the designation of the state organ unsuitable for use by placing a self-adhesive paper over the sign or board "Constitutional Court of Montenegro," on which was written "Constitutional Court of the First Family."The European Court of Human Rights has established a hierarchy of values protected by Article 10 of the European Convention, providing different levels of protection to various categories of expression. Within this hierarchy, comments on public issues made by public figures or media represent the most protected form of freedom of expression. As the court often states, freedom of expression guaranteed by Article 10 of the European Convention represents one of the essential foundations of a democratic society, and according to paragraph 2, it applies not only to "information" or "ideas" that are accepted or considered offensive but also to what offends, shocks, or disturbs (see European Court of Human Rights, Hrico v. Slovakia, judgment of July 20, 2004, application number 49418/99, paragraph 40).

In accordance with paragraph 2 of Article 10 of the European Convention, the authorities may interfere with the exercise of freedom of expression only if three cumulative conditions are met: a) interference is prescribed by law, b) interference aims to protect one or more specified interests or values, and c) interference is necessary in a democratic society. Courts must follow these three conditions when considering and deciding on cases concerning freedom of expression.

The Constitutional Court notes that the Subsidiary Authority for Misdemeanors in Podgorica dealt with freedom of expression, but insufficiently, as it did not apply the proportionality test in the specific case. The reasons given by the courts in the contested decisions, in the opinion of the Constitutional Court, cannot be considered relevant and sufficient, within the meaning of Article 10 of the European Convention, which implies that there was no "pressing social need" to restrict the freedom of expression of the applicant in this way, in order to protect the integrity of the institution. Moreover, the contested decisions did not achieve a fair balance in protecting the two opposing values – the freedom of expression of the applicant, on the one hand, and the right of the state institution to protect its integrity, on the other hand. Based on the reasons stated, the Constitutional Court considers that the "interference" with the applicant's right to freedom of expression was not "necessary in a democratic society," and that the contested decisions violated the rights of the applicant under Article 47 of the Constitution of Montenegro and Article 10 of the European Convention, so it was decided as stated in the conclusion.

In a democratic state, no one can be held accountable for expressing their opinions

In transitional countries, where memories of severe penalties for any mockery of authorities still linger (Article 133 of the Criminal Code was just the tip of the iceberg, and misdemeanor courts and prosecutors were in charge of jokers), this is considered an extremely important expression of the society's democratic nature. No government likes satire, but a democratic government sees it as a necessary correction of its behavior in the eyes of the public. Freedom of expression also protects those who wish to draw attention to the seriousness of certain issues by mocking responses, ministers, generals, and the government, as well as church dignitaries and the church. Those who invoke the freedom of thought and expression are protected from discrimination because everyone enjoys rights guaranteed by the Constitution regardless of their "…nationality" (Article 8 of the Constitution).

Constitutional protection of freedom of speech, which has evolved into freedom of thought and expression in the media today, emerged as a guarantee for those who think differently from the government or differently from the majority of their fellow citizens. It is the foundation of a democratic political system and must therefore be protected even in cases where we deeply disagree with the speaker and their opinions (François Marie Arouet Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.") The fate of regimes that stifled freedom of speech and were therefore unable to perceive the state of their own public affairs demonstrates this best. Humor, satire, and the right to mock and ridicule those in power are essential parts of democracy. American courts established standards in the mid-20th century according to which officials enjoy less privacy protection than ordinary citizens.

Freedom of thought is the foundation of every democratic socio-political system and does not mean the individual's freedom to think whatever they want and not communicate that opinion to anyone based on the principle that no one can be held accountable for their secret thoughts (cogitationespoenum nemo patitur), but rather includes the freedom to express thoughts. Individual rights are not absolute because they are subject to limitations that necessarily arise from the fact of our common life in a certain space, the equal rights of other individuals, and the interests of the community in which we live. Supreme Court Justice Oliver Wendell Holmes expressed this issue as follows: "It is true that the First Amendment of the United States protects freedom of speech, but undoubtedly it does not protect someone who suddenly shouts 'Fire!' in a crowded and darkened theater for no reason during a performance." Or, on another occasion, even more wittily: "My right to swing my fist ends where the other man's nose begins."

As a principle, the protection provided by Article 10 of the European Convention applies to all expressions regardless of their content, disseminated by individuals, groups, or types of media. The only limitations concern, in accordance with Article 17, the dissemination of ideas promoting racism and Nazi ideology, inciting hatred and racial discrimination. Abuse of freedom of expression undermines the honor and reputation of the injured party, their human dignity, private or family life, and constitutes an impermissible interference, compromising freedom of expression and undermining its significance in a democratic society. An indispensable part of Montenegro's legal tradition is established by Article 1000 of the General Property Law for the Principality of Montenegro from 1888 (you cannot use your rights to the detriment or annoyance of others), thereby introducing the principle of prohibition of harassment into Montenegrin legal culture.

Based on the above, it follows that Prof. Dr. BobanBatrićević, in his column where he emphasized "that the priests of the Serbian Church do not preach Christ's faith but spread hatred and Serbian nationalism," did not violate the provisions of Article 67 of the Constitution of Montenegro and Article 10 of the European Convention on Human Rights and Fundamental Freedoms, as Montenegro is defined in Article 1 of the Constitution, among other things, as a democratic state. Namely, the practice of the Constitutional Court of Montenegro, harmonized with the practice of the European Court of Human Rights, will be a challenge for the regular courts in the coming period, which in their previous practice in the field of freedom of expression interpreted the lack of distinction between expressing value judgments and factual assertions, or expressing opinions as statements that do not contain factual connotations and for which it could not be proven that they are untrue (value judgment) and stylization that can accompany opinion through rhetoric, irony, or satire, compared to expressing judgments.