Judgement in favour of the media

Milivoj Djilas

MON, 28 FEB 2000

Zagreb, February 15, 2000 - It seems that some new winds have started blowing in the Croatian judiciary with the change of power. Ministers and tycoons have been put behind bars because of their criminal activities and the court denied them bail. At one of its first sessions after the new authorities came into power, the Constitutional Court accepted the charges pressed by the weekly "Feral Tribune" and revoked some restrictive provisions from the Law on Public Information. Namely, the following five provisions of Article 25 of the Law on Public Information have been repealed: the provision according to which indemnification disputes against newspaper publishers were settled in summary proceedings; the provision prescribing that the first appearance in court for the main hearing of such cases had to be made within 30 days as of the date charges were filed before the court; and the one according which the court of second instance was under obligation to decide on the appeal against a ruling of the first-instance court within thirty days as of the date of appeal.

The Constitutional Court took account of the opinion of the plaintiff "Feral Tribune" and its attorney, Vesna Alaburic, and repealed the provision according to which new facts could be presented and new evidence submitted in an appeal against a ruling of the first-instance court only if the appellant assured the court that, through no fault of his own, he was unable to present, i.e. submit them before the closing of the main hearing. And finally, the Court also accepted a petition against the fifth provision of the said Article according to which, if necessary, President of the panel of the first-instance court could, on his own or at the request of the reporting judge, carry out an investigation in order to verify the truthfulness of the allegations of the appellant from the previous paragraph.

In other words, three and a half years since the Law on Public Information came into force and two years after "Feral Tribune" filed a lawsuit before the Constitutional Court, i.e. requested the Court to determine whether provisions according to which hearings in cases against newspaper publishers were held in summary proceedings were constitutional, because of which defendants in such proceedings were placed in an extremely unfavourable position, the Constitutional Court finally decided to revoke these provisions and thus, at least partially, make it easier for the newspaper publishers in Croatia, who were probably never in their history in such a difficult position as they are now.

Explaining its decision, the Constitutional Court stated that the repealed norms did not give enough time to defendants to prepare for the hearing because of which they were in an inequitable position vis-ŗ-vis plaintiffs. Apart from that, these decisions did not take account of how judicial proceedings truly look like in reality. The Constitutional Court was of the opinion that they could restrict freedom of thought and expression, especially of the press and other media. In this way, provisions restricting the constitutional right to equality before the law and in court proceedings were abolished.

However, Feral's lawsuit stayed in the Constitutional Court drawers for two years and it truly took the change of power and of Court members to have these provisions repealed. But, neither this time were judges of the Constitutional Court unanimous in their opinion.

Out of eleven judges, nine accepted this explanation, while Vice Vukojevic and Dr Petar Klaric were of the opposite opinion claiming that the shortening of the deadline for court appearance did not violate any of the constitutional rights, but that these (constitutional) rights were violated by slanderous articles in the press. Vice Vukojevic, one of the most radical veterans of the once ruling HDZ, was loudest in his protests. Vukojevic is that same man whom a Bosniac woman accused in the media of having raped her in one of the camps in which Bosniacs were captured during Croatian-Bosniac war. This former HDZ delegate, who at Parliamentary sessions told lady delegates that they would be better off if they talked less and had more babies, generally speaking a person morally unworthy of being a member of the Constitutional Court, once more revealed himself in his true light.

In contrast to him, the new President of the Constitutional Court, Dr Smiljko Sokol, who once advised Tudjman that "money was not property" so that he did not have to report it in his tax return, saw Feral's request for the determination of constitutionality of certain provisions of the Law on Public Information, as an ideal opportunity for him to prove that he has changed his not quite positive opinion of the Constitution and constitutional law, so that that Court's session was another proof that the winds have changed and have lashed former HDZ members in charge of dirty laundry.

During these three and a half years these, now invalid, provisions have given much headache to journalists and newspaper publishers. According to Vesna Alaburic, plaintiffs who demand indemnification from journalists and newspaper publishers will finally have to wait just as other plaintiffs do. The repeal of these provisions will help defendants to prepare themselves better for proceedings, since journalists often need much time to substantiate with documents the (illegal) activities they wrote about. The most trivial is the example of "Nacional", whose journalists wrote about inadequate equipment of the Dubrovnik Flight Control Service which is why the State Prosecutor's Office accused them of publishing false information which disturbed the public.

Despite the fact that the new equipment for the Dubrovnik Flight Control Service was acquired soon after the crash of the American plane with US Trade Minister, Ronald Brown, on board and after the article published in "Nacional", legal proceedings were nevertheless, instituted. Perhaps an even better is the example of Miroslav Kutle, a tycoon who was arrested today, and who is suing "Feral Tribune" for slander demanding one million kunas for damages he had allegedly suffered because its articles.

During HDZ's ten-year rule, journalists experienced a variety of repressive measures a government can use against journalists. And it tried truly everything - from physical assaults and beatings, to arson and threats of all kinds and by all means. Nevertheless, legal action seemed the most appropriate method to the previous authorities: everything looked legal, everything was based on law, while publishers' cash-boxes were emptied at a remarkable pace, and all that on account of mental anguish suffered by various state officials and marginal personalities who enjoyed their friendship. Today, the public mentions a figure of nearly one thousand court proceedings against journalists and the press - over 300 relate to alleged slander and insult and over 600 suits concerning indemnity claims against newspaper publishers. The amount demanded in all these indemnity claims exceeds DEM 30 million!

The true proportions of mental anguish suffered by these claimants become clear only when you take a look at the list of those who have suffered such anguish: former Prime Minister Zlatko Matesa and his entire Cabinet who demanded 4.6 million kunas from Davor Butkovic and "Globus"; President Tudjman's daughter Nevenka Tudjman who demanded 4 million kunas from "Feral Tribune" and later lowered the price of her sufferings to 600,000 kunas and the one million kunas claim from "Globus" to 300,000 kunas; physician Josip Husar who sued "Feral" for two million kunas, while Tomislav Mercep, commander of para-military units, among others, sued "Feral" for over 1.5 million kunas and "Globus" for 500,000 kunas; in three separate lawsuits against various media Antun Vrdoljak demanded 670,000 kunas; Mile Dedakovic Jastreb claimed 3.6 million kunas in one lawsuit; Sinisa Dvorski, who was sentenced to long-time prison for murdering a former minister, also claimed 1.8 million kunas from the media; the Cetinski family from entertainment business sued "Nacional" for 400,000 kunas and Hrvoje Sarinic "Feral" for one million kunas; Andrija Hebrang wanted 800,000 kunas and Marica Mestrovic 650,000 kunas (both from "Feral"); General Ivan Tolj and Presidentís clothing advisor Rikard Gumzej hoped to get 350,000 kunas each, district prefect Djuro Brodarac expected 750,000 and the Hague defendant Dinko Martinovic Stela 400,000...

Attorney Zeljko Olujic, HSP President Anto Djapic, General Ivan Bobetko, painter Charles Billich, HTV art editor Marija Paekic-Mikuljan, Nedeljko Mihanovic, Milivoj Kujundzic, etc. are just some names on the long list of Feral's claimants who altogether expect to get some four million German Marks. Murderers, war criminals, untalented artists, corrupt politicians, insipid rightists and incompetent tycoons - it is bad enough that journalists had to write about them, let alone pay them.

The majority of these thousand lawsuits against journalists and publishers were filed against the media that wrote critically about former authorities.

These data clearly speak of the objectives plaintiffs had in mind when they pressed charges: to destroy any critical writing, any common-sense reasoning, and especially its publication. Former authorities only allowed praise and therefore appointed all those yes-men on TV and other media. The media that did not agree to play a part in that game, ended up in court being sued by the so called private parties, who were probably only transitional HDZ members or just temporary friends of high state officials. The weekly "Globus' holds an absolute record in the number of lawsuits filed against it with 170 charges pressed against its journalists, editors and publishers. Some 80 were filed against "Feral" and as much against the youngest among influential weeklies - "Nacional".

In other words, only three out of 2,000 registered public information media account for two fifths of all charges pressed against the media and journalists.

Vesna Alaburic warned that the ruling of the Constitutional Court is just a first step in changing a number of laws which restrict freedom of expression and put journalists in an inequitable position making it impossible for them to carry out their task - timely information of the public of all aspects of life. According to her, it is necessary to urgently start the procedure for amending the Criminal Code, which is very rigorous in its provisions concerning the freedom of speech, except for the speech of hate which totally disappeared from it with the latest amendments of this law.

Provisions which place the five majesties - Presidents of the state, Parliament, Government, Constitutional and Supreme Courts - under special protection, should undoubtedly be revoked. Feral's Executive Editor, Viktor Ivancic, and the columnist, Marinko Culic, as well as Slaven Letica, sociologist, "Globus" columnist and unfated president of the state, are still being criminally prosecuted according to these provisions. With the agreement of the late President Tudjman, the Public Prosecutor's Office pressed charges, but a legal complication ensued regarding the destiny of these charges with President Tudjman's death since the main "victim of slanders" is no longer alive. However, even the possibility of any of the three - Culic, Ivancic or Letica - ending up in prison would be an intimidating example to all other journalists.

Therefore, the new authorities will have to show more understanding for the media and urgently undertake measures for amending the Criminal Code, especially its provisions concerning the freedom of speech.

Original article