Case Summary and Outcome

The Chamber of the Second Section of the European Court of Human Rights (ECtHR)  found no violation of the right to freedom of expression in a case concerning the failure of the State to protect journalists and activists from a smear campaign and threatening comments on the internet. The applicants protested against demolition and construction projects in Belgrade for their lack of transparency. The print and online media accused the applicants of being conspirators aiming to disrupt the state, at the behest of a western conspiracy. The prosecutor rejected the applicant’s criminal complaint on the reasoning of no substantial evidence. The ECtHR found that the prosecutor’s decision to not prosecute was not arbitrary or manifestly unreasonable. The Court decided that State didn’t breach its positive obligation to protect the applicant’s freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). Further, the Court found that the State also offered a number of other effective remedies for the protection of the applicants, which the applicants had not yet exhausted.

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Facts

The applicants, Ilir Gaši, Vukašin Obradović, Antonela Riha and Tamara Skroza are journalists and civil society activists, who often criticize the Serbian government. In 2016, they participated in the protests concerning the demolition of houses and installations in Belgrade, over the lack of transparency in the large-scale construction project in Belgrade, and changes in the management of Radio-Television Vojvodina.

Several online and printed articles criticized these protests and the role of the applicants. One daily media platform, Informer published an article with the headlines “The assassination of [the Prime Minister] begins! The EU and the USA are paying extremists to create chaos in Serbia!.” The articles mostly referred to protests as a part of actions aimed against Serbia, the Serbian Government and a ruling party, claiming that foreign states, in particular the US, financed the protests in order to destabilize Serbia and overthrow the Prime Minister. Several comments on one of the online articles labelled protesters as “domestic traitors” and “mercenaries”, “failed journalists”, “sold souls”, “western pets” (zapadnjačke šlihtare), “extremists and trash”, suggesting “that domestic traitors should be marked as such for the rest of their lives” [para. 9]. Informer’s editor-in-chief, D.V, who had been writing pejoratively about the protests before, gave a television interview making similar negative statements while explicitly referring to the first and third applicants.

The applicants lodged a criminal complaint to the prosecutor’s office for racial and other discrimination and a breach of the right to equality against four persons involved in the impugned articles. In particular they claimed the organizations had been “persecuted” for “having different political opinions” [para. 13].

The police interviewed the applicants and two persons who the applicants had accused of committing the crimes. The applicants admitted that they personally did not receive any threats but they had been commented on in an insulting and negative manner.

The prosecutor decided that there was no evidence for the criminal procedure and rejected the complaint. The Prosecutor reasoned  that there was no ground to believe that the persons in question had committed the criminal offences in the complaint or any other criminal offence which was subject to public prosecution. The applicants objected, but an Appellate Public Prosecutor’s Office upheld the Prosecutor’s decision not to prosecute. The Constitutional Court also rejected the application’s constitutional appeal. The Applicants subsequently lodged an application with the ECtHR complaining alleged breach of their freedom of expression under Article 10 of the ECHR.

Beside the legal proceedings, the applicants publicly denied all allegations against them in the articles and making negative comments towards the articles. They, additionally, criticized the Government and commented on the state of media liberties in Serbia.

The relevant documents showed that there was a certain amount of attacks on journalists in Serbia. The Freedom House in one of its reports indicated that journalists that had criticized the Government were often attacked by pro-government media outlets. The 2021 report indicated that media freedoms in Serbia were undermined, in particular by politicians. The declaration of the European Parliament indicated the same conclusions as well as the EU Report on Serbia from 2021.

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Decision Overview

The ECtHR delivered a unanimous judgment finding no violation of Article 10 of ECHR. The central issue for the ECtHR’s determination was whether the applicants’ freedom of expression protected by Article 10 of the ECHR was violated by halting the criminal procedure.

The applicants argued that their freedom of expression protected by Article 10 of the ECHR was violated. They indicated that, bearing in mind the whole context and the position of opposition media, they had a reason to fear for their lives. Smear campaigns against them and other independent journalists who held different political views than the government made them feel unsafe and had chilling effect on freedom of expression. They used the criminal complaint path instead of civil lawsuits since their intent was not to receive damages for reputation impairment but to put an end to further persecution of them as journalists and activists and to punish those responsible for such persecution. Finally, the applicants stated that the domestic authorities did not conduct an effective investigation.

The Government, on the contrary, indicated that the applicants had various other remedies at their disposal: “(a) they should have requested publication of their reply or a rectification of the published information, if necessary by addressing their complaint to the courts; (b) they should have asked the courts to establish whether publishing certain information had violated the prohibition of hate speech or the right to dignity, and they could have sought the removal of the harmful content; (c) they could have sought compensation in respect of non-pecuniary damage for a violation of their honour and reputation under the Public Information and Media Act and/or the Obligations Act; (d) they could have lodged a complaint with the Regulatory Body for Electronic Media, indicating a violation of their right to dignity and of the prohibition of hate speech; and/or (e) they could have lodged a private claim for the criminal offence of insult” [para. 65]. The Government provided various court decisions to prove the efficiency of the remedies. Moreover, the state argued that there “had been no incitement to violence, threats or physical attacks against the applicants, nor had there been any direct threats in the readers’ comments published online” [para. 66]. Hence, there was no violation of a positive state obligation in respect of freedom of expression.

The court reiterated the significance of freedom of expression as a “prerequisite of a functional democracy”. The court relied on Özgür Gündem v. Turkey,  (no. 23144/93, para. 43) and Palomo Sánchez and Others v. Spain (nos. 28955/06, para. 59, ECHR 2011) to hold that the effective exercise of the freedom of expression does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. Subsequently, to question the existence of positive obligation, the Court relied on Özgür Gündem [para. 43] to hold that a fair balance ought to be struck between the “general interest of the community” and the “individual’s interests.”  The obligation, however, must not put a disproportionate burden on authorities. Positive obligations under Article 10 of the ECHR require States to create  and  ensure a pluralistic environment, enabling public debate by all persons  to hold positions in opposition to the government and to express themselves freely (Khadija Ismayilova v. Azerbaijan, nos. 65286/13 and 57270/14, para. 158, 10 January 2019)

The Court observed that notwithstanding the threat that the applicants felt, there was no violence involved. The prosecutor’s office after receiving the complaint acted promptly and the fact that only two accused persons were interviewed by the police did not seem unreasonable or arbitrary. The Court noted that the prosecutor’s office rejected the applicants’ complaint based on the information they received and on the evidence collected.

The ECtHR further held that it is not within its jurisdiction to rule on the constituent elements under the domestic law of the offences of discrimination and violation of the right to equality, or any other offence (Fatullayev v. Azerbaijan, no. 40984/07, para. 121, 22 April 2010, and Dmitriyevskiy v. Russia, no. 42168/06, para. 102, 3 October 2017). However, it is primarily for national courts to interpret and apply domestic law (De Tommaso v. Italy [GC], no. 43395/09, para. 108, 23 February 2017)  The ECtHR relied on Kudrevičius and Others v. Lithuania [GC], no. 37553/05, para. 143, ECHR 2015, and Belkacem v. Belgium (dec.), no. 34367/14, para. 29, 27 June 2017) to identify its role i.e., to review the decisions that domestic courts deliver pursuant to their “power of appreciation” under Article 10 of the ECHR and that national authorities delivered their judgements on an “acceptable assessment” of the relevant facts. The Court proceeded by ruling that the prosecutor’s decision was based on an acceptable assessment of the relevant facts, and further that, the prosecutor went beyond to suggest that the allegations amounted to the criminal offence of insult, which was subject to private prosecution.

The European judges also highlighted the variety of remedies available at the disposal of the applicants on the violation of freedom of expression besides the criminal procedure, including civil proceedings for a violation of the prohibition of hate speech, and civil proceedings for claiming compensation. The Court supported the Government’s provided precedents concerning the same broadcasting network and hate speech issues, wherein the national courts had found violations of hate speech and awarded compensation.  The ECtHR took into consideration, the reports on the freedom of expression and safety of journalists, the reports of physical attacks and other types of alleged persecution of journalists in Serbia, and concluded that the prosecutor’s findings were not arbitrary or manifestly unreasonable and the State offered a number of other effective means for the protection of the applicants, which are still available.

In the terms of general reports indicating infringement of media liberties in Serbia, the court said that it noted such reports, but they could not affect this particular case, since the prosecutor’s decision not to prosecute was neither arbitrary nor unreasonable.

Bearing in mind the above-mentioned, the ECtHR unanimously ruled that there was no violation of a positive duty under Article 10 of the ECHR.

Justice  Pauliine Koskelo delivered  a concurring opinion, wherein she observed that the applicant’s complaint on the violation of freedom of expression went beyond mere insults and it appeared that freedom of expression was employed against the applicants with a view to suppressing their freedoms to act and express their opinions. Justice Koskelo held that the central issue was not about the state imposing sanctions, however, it was about the state’s failure to impose sanctions on other private persons stigmatizing the applicants.

Justice Koskelo reiterated the majority’s reasoning on creating a favourable environment for participation in public debate for journalists and civil society members. Justice Koskelo held that in cases where outright hate speech is not involved, actions that amount to intimidation, smear campaigns or other forms of persistent harassment aimed at others on their exercise of freedoms under Article 10 may reasonably call for a reaction, and protection of the victims, by the criminal justice system, especially where such actions take the shapes of the pattern of behaviour.

Justice Koskelo emphasized the low amount of damages awarded by domestic court and the general reports about weak media freedoms in Serbia.  She observed that the given nature of the case, required heightened scrutiny from national authorities.

Justice Koskelo concluded that it remains doubtful that the domestic authorities conducted a sufficiently thorough assessment of the applicants’ grievances in particular as regards the offence set out in Article 148 of the Criminal Code. Bearing in mind all of the above said, Justice Koskelo found no violation of Article 10 of ECHR and reasoned that the inherent limitations of the information accessible in the materials and the incomplete perspective available to the court, led to such reasoning.

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