Case Summary and Outcome

The European Court of Human Rights (ECtHR) held that Serbia violated an activist’s right to freedom of expression by failing to strike a fair balance between competing rights in a defamation case. Vesna Pešić had been found liable in civil proceedings for an article criticizing Serbia’s then Minister of the Interior and she was ordered to pay damages. The Court concluded that the interference with her freedom of expression was not necessary in a democratic society, as the domestic courts did not adequately balance her right to free expression against the protection of reputation. It emphasized the heightened protection afforded to political speech and matters of public interest, finding that the sanction imposed was disproportionate and had a chilling effect on freedom of expression.

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Facts

Ms. Vesna Pešić is a Serbian national, former politician, and long-standing political activist. On 13 May 2016, she published an article titled “Adding Salt (Dosoljavanje)” on the website of the citizens’ association Peščanik. The article concerned events that took place in the Savamala district of Belgrade on 25 April 2016, where several structures were demolished during the night by unidentified individuals using heavy machinery. During the operation, several individuals present at the scene were unlawfully detained and later released. These individuals contacted the police, who did not respond or go to the scene.

On 12 May 2016, the then Minister of the Interior, N.S., made a public statement regarding these events, explaining, inter alia, that the police had not intervened due to safety concerns, including risks posed by electrical hazards. In her article published the following day, Pešić criticized the Minister’s statements, using expressions such as “stupid” and “the most stupid,” and questioned the authorities’ conduct regarding the demolitions and the lack of police intervention.

On 27 July 2016, N.S. brought a civil claim before the Belgrade High Court against Pešić, the association Peščanik, and its editors-in-chief, S.L. and S.V., alleging mental distress caused by an attack on his honor and reputation and seeking 200,000 Serbian dinars (RSD) in compensation for non‑pecuniary damage.

On 10 July 2018, the Belgrade High Court ruled in favor of the plaintiff, N.S, finding that the applicant’s statements exceeded the permissible limits of acceptable criticism and constituted a personal insult. The court further held that the article did not contribute to public debate but was aimed at denigrating the plaintiff,  attacking his dignity, reputation, and honour, thereby causing him mental distress. Accordingly, it ordered the defendants to jointly pay 200,000 Serbian dinars (RSD) in damages, as well as costs and expenses.

Pešić appealed the judgment relying on Article 10 of the European Convention on Human Rights (ECHR). On 17 October 2018, the Belgrade Court of Appeal rejected the appeal and upheld the High Court’s decision, while reducing the amount of damages awarded. In its reasoning, the Court of Appeal emphasized that “not all manners of conveying ideas and opinions fall within the scope of freedom of expression, as freedom of expression cannot contradict its own purpose.” [para. 12] It further noted that Pešić’s article did not contribute to public debate on the matter in question or sought to address a particular issue; rather, its intent appeared to have been solely to offend N.S. Ultimately, the Court of Appeal concluded that while value judgments were generally permitted, value judgments that were defamatory in nature and were not in the public interest were impermissible.

On 5 December 2018, Pešić lodged an appeal on points of law before the Supreme Court of Cassation of Serbia, which was dismissed on 21 March 2019 on the ground that she lacked standing to bring such an appeal. On 20 December 2018, she also filed a constitutional appeal before the Constitutional Court of Serbia, which was rejected on 4 June 2020. The Constitutional Court held that the complaint did not present valid constitutional arguments but rather sought a reassessment of the legality of the lower courts’ decisions, which was beyond its jurisdiction as a constitutional body.

Following the exhaustion of domestic remedies, Pešić lodged an application before the European Court of Human Rights (ECtHR), alleging that her conviction constituted an unjustified interference with her rights under Article 10 of the ECHR.

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Decision Overview

The judgment was delivered by the Third Chamber of the European Court of Human Rights, with Judge Ioannis Ktistakis as president of the Court. The central issue before the Court was whether ordering the applicant to pay damages for an article criticizing the then Minister of the Interior constituted a violation of her right to freedom of expression under Article 10 of the ECHR.

Pešić argued that the order to pay damages, after the publication of her allegedly insulting article, constituted a clear interference with her freedom of expression as guaranteed under Article 10 of the ECHR. While acknowledging that the judgment pursued the legitimate aim of safeguarding the rights of others, the applicant submitted that the damages imposed were nevertheless disproportionate. In particular, she argued that the domestic courts also failed to strike a proper balance between her right to freely express an opinion and N.S.’s right to his dignity as a public official—who, by virtue of his position, should have been expected to tolerate a higher degree of criticism of his professional conduct.

The Serbian Government did not contest that there had been an interference with Pešić’s right to freedom of expression. However, this interference was, according to the defendant, lawful under the Obligations Act and pursued the legitimate aim of protecting N.S.’s reputation. It further added that the applicant’s article did not contribute to public debate, that her language amounted to personal insults rather than legitimate criticism, and that the damages awarded were proportionate and not excessive.

At the outset of its analysis, the Court opined that the applicant’s conviction constituted an interference with her right to freedom of expression. It then examined whether this interference was justified under Article 10(2) ECHR—namely, whether it was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society.

In its assessment, the Court considered that the interference was prescribed by law, as it was based on the relevant provisions on liability from the Obligations Act, and pursued the legitimate aim of protecting the reputation or rights of others.

The central question for the ECtHR was, therefore, whether the interference was necessary in a democratic society. According to the Court, in order to fulfill its positive obligation to safeguard one person’s rights under Article 8 of the ECHR (right to privacy), the State may have to restrict to some extent the rights secured under Article 10 of another person. When assessing such restrictions, the Court examines whether they are necessary in a democratic society by determining whether domestic authorities struck a fair and proportionate balance between these competing rights. Hence, the Court applied, its established criteria: whether the statements contributed to a debate of public interest; the degree of notoriety of the person affected; the content, form, and consequences of the publication; and the nature and severity of the penalty imposed.

• Contribution to a debate of public interest

The Court argued that Pešić’s article concerned a matter of significant public interest—namely, the conduct of the police and statements made by the Minister of the Interior regarding a controversial demolition incident. It emphasized that such matters warrant a high level of protection, with only a narrow margin of appreciation afforded to the State for restrictions.

• Status of the person concerned

The ECtHR reiterated that public officials are subject to wider limits of acceptable criticism when compared to private individuals. The official in question was acting in a public capacity and was therefore expected to tolerate a higher degree of scrutiny.

• Nature of the statements

The Court disagreed with the domestic courts’ classification of the expressions as purely insulting. It held that the impugned statements constituted value judgments rather than statements of fact, noting that “journalistic freedom allows for some exaggeration, provocation, or immoderate statements.” [para. 54] Although the language used could be seen as insulting, it reflected the applicant’s subjective assessment of the Minister’s actions and statements.

The ECtHR further emphasized that the applicant’s criticism was not arbitrary or gratuitous, but directly linked to the Minister’s public statements and the broader issue of public accountability. It noted that Pešić “took reasonable care to articulate clearly”  her criticism and that her statements were part of a wider discourse on matters of public concern.

• Proportionality of the sanction

While the sanction imposed was civil—rather than criminal—and relatively modest, the Court stressed that this did not remedy the domestic courts’ failure to provide “relevant and sufficient reasons” to justify their decisions on an “acceptable assessment of the facts.” [para. 56] Moreover, the ECtHR considered that the Serbian courts failed to conduct a proper balancing exercise between the competing rights under Articles 10 and 8 of the ECHR, as they did not sufficiently consider the public-interest nature of the statements or the applicant’s role in contributing to public debate.

In light of these arguments, the Court concluded that Serbia violated Pešić’s right to freedom of expression under Article 10 of the ECHR. Since the applicant did not submit a request for satisfaction, the ECtHR did not award any sum in favor of Pešić.

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