Case Summary and Outcome

The Supreme Court of Cassation of Serbia affirmed the judgment of the Court of Appeal, which found a professor (the defendant) had not committed an act of discrimination against women and LGBT persons, when he expressed his opinion on the new Law on Prevention of Domestic Violence. The Commissioner for Protection of Equality (the plaintiff) filed a lawsuit to the competent court, claiming that the professor had expressed ideas and attitudes that were disturbing and humiliating in a published article. The High Court in Novi Sad (Serbia) ruled in favor of the plaintiff finding the comments were discriminatory. The Court of Appeal overturned the High Court decision. The Supreme Court of Cassation of Serbia considered that the second-instance court had correctly concluded that the professor’s views in the contested text did not insult members of the opposite sex or persons of a different sexual orientation. The Court found he had just presented his value judgment on the quality of the Law on the Prevention of Domestic Violence, while criticizing the sexuality of the LGBT group expressed during LGBT parade.

Facts

The defendant is a professor.  After the Law on Prevention of Domestic Violence (2016) came into force, he wrote a text that was published in the media, in which he presented the weaknesses and shortcomings of the said Law in ten parts, primarily in terms of its expediency. He wrote the following:

Does the Law serve to protect the weaker persons in the family? No, it serves to protect women regardless of whether they are strong or weak, loved or unloved, nervous, musical or in a good mood, whether they have a lover or not, whether they earn money or are supported, whether they brought some property into the marriage or moved into her husband’s house, etc. If the law serves to protect the weak, then I guess it would at least mention children who are the weakest and most vulnerable to domestic violence or elderly parents… perhaps the increase in the volume of domestic violence is (partially or mostly) due to the state’s manic display of the so-called reality show programs on television channels with national coverage, in which acts of violence in relationships between people living in the same household are most directly encouraged, or police protection with a ceremonial parade of homosexuals on city streets, which openly celebrates primitive violent, and vulgar sexuality?

The Commissioner for Protection of Equality (the plaintiff) filed a claim against the defendant, arguing that the professor grossly insulted and inspired hatred towards women and the LGBT population in his text, stating that the defendant, as a university professor was obliged to take special care of his public appearances.

The court of first instance accepted the claim and determined that the professor committed an act of discrimination, based on the provisions of Arts. 15, 21, 46, 48, 68 of the Constitution of the Republic of Serbia, the provision of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the provisions of Article 2, paragraph 1, Article 4, paragraph 1, Arts. 8, 9, 11, 12, 20, 21 and 45, paragraph 2 of the Law on Prohibition of Discrimination. The court stated that the defendant expressed ideas and attitudes that are disturbing and humiliating and that he insulted the dignity and incited discrimination and hatred against two groups of people, only because of their personal, inherent characteristics, At the same time, the first-instance court found that statements from the disputed text, advocates wider stereotypes about the patriarchal organization of the family, according to which principle the man puts woman in an unequal position.

The defendant appealed to the Court of Appeals, which overturned the decision of the first-instance court. The court of second instance reiterated well-established standard according to which, when applying the discrimination test, it was necessary to examine whether there was an objective-reasonable justification for making a difference/unequal treatment, in terms of pursuit of a legitimate aim and if such aim exists, whether there was a required proportionality. The court, found that, nevertheless, that the defendant did not endorse unequal treatment between women and men or between persons of different sexual orientation since he just argued about the deficiencies of the new Law. Thus, there was no discrimination.

Dissatisfied with the decision of the Appellate Court, the plaintiff filed a review – an extraordinary legal remedy before The Supreme Court of Cassation. The plaintiff argued that the second-instance court erroneously applied the relevant law.

Decision Overview

While it aligned with the Appellate Court, the Supreme Court of Cassation further observed that in the views expressed by the defendant in the disputed text, he did not insult members of the other sex (women) or members of a different sexual orientation. He presented his value judgment on the quality of the Law on Prevention of Domestic Violence, while criticizing the manifestation of the sexuality of the LGBT group that was expressed during the public walk of LGBT members during the parade.

The Supreme Court started the elaboration from the fact that the defendant in his analysis of the Law did not raise the issue of the difference between the sexes in terms of their equal status, but only underlined the dysfunctionality of the law’s provisions, emphasizing its ineffectiveness.

The Supreme Court particularly points out the fact that in order to render a valid judgment, it is necessary to analyze the context of the entire text, and not only its separate parts – sentences, at the same time indicating that it is obvious that the defendant’s goal, by expressing a certain value judgment, was not to insult members of the other sex or members of another sexual orientation, but rather to express his value judgment when it comes to the issue of general interest.

The Court took the stance that not every negative evaluation of a certain social phenomenon in the form of a value judgment can be considered as a discrimination and that the veracity of the defendant’s value judgment is generally not discussed in the case because it needs to be done only when it comes to the factual allegations. The defendant was allowed to share his value judgment publicly on the issue in question and this forms his right to freedom of expression. Such right is necessary for the survival and development of a democratic society. Discrimination cannot be established just because of harsh words. A priori considering such expression as a discriminatory would lead to the chilling effect when it is necessary to discuss issues of general importance.

Finally, the Court clarified that with an objective assessment of the average reader, it could be concluded that the goal of the defendant’s text was to challenge the quality of the Law, not to insult the targeted groups.