Activists and Government critics are suing for comments against them in the media and online. The lawsuits were set aside by the prosecutor. No violation of freedom of expression
JUDGMENT
Gaši and others v. Serbia 06.09.2022 (αρ. προσφ. 24738/19)
SUMMARY
The applicants are journalists and activists, often critical of the government. They claimed that there was a smear campaign against them in 2016 after they participated in protests against some demolitions and construction projects in Belgrade and about changes in the management of a regional radio and television station. In particular, print and online media articles accused the applicants of being traitors and extremists acting at the behest of the European Union and the US and wishing to destabilize the state and assassinate the prime minister. The applicants filed lawsuits against the authors of the articles, which were filed by the public prosecutor.
Relying on Article 10 (freedom of expression), the applicants complained that the State had failed to protect them from the media campaign against them and the subsequent threatening comments on the internet. They claimed in particular that a pattern of punishment against high-profile critics of the government in Serbia had contributed to an increasingly hostile environment for freedom of expression and open dialogue.
The ECtHR found that: a) the prosecutor’s findings were not arbitrary or manifestly unreasonable nor were they based on an unacceptable assessment of the relevant facts and b) the national law provides for certain other remedies, in addition to those they exercised, which offer the applicants protection of their freedom of expression expression, if they believed there had been a violation. Such remedies were actions for damages, requests to redact published information and appeals to the Electronic Media Regulator. The applicants did not deny that indeed they had all these remedies at their disposal, but they did not make use of them.
The Court did not find that the respondent State breached its positive obligation to protect the applicants’ freedom of expression. Therefore, the ECtHR held that there was no violation of Article 10 of the Convention.
PROVISION
Article 10
PRINCIPAL FACTS
The applicants, Ilir Gaši, Vukašin Obradović, Antonela Riha and Tamara Skroza are Serbian nationals
who were born in 1980, 1962, 1963, and 1973, respectively, and live in Belgrade.
The applicants are journalists and civil-sector activists, often critical of the government and the
authorities. The case concerns their allegation of a smear campaign against them in 2016 after they
had participated in protests against certain demolition and building projects in Belgrade and changes
to the management of a regional radio-television station. In particular, printed and online articles in
the media accused the applicants of being traitors and extremists acting at the behest of the
European Union and the USA and wishing to destabilise the State and assassinate the Prime
Minister. The applicants lodged a criminal complaint against the authors and editors of the articles,
which was rejected by the public prosecutor.
Relying on Article 10 (freedom of expression) of the Convention, the applicants complain that the
State failed to protect them from the campaign against them in the media and the resulting
threatening online comments. They allege in particular that a pattern of retribution against
high-profile critics of the government in Serbia had contributed to an increasingly hostile
environment for free expression and open debate.
THE DECISION OF THE COURT…
The Court notes that the applicants are journalists and civil-sector activists who took part in protests criticising the demolition of certain houses and installations, a large-scale construction project in Belgrade, and the changes in the management of a regional radio‑television station. This was followed by two articles, published on 27 May and 9 June 2016, suggesting that the real organisers and financers of the protests were the European Union and the United States of America, who wanted to “radicalise” the protests with the ultimate aim of overthrowing the Serbian Prime Minister, and that a number of persons from Serbia, including the applicants, were participating in that project. The allegations made in this article were repeated on 28 May, and 10 and 13 June 2016. The applicants submitted that these allegations had made them feel threatened, which was why they had resorted to a criminal complaint. They maintained that the national authorities had had an obligation to carefully assess all the facts and protect the applicants, but they had failed to do so.
The Court notes that even though the applicants submitted that they had felt threatened following the publication of the above articles and broadcasting of the programmes in question, none of them has ever in fact been subjected to any act of violence. They brought their concern and fear to the attention of the authorities by lodging a criminal complaint for discrimination and a breach of the right to equality against several private individuals, which was processed promptly. While it is true that the police did not interview all the persons against whom the complaint had been made, the Court notes that the factual situation was more or less undisputed among the parties and a decision not to interview all of them in such a situation does not seem unreasonable or arbitrary. On the basis of the information collected, the prosecutor rejected the applicants’ criminal complaint as there were no grounds to believe that the persons in question had committed any of the alleged criminal offences. Contrary to the applicants’ submissions, the prosecutor also held that there were no grounds to believe that any other criminal offence subject to public prosecution had been committed either.
The Court also notes that it is not for it to rule on the constituent elements under domestic law of the offences of discrimination and a breach of the right to equality, or any other offence for that matter. The Court’s role is rather to review under Article 10 the decisions that domestic courts deliver pursuant to their power of appreciation. In doing so, it must satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts. In view of the content of the articles and television shows in question, and that of the applicants’ criminal complaint, the Court is not convinced that the decision of the relevant prosecutor was not based on an acceptable assessment of the relevant facts. The Court observes that the prosecutor went even further, suggesting that the allegations in question amounted perhaps to the criminal offence of insult, which was subject to private prosecution. The applicants did not, however, pursue this avenue.
It is further observed that the national legislation provides for a number of other remedies offering the applicants protection of their freedom of expression, had they felt that it had been interfered with. These included, in particular, civil proceedings for a violation of the prohibition of hate speech, as well as civil proceedings for claiming compensation, requesting a reply to and/or rectification of information published, and a number of measures pronounced by the Regulatory Body for Electronic Media. The Government submitted abundant domestic case-law for each of the remedies in question. In all of them, the courts and the Regulatory Body ruled in favour of various claimants and ordered that either a reply to or a rectification of information be published; found violations of hate speech and ordered the respondent party to publish the judgments in question; ordered compensation in respect of non-pecuniary damage for a violation of their honour and reputation or their dignity and presumption of innocence caused by untrue and/or forbidden information being published about them; or issued warning and notices or banned further publishing of the particular content. In some of them the respondent parties were the same media companies against whose editors-in-chief the applicants had lodged their own criminal complaint, and in some of them the courts dealt with third-parties’ comments too. The applicants did not deny that these other remedies were available to them.
The Court also takes note of the reports on the situation in Serbia concerning the freedom of expression and safety of journalists, and the reports of physical attacks and other types of alleged persecution of journalists. However, given the specific circumstances of the present case, the Court considers that the prosecutor’s findings were not arbitrary or manifestly unreasonable and nor did they rely on an unacceptable assessment of the relevant facts. It also finds that the respondent State offered a number of other effective means for the protection of the applicants, which they have not made use of.
In view of all of the above, the Court does not find that the respondent State failed in their positive obligation to protect the applicants’ freedom of expression. There has accordingly been no violation of Article 10 of the Convention.
