27 Sep No violation of freedom of expression due to rejection of criminal complaint of journalist who have been targeted in the media

In the case of Gaši and Others v. Serbia (application no. 24738/19, 06.09.2022) the European Court of Human Rights has found no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

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. 

The Court found that the positive obligations under Article 10 of the Convention require States to create, while establishing an effective system for the protection of journalists, a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear, even if they run counter to those defended by the official authorities or by a significant part of public opinion, or even if irritating or shocking to the latter. 

Turning to the present case, the Court noted 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 (contrast Özgür Gündem v. Turkey, no. 23144/93, where the domestic authorities – which were aware of a series of violent actions against a newspaper and people associated with it ‒ did not take any action to protect the newspaper and its journalists). While it is true that the police did not interview all the persons against whom the complaint had been made, the Court noted 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. 

The Court also noted 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 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. 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 Court also took a 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 found that the respondent State offered a number of other effective means for the protection of the applicants, which they have not made use of. There has accordingly been no violation of Article 10 of the Convention.

Reference from the website of the European Court of Human Rights