Media before Serbian Courts: A Struggle to Reach European Standards

Authored by Oleg Soldatov* and Milan Filipović**

In February 2018 YUCOM , a Serbian NGO active in the field of human rights, published a study concerning the jurisprudence of the Serbian courts over the last three years in the field of media law (available in Serbian language). This short article recounts the major findings of the study as well as the main points discussed at the Conference titled “Journalists and the Media on Trial ”, organised by the Open Society Foundation and YUCOM on 31 January 2018.

It should be noted from the outset that the current media law framework in Serbia is rather fragmented and consists of a number of legislative sources on various levels. In addition to the European Convention of Human Rights (ratified by the state union of Serbia and Montenegro on 3 March 2004) and the Constitution of the Republic of Serbia, the following specialised laws are directly applicable to the media workers and professional duties they discharge:

• Law on Public Information and Media;
• Law on Electronic Media;
• Law on Personal Data Protection;
• Law on Access to Information of Public Importance;
• Criminal Code, specifically, the provisions relating to the offences of criminal insult, copyright offences, disclosure of personal data and of information received in confidence and hate speech; special rules on the offences committed through media; as well as the liability of editors and publishers the protection of journalistic sources;
• Law on Misdemeanours and Law on Economic Offences, both of which contain sanctions for non-compliance with Law on Public Information and Law on Electronic Media (see above);
• Various procedural codes, stipulating the provisions on protecting the rights enshrined in the above laws (summaries of the Serbian legislation in English can be found here ).

The Serbian legislative framework seems rather progressive and, in general, follows the European Union and the Council of Europe standards, recognising the special role of the media (including on the Internet), promoting free flow of information and providing safeguards concerning freedom of expression. Conversely, challenges of application are not uncommon.

The first problem concerns reluctance of the Serbian judiciary to refer to the European Convention on Human Rights as a source of law and to use the case-law of the European Court of Human Rights as a guidance. While Articles 16 and 194 of the Serbian Constitution recognize the ratified international agreements (including the ECHR) as a source of law, the recent case of Stevan Lilić against the Faculty of Law of the Belgrade University which reached the Belgrade Court of Appeal (case number Гж1.бр. 3093/15) illustrates an unsettling tendency. In this labour dispute, the Court refused to take into consideration the opinions of the ECtHR, and referred the plaintiff to the Constitutional Court to resolve his human rights complaints. It remains questionable though, whether the Constitutional Court can serve as an effective remedy in trials between private parties, taking into account its mandate and the fact that the procedure before the Constitutional Court may literally take years .

Given that the European Court of Human Rights had played a major role in shaping the responsibilities of the media in a modern society (some of its recent judgements and decisions in the field were discussed in a recent conference held in Strasbourg as well as on this platform), the demonstrable unwillingness of the Serbian courts to adhere to the opinions of the Strasbourg Court may lead to unnecessary fragmentation of media law approaches among the 47 Member States of the Council of Europe.

Secondly, there is an issue of availability of verdicts in the public database of the Belgrade Higher Court, the Court that usually hears the media-related cases. Following the legislative changes, no cases delivered after 2013 are freely available for the general public. In addition, journalists in their coverage of court procedures often demonstrate their lack of understanding of the presumption of innocence principle and juvenile rights, which, in the absence of full access to the case-law, exacerbates the situation.

Thirdly, the procedural shortcomings in the practice of the Serbian judiciary create a plethora of problematic situations. In particular, the length of proceedings related to media cases seems to be an issue – not only because of their excessive length, but also owing to an unclear procedure as to how the courts prioritize their work-flow: while some media-related cases may get a “rocket docket” treatment (in a recent case where the plaintiff was the Ministry of Interior the verdict was reached in one day ), others can await their resolution for years. On top of this, the damages awarded vary widely from case to case and their amounts do not appear to follow any objective criteria. Furthermore, there seems to be a gap in efficiency of the courts (from the lowest levels up to the level of the Constitutional Court) between the media-related cases and the cases on other subjects: only a small fraction of cases dealing with the media is decided on merits, while the majority of media-related cases are dismissed for procedural reasons.

Finally, low and middle-income citizens living outside Belgrade may encounter significant difficulties reaching the courts in Belgrade to be able to participate in the hearings in person. This effectively amounts to denial of access to court in the absence of legal aid provisions covering such circumstances.

To address the above mentioned problems, YUCOM identified several core areas for improvements to make the legal field more even for the needs of the media. These areas include, but are not limited to:

• Continuously educating judges on the ECtHR case-law awareness and application and ensuring the availability of relevant decisions of the Strasbourg Court, as well as decisions in which domestic courts have referred to the provisions of the European Convention on Human Rights, both for judges and for the general public;
• Training the journalists who report on court procedures in order to improve the quality and analytical standards of their work, with a special emphasis on respecting the presumption of innocence principle and juvenile rights;
• Working to increase levels of transparency regarding the reasoning behind the calculation of damages awarded by the courts;
• Pro-active dissemination of the existing court registry data and facilitating free access to statistics regarding the efficiency of the courts.
• Speeding up the adoption of court decisions in proceedings concerning the freedom of the media, given its amplified public concern;
• Incorporating the provisions on legal aid in cases related to media freedom into the draft law currently under consideration.

Some of these recommendations are entirely evident and common-sense. They have been rehearsed to address similar problems emerging in other countries (for instance, see the projects of the Media and Internet division of the Council of Europe). Nonetheless, it is always appropriate to send reminders of good practices and of the context in which they are to be implemented.

* Oleg Soldatov is a PhD researcher at Bocconi University in Milan. He worked as a lawyer at the European Court of Human Rights from 2011 to 2014 and as a legal advisor at the Council of Europe in 2015-2016.

** Milan Filipović is a human rights activist and a lawyer with the NGO YUCOM – Lawyers’ Committee for Human Rights – in Belgrade, Serbia.