Source: Danas
Serbia has still not complied with the Ruling of the UN Human Rights Committee of 2005.
In late October 2005, the UN Human Rights Committee, in its first deliberation of a complaint filed by anyone from Serbia, and even from the whole ex-Yugoslavia, if my memory serves me, ruled that the decision of a Serbian court constituted a violation of the freedom of expression, guaranteed under Article 19 of the International Covenant on Civil and Political Rights. This ruling of the UN Committee was passed in proceedings instituted by a Serbian journalist who had been sentenced for publishing a critical - and according to the Serbian court concerned, offensive - article. The ruling obligates our country to rescind the challenged court decision, to cover all legal fees and to indemnify the plaintiff. Sadly, a whole year and a half later the sentencing decision passed by the Serbian court has not been rescinded, nor has the plaintiff received any indemnification or refunds of legal fees. Recently we learned that this indemnification was actually necessary for the journalist in question. He has since been sentenced for more or less the same offense and has been unable to pay the fines because he lacked the money, so the court converted these amounts to prison sentences. We refuse to witness an absurd situation. The editors of the paper that employs the journalist announced it would pay the fines if necessary. Chances are this will not be necessary, because the Human Rights Department of the Government of Serbia, following the reaction from the public, announced it was will to resolve the problems in connection with the refund of legal fees and fine and in connection with the required indemnification. These steps taken by the Government's Human Rights Department will certainly calm the journalists' associations and the public. It has been decided that the amount payable to the journalist must be sufficient to cover the fines converted into prison sentence, which would resolve the key problem. While efforts to remove even the hypothetical possibility of an absurdly unfair outcome of this sad story are a matter of utmost priority at present, there are other issues because of which this case should not be let out of the public eye even after the immediate threat has been eliminated. More specifically, the “Bodrozic Case” is a story not only of an individual faced with an almost Kafkian situation, but also of a State experiencing a huge gap between its proclaimed commitment to democratic standards on the one hand and its (un)willingness to enforce these standards in practice on the other hand.Our country is a party both to the International Covenant of Civil and Political Rights and to the Optional Protocol to this Covenant. This means Serbia has not only accepted the obligation to grant the individuals in its territory all rights guaranteed under the Covenant, but also accepted the jurisdiction of the UN Human Rights Committee as the body responsible for enforcing those rights. It is indeed difficult to understand why the Committee's ruling is not complied with even after so much time has elapsed. Not to mention the fact that, even after the enactment of the new Criminal Code, we do not have reliable procedural assumptions for the enforcement of that ruling. Also, no one knows when and how this ruling would be fully enforced. Indeed, even after the financial aspects have been settled, the sentence because of which the journalist originally approached the Human Rights committee and which must be rescinded under the ruling passed by that body will remain in force. A recent attempt to rescind the said court order had no effect. When the Constitutional Court refused the motion to protect legality, an issue arose whose relevance stretches fat beyond the boundaries of an individual case.
Does our legal order include the necessary assumptions for enforcing the decisions of supranational human rights bodies whose jurisdiction we voluntarily accepted? Regrettably, even a glance at the potentially relevant provisions of the Criminal Code (Articles 424, 426 and 438) reveals that the answer to this question is negative. In case of the ruling passed by the UN Committee, its relevance remains almost fully a matter of principle, not practice. The ruling discussed here will probably remain the only one of its kind in this region. With the acceptance of the European Human Rights Convention and the jurisdiction of the European Court of Human Rights in Strasbourg, our citizens have been given a new and, apparently, more efficient way of enforcing their rights. Indeed, they started using it quite robustly. The first rulings are already there and we are sure to have much more in the near future. Any problems that might arise in the enforcement of those rulings and, even more importantly, in the acceptance of standards pertaining to the freedom of expression that those rulings safeguard, ought to be prevented in advance. This is not just an issue of creating the assumptions for efficient enforcement of rulings passed by the Strasbourg Court by means of more precise articulation of relevant procedural provisions. It is far more important to create the assumptions for keeping the number of these rulings as low as possible. And the more our society abides by real standards, confirmed in the democratic countries, the less such rulings we will have. By the way, perhaps we should not always look to distant countries with much longer democratic tradition to find examples of proper way of addressing the freedom of expression. For example, both Entities of the neighbouring country of Bosnia and Herzegovina since 2002 have in force laws that preclude any criminal liability and provide only for civil, financial liability for damage caused by defamation. And the conditions under which such civil and financial liability may arise are precisely and reasonably set, so as to exclude the possibility of them becoming a means to curb the freedom of expression. The example of Bosnia and Herzegovina quoted here merits further thought. In any case, whether the actual solution implemented in Serbia is similar to that one or different, it would be irresponsible not to heed the attitudes formulated in the rulings of the European Court of Human Rights. In this context, we should remind ourselves that the European Court of Human Rights reaffirmed on more than one occasion its opinion that, of all different ways of “interfering with the freedom of expression”, criminal indictments and sentences are among the most dangerous. The European Court often opposed even the lowest of fines and identified them as implicit censorship. In a nutshell, the Court's attitude to this issue is formulated in the already famous, two decades old ruling in Lingens vs. Austria: “...… while the fine imposed on a journalist did not, strictly speaking, take from their freedom of expression, it amounted to a kind of censure, which would be likely to discourage him from making criticisms of that kind again in future … In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog..”
The author is the Commissioner for Information
