CONCURRING OPINION OF JUDGE KOSKELO

1. I have joined the majority in concluding that there has been no violation of Article 10 in the present case, but I have done so with considerable hesitation. I will briefly set out the reasons for this.

2. The factual background to the case, in a nutshell, is the following. The applicants, as journalists and civil-society activists, exercised their freedoms of expression and assembly in relation to commonplace matters of general interest (see paragraph 5 of the present judgment). In the wake of those activities, they were targeted, on the website of a right-wing movement and in certain pro-government media, with very serious and repeated accusations alleging that the applicants, through their association with protests organised under the banner “Don’t let Belgrade d(r)own”, were involved in a foreign-led conspiracy by extremists, directed against the elected government and aimed at its overthrow, or even the “assassination” of the Prime Minister.

3. The applicants sought, in vain, to obtain protection by the domestic criminal justice system. According to the competent prosecuting authorities, there was no ground to believe that any criminal offence which was subject to public prosecution had been committed. They considered that the reported actions had had no consequences and entailed no deprivation or restriction of anyone’s rights. Nor had the publication of the articles promoted or incited hatred, discrimination or violence against any groups based on their religion, nationality or other personal characteristic. It was acknowledged that the reported acts could perhaps have been classified as an insult, which, however, was not subject to public prosecution. The applicants’ subsequent constitutional appeal was rejected.

4. It is well known that the Court’s approach has been critical, and restrictive, towards the use of criminal remedies in the context of measures by State authorities to sanction the exercise of freedom of expression. In many situations, there are very well-founded and solid reasons to justify that approach. Indeed, there are obvious risks involved in recourse being had to the repressive penal powers of the State, especially when it comes to interferences in the exercise of criticism directed at institutions or persons in positions of power. That being said, any assessment of the acts or omissions of State authorities, whether in the field of their negative or positive obligations under the Convention, must, however, remain sensitive to the context and adequately differentiated according to the specific circumstances.

5. What is at issue in the present case are accusations directed at the applicants by other private actors, denouncing and discrediting them on account of the protest activities in which they participated. Given the very serious nature of the accusations levelled against the applicants and the general context, it seems well-founded to consider, as the applicants did, that the actions they complained of went beyond mere insults. Indeed, it appears that freedom of expression was employed against the applicants with a view to suppressing their freedoms to act and express their opinions. Thus, the present case is not about any chilling effect that might arise from sanctions applied against those who engage in criticism; it is, on the contrary, about the chilling effect that risks being created through the failure to impose sanctions on those who seek to attack others for the usual exercise of their freedoms, and who do so not by engaging in an exchange of arguments on the subject matter of the issues addressed but through attempts to stigmatise the opponents as traitors and conspirators, that is to say, enemies of the State, instead of treating them as legitimate participants and interlocutors in the normal affairs and controversies of society. The dangers of such aggressive, potentially toxic and intimidating smear campaigns for the conditions, and the quality, of necessary democratic debates and exchanges of arguments should not be underestimated. After all, the ultimate aim of freedom of expression is to enable and to maintain democracy, not to undermine it.

6. Therefore, it is indeed very important in the interest of protecting democracy to uphold the positive obligations incumbent on the States Parties to create, by establishing an effective system for the protection of journalists as well as members of civil society, a favourable environment for participation in public debate. This should enable the expression of opinions and ideas without fear, even if they may run counter to those defended by the official authorities or by a significant part of public opinion (see Khadija Ismayilova v. Azerbaijan , nos. 65286/13 and 57270/14, § 158, 10 January 2019).

7. In this context, the availability of recourse to various civil remedies alone may not be sufficient, especially in terms of the necessary dissuasive effect. I note, for instance, that in the domestic civil judgment mentioned in paragraph 57 of the present judgment, the award of compensation amounted to 100,000 Serbian dinars, equivalent to no more than roughly 850 euros.

8. Even where outright hate speech is not involved, acts amounting to intimidation, smear campaigns or other forms of persistent harassment aimed at others because of their normal exercise of freedoms under Article 10 may reasonably call for a reaction, and protection of the victims, by the criminal justice system. This may be particularly relevant if suppressive actions by some actors or groups directed at those holding and expressing different views become a more general pattern of behaviour. In this regard, one must note with concern the information contained in paragraphs 26-30 of the present judgment relating to the general environment of media freedom and debate in the respondent State.

9. In my view, the circumstances of the case together with the more general context were of such a nature as to create a heightened duty of scrutiny on the part of the domestic authorities in connection with the positive obligations arising for them under Article 10. Given the very limited and superficial reasoning provided (see paragraph 18 of the judgment), I remain in doubt as to whether the domestic authorities, primarily the prosecution service, actually conducted a sufficiently thorough assessment of the applicants’ grievances, in particular as regards the offence set out in Article 148 of the Criminal Code. As that provision concerns an offence which is subject to public prosecution, it fell to be considered even if it was not expressly referred to by the applicants themselves.

10. Given the inherent limits of the information accessible in the materials before us, and the necessary caution mandated by the partial view available to us, I have voted in favour of finding no violation despite the doubts expressed above.