Published on 16 June 2025
THIRD SECTION
Application no. 27105/24
Aladin PAUČINAC
against Serbia
lodged on 17 September 2024
communicated on 28 May 2025
STATEMENT OF FACTS
The case concerns the applicant’s conviction for insult in respect of a post made on his Facebook page during the COVID-19 pandemic.
The applicant is the founder of the “Free Citizens’ Initiative”, a civic union based in Novi Pazar. During the pandemic, he was active in criticising the authorities’ response to the pandemic, participating in several civic protests prompted by allegations of disproportionately high death rate in Novi Pazar and mismanagement of the City Hospital in that context.
In September 2020 the applicant posted on his Facebook page about the “pandemic crisis response team” (krizni štab) in which he called M.M., the acting director of the hospital, and another member of the crisis team, “wretches” (bednici). Following M.M.’s private criminal action the applicant was found guilty of insult and fined approximately 430 euros (EUR). The appellate court upheld the conviction, finding, as did the trial court, that the applicant’s comment had been excessive and had been made with the intention of denigrating and insulting M.M.
On 11 April 2024, the Constitutional Court dismissed the applicant’s constitutional appeal and upheld the reasoning of the lower court. It added that the relatively small amount of the fine imposed on the applicant would not discourage criticism of public officials.
It appears that several similar proceedings, both criminal and civil, all instituted by M.M., are pending against the applicant, who claims that he has so far had to pay approximately EUR 10,000 in fines, damages to M.M. and costs of the proceedings.
While invoking Articles 6 and 10 of the Convention, the applicant essentially complains that the above criminal conviction violated his right to freedom of expression.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression contrary to Article 10 of the Convention? In particular, was the interference with the applicant’s right to freedom of expression “necessary in a democratic society” in terms of Article 10 § 2 of the Convention (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 187, 8 November 2016)? More specifically:
(a) Was the applicant’s Facebook post a gratuitous personal attack on, or insult to M.M. (see Mamère v. France, no. 12697/03, § 25, ECHR 2006-XIII; Lopes Gomes da Silva v. Portugal, no. 37698/97, § 34, ECHR 2000-X; and, mutatis mutandis, Janowski v. Poland [GC], no. 25716/94, §§ 32-34, ECHR 1999-I)?
(b) Did the national authorities strike a fair balance between, on the one hand, the applicant’s right to freedom of expression, and the protection of M. M.’s right to respect for his private life, on the other hand (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 90-93, ECHR 2015 (extracts); see also Sanchez v. France [GC], no. 45581/15, §§ 158-62, 15 May 2023; Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 77, 2 February 2016; Milosavljević v. Serbia, no. 57574/14, § 61, 25 May 2021; and Busuioc v. Moldova, no. 61513/00, § 64, 21 December 2004)?
(c) Was the nature and the severity of the penalty imposed on the applicant a proportionate interference with his freedom of expression (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI; Sanchez, cited above, §§ 205-08)? Furthermore, and in view of the nature and number of legal actions initiated by M.M. against the applicant, do they amount to strategic lawsuits against public participation (see Recommendation CM/Rec(2024)2 of the Committee of Ministers to member States on countering the use of strategic lawsuits against public participation (SLAPPs))? If so, have the authorities taken any action to protect the applicant from such alleged misuse or abuse of law? Has the aforesaid Recommendation been translated into Serbian and widely disseminated (notably among the domestic courts)?
The parties are invited to provide copies of all the documents produced in the course of all criminal and civil proceedings instituted by M.M. against the applicant which concern the applicant’s statements made in the context of the COVID-19 pandemic and the functioning of the healthcare system in Novi Pazar.
The applicant is invited to provide the information about his income.