“‘The law does not protect people; people protect the law.’ So tell me anime is childish.”
That is the tweet that pulled the trigger for this text, even though there is little that could be described as childish in what follows when we speak about one of the most dedicated human rights defenders I have the opportunity to represent. Choosing to devote a large part, or even the whole of one’s life, to the protection of human rights is not only a matter of character that almost resembles a religious calling; it is also altruistic, rooted in solidarity, in a word, humane. It seems as though nothing could possibly go wrong when you choose such a vocation. So how did we end up here?
"The law does not protect people; people protect the law"
Sofija T. is currently the director of the Youth Initiative for Human Rights. She has been an activist far longer than that. She is a textbook example of someone who chose this vocation and who, because of that choice, has become the subject of a coordinated campaign of persecution by representatives of the ruling party, media outlets close to them, and public authorities—although in recent years it has become increasingly difficult to distinguish between these actors.
At this moment, Sofija is leading more than 20 civil lawsuits against media outlets, individuals close to the authorities, or so-called government-organized NGOs (GONGOs). There are dozens of criminal complaints, mostly submitted to the Special Department of the Higher Public Prosecutor’s Office for High-Tech Crime, concerning the persecution she faces primarily on social media. Some of them relate to incidents in the offline world as well. A severed pig’s head was sent to the address of her office. Graffiti was written on the building near where she lives. She is threatened and insulted on the street. All of this is accompanied by a coordinated media campaign spreading hate speech. As if that were not enough, representatives of the police contribute by regularly filing misdemeanor charges against her and other activists, or by detaining her for hours in the airport transit zone every time she leaves or enters the country. It is a comprehensive, wide-ranging and systematic attack carried out by coordinated forces, one that increasingly resembles a crime against humanity, while never losing its original aim of producing a “deterrent effect,” hoping that she will finally stop engaging in human rights protection.
All of this has been presented before prosecutors and judges. Not a single criminal complaint has resulted in anything other than dismissal. No objection against those dismissals has been upheld, while the few that were upheld were soon followed by new dismissals. None of the constitutional complaints concerning ineffective investigations have yet been decided, even though years have passed and there are many of them.
"Not a single criminal complaint has resulted in anything other than dismissal. "
On the other hand, several civil proceedings that have concluded so far resulted in first-instance findings of hate speech, symbolic compensation of around 500–600 euros for non-pecuniary damage, and orders for the defendant media outlets to publish the introduction and operative part of the judgment. Not a single judge has granted a request to publish the judgment in full, nor have courts ordered the removal of the articles which they simultaneously found to contain hate speech (?!). The fact that judges are aware of the number of proceedings and the content of articles in other media outlets and cases does not lead them to depart from these “template judgments,” from the level of sanctions, or from the lack of individualization of Sofija T.’s case. With such wind at their backs, the defendant media outlets continue to spread hatred even after being found liable. This makes the ineffectiveness of civil litigation as a legal remedy in Serbia, at least in her case, painfully obvious.
Misdemeanor proceedings initiated by police complaints have been discontinued due to the statute of limitations. There have been no acquittals on the merits, probably because it was obvious that no misdemeanor had been committed, so limitation served as an elegant way to avoid exposing the judge who would have had to deliver an obviously unfounded conviction to public scrutiny.
Some of these issues have been brought before the European Court of Human Rights. Some of them are still pending there. All of this, of course, takes time. Meanwhile, persecution and the spread of hatred remain far more effective, faster, and more efficient mechanisms for the dehumanization of Sofija T. than the protection that is supposed to exist but does not, while the protection that is nominally offered to her is neither effective nor efficient, nor has it produced any tangible result.
For any reasonable judge of these facts, the conclusion that the law does not protect people, or at least does not protect all people equally, is unavoidable. The problem actually arises when those who adjudicate the facts, whom we have entrusted to do so in the name of the people, ignore the fact that they are the very people who protect the law that is supposed to protect the rest of us. Legal protection and judicial protection are not synonyms, nor have they ever been. Legal protection does not exist without a court willing to cultivate the field protected by the relevant norm and to provide shelter for the victim of persecution, attacks, or hate speech.
"Legal protection and judicial protection are not synonyms, nor have they ever been."
But that is not all. The protection afforded to a victim must also be swift, effective, efficient, thorough, and must produce a deterrent effect on the perpetrator of the harmful act, whatever that act may be. If the perpetrator continues to cause harm even after a conviction, adequate judicial protection has clearly failed, and the legal remedy provided is therefore entirely ineffective.
Sofija T. has experienced the full ineffectiveness of legal mechanisms firsthand every time she sought protection from attacks by pro-government media, representatives of the ruling party, or state authorities who attempted to silence her in various ways, sometimes by filing misdemeanor charges, sometimes by detaining her for hours in airport transit zones or at border crossings, and sometimes by sending a pig’s head to her workplace address. At the same time, she has experienced the remarkable effectiveness of those same mechanisms when she herself became the target of obviously unfounded actions by state authorities, such as the aforementioned hours-long airport harassment. In both situations, the law somehow always seemed to stand against her. Except that it was never really about the law, it was about those who give life to the law. Error in subiecto. That is how we arrived here.
"In both situations, the law somehow always seemed to stand against her. Except that it was never really about the law, it was about those who give life to the law. "
Author: Mihajlo Pavlović, Attorney.
