In a recent decision, the Administrative Court in Belgrade refuted the position of the Serbian electronic media regulator (REM) that the purported lack of a majority of votes entitled the regulator to discontinue the proceedings against a television broadcaster.
On 10 May 2021, REM discontinued the proceedings against Happy TV, initiated two months earlier by former prisoners of the concentration camps Omarska, Keraterm and Trnopolje (in the area of Prijedor) that existed during the Bosnian war (1992-1995). REM stated that it was unable to reach a majority of votes either in favour or against Happy TV.
The judgment of the Administrative Court, dated 27 October 2023 but delivered to the parties in February 2024, is notable because it establishes that REM was not permitted to discontinue the proceedings on the ground that it could not reach a majority of votes. In addition, the Court found that by preventing the plaintiffs from actively participating in the proceedings, REM breached a series of fundamental principles of administrative proceedings: legality and foreseeability of the proceedings, protection of public interest and the interest of third parties, effectiveness of the proceedings, truthful determination of facts, and protection of the right of the parties to be heard.
BDK Advokati represented the plaintiffs in the proceedings before REM and the Administrative Court. Our team consisted of senior partner Bogdan Ivanišević and senior associate Relja Radović.
Background: The complained program and the non-decision by REM
In March 2021, the plaintiffs Satko Mujagić, Fikret Alić, and the Association of Camp Inmates Kozarac complained to REM regarding the statements made in Happy TV’s morning show “Good morning, Serbia” (Dobro jutro Srbijo) on 22 February 2021. In the program, the host Milomir Marić and his guest, movie director Predrag Antonijević, stated that the camps in the Prijedor area (in Bosnia and Herzegovina, controlled by the Bosnian Serb army during the 1992-1995 war) were “open” and served for people to seek shelter in them, and that reporting on the camps was part of “world-wide propaganda” against Serbs. In an implicit reference to Fikret Alić, whose photo from a camp was featured on the cover of Time magazine in 1992, Marić and Antonijević alluded that his extreme emaciation was due to tuberculosis and that Alić was later “fed” and “shown in circus around Europe”.
The plaintiffs alleged that such statements denied the atrocities in Prijedor concentration camps and implicitly denied the personal sufferings of Fikret Alić, thus violating both the public interest and personal interests of the complainants. Furthermore, they alleged that such statements violated the obligations of Happy TV under the Electronic Media Act and the Rulebook on the Protection of Human Rights in the Area of Media Services, specifically the obligations of truthfulness, respect for human rights, and prohibition of hate speech.
In April 2021, REM joined the case initiated by the plaintiffs with a case against Happy TV, concerning the same matter, initiated earlier by a Serbian human rights organisation alleging a violation of the public interest. REM then conducted the proceedings, allowing only the representative of Happy TV to attend the session.
On 10 May 2021, REM decided to discontinue the proceedings on the ground that it could not reach a majority of votes for either of the proposed measures against Happy TV (warning, or prohibition of broadcast of the show for 30 days) or for terminating the case against Happy TV. REM based its decision on Article 101(1) of the General Administrative Procedure Act, which states that proceedings are to be discontinued if there are no conditions for their further conduct and the law does not mandate their continuance.
Proceedings before the Administrative Court
The plaintiffs challenged the decision of REM before the Administrative Court. They argued, among others, that Article 101(1) of the General Administrative Procedure Act did not allow REM to discontinue the proceedings in the event of inability to reach a majority, that by doing so REM essentially abdicated its duty to decide cases upon complaints and denied the plaintiffs’ right to a decision, and that REM was obliged to offer the plaintiffs an opportunity to be heard at its session.
In response to the plaintiffs’ lawsuit to the Administrative Court, REM made no substantive argument concerning its decision to discontinue the proceedings on the grounds of purported inability to reach a majority of votes. It focused on its decision not to invite the plaintiffs to its session. REM claimed that such a decision was justified because REM conducted the case ex officio and regarding a potential violation of public interest only, and not upon the plaintiffs’ complaint and regarding a potential violation of private interests.
In the judgment of 27 October 2023, the Administrative Court confirmed the arguments of the plaintiffs.
The Court ruled that neither Article 101(1) of the General Administrative Procedure Act nor any other provision of that law allows discontinuance of proceedings if a collective body cannot reach a majority.
The Court also found that REM failed to secure the participation of the plaintiffs in the proceedings. Crucially, according to the Administrative Court, REM’s decision to assess the challenged conduct of Happy TV only from the point of view of public interest was arbitrary, and the decision to exclude the plaintiffs from the proceedings even though they alleged a violation of their private interests violated the fundamental principles of administrative proceedings.
Although the Electronic Media Act mandates urgency of the proceedings before the Administrative Court, the proceedings in the case against REM lasted well over two years. For that reason, the plaintiffs had earlier obtained determination of violation of their right to a trial within a reasonable time.
What happens next
The Administrative Court annulled REM’s decision on discontinuance and remanded the case to the regulator for a new decision. REM should make a new decision within 30 days from the service of the judgment. The regulator is now obliged to secure the participation of the plaintiffs in the proceedings and to assess possible violations of their private interests by Happy TV.
