OPINION

The opinion was adopted in the proceedings regarding the complaint submitted by the legal representative of the business company AA doo and the journalist BB, against the Serbian Orthodox Church – Eparchy of Bačka, secretary of the Eparchy of Bačka VV and priest GG. In the complaint it is stated that only television DD and journalists BB were not allowed to enter the courtyard of the Church of the Holy Epiphany when they wanted to report on the commemoration of the 79th anniversary of the Raid in South Bačka. The complainants believe that the basis of discrimination is an assumed personal characteristic, political conviction. In the statement on the complaint, it was specified that the law stipulates that churches have the right to independently carry out their internal affairs. Also, it was stated that DD television, on several occasions, unauthorizedly recorded the believers and priests of the Serbian Orthodox Church in the performance of religious rites (communion) and thus directly endangered the integrity of the place of worship because the principle of individuality and privacy of believers and priests was violated. During the procedure, it was established that the memorial service for the victims of the Raid in the church yard was open to the public, that the media were invited to report on this event, and that the television DD crew and the journalist BB were denied access. With regard to the basis of discrimination – political conviction, the Commissioner stated that this personal characteristic is by nature immanent to natural persons, bearing in mind that the prohibition of discrimination based on political conviction is inextricably linked with freedom of thought, conscience and religion, which is guaranteed by national and international legal regulations to every citizen. It is one of the important elements of the identity of the human personality and a result of an intellectual and spiritual process, and as such, it is a personal characteristic that is related to the natural person. This is confirmed by the norms from the Law on Information and Media, which state that the public interest in the field of public information is: true, impartial, timely and complete information of all citizens of the Republic of Serbia, as well as that discrimination against media editors, journalists and other persons in the field of public information is prohibited, albeit not discrimination against the media as a legal entity. Bearing in mind the fact that a television cannot have a “political conviction” as a personal characteristic, the procedure was continued only in the part of the complaint that refers to whether the DD television journalist was placed in an unequal position on the basis of an assumed personal characteristic – political conviction, and not the company AA doo, which produces the DD television program, as a legal entity. The Commissioner points out that the rule on the redistribution of the burden of proof from Article 45 of the Law on Prohibition of Discrimination is important in procedures for protection against discrimination. In this regard, the Commissioner states that the complainants made it probable that there exists a certain perception about the “editorial policy” of DD television, which provided the basis for unequal treatment of their journalistic team, and therefore the journalists BB. Namely, together with the complaint, the following were submitted: a recording of the conversation with the secretary of the Eparchy and texts published on the website of the Eparchy, which speak about the reporting of this television. On the other hand, the persons against whom the complaint was filed did not provide evidence that the ban on the entry of the DD television journalist did not violate the principle of equality, nor that such a ban had a legitimate goal and a justified reason, and therefore the Commissioner, applying the rules on redistributing the burden of proof, issued the opinion that the ban on entry of the DD television journalist BB represents a violation of the provisions of the Law on Prohibition of Discrimination. Namely, although it was pointed out in the statement that DD television, by filming believers and priests during the performance of the communion rite, in their opinion violated privacy, the Commissioner points out that such an earlier event has nothing to do with this television’s reporting on the commemoration of the anniversary of the Raid. The Eparchy of Bačka has a justified and legitimate goal to protect the interests of believers and priests, primarily the right to freedom of religion. It also has the right to protection of accuracy and truthfulness of information about the Church that is published through the media, as well as to protection of the reputation of the Church. However, banning the entry of the television crew and a journalist is not an appropriate, nor a necessary means to achieve that goal. If the Eparchy of Bačka was dissatisfied with the way in which a specific television reported, or if the television broadcast untrue information that could harm the reputation of the Church, it had the opportunity to take legal measures to protect its interests and rights, through the institutions of the Republic of Serbia, including the Commissioner for the protection of equality. The freedom to communicate and receive information from a wide variety of sources is protected by law and is considered essential for democratic processes in society, as confirmed by the European Court of Human Rights. After the presentation of evidence and comprehensive analysis of the regulations governing the position of the Serbian Orthodox Church, as well as domestic and international regulations on the prohibition of discrimination, the Commissioner is of the opinion that in this particular case there was no reasonable justification for the Eparchy of Bačka, the secretary of the Eparchy VV and priest GG, to deny access to the DD television journalist BB to report from a public event. The Commissioner issued the opinion that the ban on the DD television journalists BB to enter the port of the Church of the Holy Epiphany, where a memorial service was held for the victims of the Raid, violated the provisions of Article 6 of the Law on Prohibition of Discrimination. Therefore, it was recommended to VV, the secretary of the Eparchy of Bačka, and GG, the priest, to send a written apology to the journalists BB and to take care to comply with the regulations on prohibition of discrimination in the future.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković