Verdict against Dragan Marković Palma is overturned

Belgrade, 08.11.2013.

Gay Straight Alliance (GSA; Alliance) informs the public that the First Basic Court in Belgrade in retrial against Dragan Marković Palma, member of the Serbian Parliament and president of the political party United Serbia (JS), after GSA’s lawsuit for the discrimination of LGBT population, brought a new first-instance verdict which rejected GSA’s lawsuit as groundless. GSA Litigation service will appeal this first-instance decision to the Court of Appeal in Belgrade in statutory deadline.

Dragan-Markovic-Palma_foto-KurirTo remind, GSA Litigation service filed a lawsuit against Dragan Marković Palma in August 2011, under the Anti-discrimination Law because different sexual orientation was shown from his side through the media as an illness and something abnormal, i.e. because of his statement given to the media on 15 August 2011, when he said that “the position of United Serbia and my personal position is – that we are against every assembly where homosexuals demonstrate on the streets of Belgrade and wish to present something that is a disease as if it were normal“. First Basic Court in November of that year adopted a lawsuit which GSA filed and issued the first-instance verdict in which it found that Markovic committed severe form of discrimination based on sexual orientation according to articles 11, 12, 13 and 21 of the Anti-discrimination Law and prohibited him to repeat discrimination. However, the Court of Appeal in Belgrade in September 2012 revoked the first-instance verdict based on the appeal of Markovic’s attorney for the breach of the articles of the litigation process, i.e. because it determined that the defendant was not delivered the lawsuit in a proper manner by the First Basic Court and returned the subject for a new trial. Retrial in the First Basic Court in Belgrade started in February this year, and after a one delayed and two held hearings, the court issued a new, above-mentioned, the first-instance verdict, which is completely different from the first (first-instance) verdict.

It is interesting that the first and second first-instance verdicts were brought by the same judge of the First Basic Court in Belgrade Ms. Jasna Tresač, who changed her decision regarding the original judgment and completely overturned it in the retrial.

The Alliance believes that this verdict is completely ungrounded for which there are numerous and unambiguous evidences that the GSA Litigation service enclosed and therefore will appeal to the Court of Appeal in Belgrade and use all the additional means of legal protection. Great concern about this particular judgment causes its explanation that at times looks like a political pamphlet, places it in the role of spokesman for the United Serbia and Dragan Marković Palma and, as the most dangerous, arbitrarily interprets the law, trying to redefine the terms of free speech and hate speech, and has unhidden and much more bigger intention to defend and protect Marković than LGBT population. Which is very unusual because LGBT population was blithely insulted and discriminated many times by Marković, and he was also build his political rating in the last few years by stoking hatred toward LGBT population.

Of the many, highly questionable interpretation pronounced in the explanation of the verdict, we like to highlight just a few, and GSA has published the judgment completely on its website. In the explanation, among other things, stated that, in the opinion of the court, statement by Dragan Marković Palma “has characteristics of discriminatory behavior, but not to the adequate extent that specified (Marković’s) statement should be determined, officially by the Court, as an act of discrimination”, and that the statement is already sufficiently sanctioned by the Commissioner for the Protection of Equality who pointed out that through her press release. GSA resembles that Marković is sued under the Anti-discrimination Law not only because he was committed discrimination, but, because according to article 13 of that law he committed severe form of discrimination because he was inciting and encouraging inequality, hatred and bigotry on the basis of sexual orientation and propagated discrimination through the public media (about which GSA was enclose clear evidences to the Court).

Also, through the whole explanation are noticeable attempts to “liberate” courts from the obligation to prosecute under Anti-discrimination Law and switch the responsibility for implementing this law only to the institution of the Commissioner for the Protection of Equality, and in this regard in the explanation of the verdict was found a sentence that says “the court should not be a State body that will determine that there was a discriminatory behavior whenever some of the social categories listed in the Anti-discrimination Law find themselves offended or find discriminated in their own value judgment”!? Because of that, GSA is wondering if sentence like this means that there is no rule of law in Serbia when it comes to minority groups and is this a way to send the message to all of minorities to not “disturb” the courts and other state authorities in the future fighting for their rights and justice through the system, but to find some other ways?

In a strained explanation of the verdict (given that the evidences submitted by the GSA could not argue that Marković has not given such a statement) was retold the program of Marković’s political party, and a “traditional family values”, “healthy families”, “parade of shame”, “unnaturalness” were found their place in it, but it was pointed out that Marković said he was not for violence against the LGBT community, that his statement was in line with the program of his party, and it was his value judgment and value judgment can not prove in court. Also, there was repeatedly emphasized that Dragan Marković gave this statement because Ivica Dačić, Minister of the Interior, asked his and other political parties to declare on the occasion of planned Pride parade, as well as that Marković as a politician is expected to have a stance on this and many other issues. If the intention of the court was to prove that Marković would not have made such a statement if he was not asked, GSA reminds the public that Marković spoke many times about the LGBT population in a similar manner and derogatorily, and usually when he was not asked from anyone. On the other hand, if the intention was political „justification“ of his statement, GSA then asks whether the court bring a judgment on the basis of social and political will and political circumstances or under the laws, and whether the political position of anyone can be subject to judicial prosecution or the attitudes of politicians can not be touched no matter what they claim?

Although the explanation is abundant of quotations from the Constitution, the laws, the European Convention on Human Rights and the judgments of the European Court about the free speech and freedom of expression, as well as the sanctioning of hate speech, all of this is put for the purpose of Marković’s defense of the right to an opinion, and goes so far and conclude that “eventual adoption of GSA lawsuits threaten the rights of Dragan Marković Palma to hold opinions and to his freedom of speech, so any determination of his statement as discrimination will be in complete contradiction to the aims of Anti-discrimination Law”!?

Judge Tresač in the explanation quotes articles of the Anti-discrimination Law (11, 12, 13, 21) on which the GSA filed a lawsuit and notes that “hate speech and calls for various forms of discrimination are often phenomenon in political life and in the Serbian media space”. However, she determines that Marković’s statement is not eligible to be declared as act of discrimination. In this way she apparently missed the opportunity to take responsibility and contribute to the reduction of hate speech and discrimination in public sphere, and all of that in the case which is legally very clear and about which there should not be any hesitation or doubt. The only thing this judgment contributed is further strengthening of prejudices against LGBT persons and encouragement of individuals in political and public life to freely insult, disrespect and discriminate and thus inspire many to do the same, and also to practice a violence against LGBT persons.

Fortunately, there are judges in the Serbian court system who think and act differently. For example, judge Tatjana Lemajić (who is also the judge of the First Basic Court in Belgrade) in the case after GSA’s lawsuit against Nebojša Bakarec, the Democratic Party of Serbia (DSS) official and the assemblyman at the Belgrade City Assembly (because of his article published on one web site in which he stated that homosexuality was not normal and that it ought to be treated by psychiatrists and psychologists), gave the verdict for a severe form of discrimination against LGBT persons on the basis of articles 11, 12, 13 and 21 of the Anti-discrimination Law. This judgment became final in October 2012, and in the explanation of the judgment, among other things, says that hate speech “is every communication which is meant to belittle and scare a person or a group on the basis of their race, skin color, ethnic and national background, gender, sexual orientation, religion, and other characteristics, and which contributes to encouraging violence and prejudices towards an individual or a group”, adding that “the fundamental threat of expressing opinions with elements of hate speech lies in the fact that a message with such content aims to cause certain negative consequences to a particular person or group on the basis of their personal characteristic”. The court also in explanation touched the importance of sanctioning hate speech, clearly indicated where freedom of speech stops and hate speech begins, and believing that anyone who proclaimed their opinion publicly was obligated to responsibly and conscientiously estimate the line between freedom of speech and hate speech, and that in the proclaimed opinions in the disputable article the defendant Nebojša Bakarec violated the prohibition of hate speech by portraying same-sex sexual orientation as a disease and as something “abnormal” and he did so via public media.

Info center GSA

::: The verdict ::: (pdf download)