NUNS Analysis: Official Notes Instead of Legal Protection – A System That Leaves Journalists Unprotected

As part of the analysis, 16 requests for access to information of public significance were sent to collect 72 decisions and official notes on the dismissal of criminal charges and the lack of grounds for initiating proceedings in cases of attacks or threats against journalists. A total of 13 public prosecutor's offices responded, while one (in Sremska Mitrovica) did not do so within the legal timeframe. A total of 70 decisions and notes were analyzed, revealing patterns in the actions of public prosecutors regarding cases of attacks on journalists.

The Law Recognizes Journalists, but Practice Does Not Protect Them

The legislative framework of Serbia recognizes the journalistic profession as a public interest activity and provides a certain degree of protection for journalists, particularly through the Criminal Code. However, the main problem remains the inconsistent application of the law and the narrow interpretation of certain provisions.

Journalists enjoy a higher degree of protection in cases of criminal offenses such as endangering safety, where penalties are stricter when the victims are individuals performing public interest roles in the field of public information. Nevertheless, in practice, public prosecutors often fail to recognize all forms of threats, especially when they are not stated directly but are conveyed through conditional or veiled statements. Experts warn that such interpretation is too restrictive and that threats should be viewed in a broad context—including the relationship between participants, social circumstances, and the power position of the one making the threat.

Furthermore, the criminal offense of violent behavior is often narrowly interpreted, resulting in even physical attacks on journalists being dismissed on the grounds that they did not significantly disrupt public order and peace, nor did they seriously endanger the tranquility of citizens. Such practices can have serious consequences, as physical violence against journalists remains unpunished, which further jeopardizes media freedom and the safety of journalists in Serbia.

In situations where public prosecutors determine that the characteristics of a criminal offense pursued ex officio have not been met, they proceed in two ways: they either issue a decision to dismiss the criminal charge or an official note stating that there is no basis for initiating criminal proceedings.

Legal Gray Area: Official Notes Instead of Decisions Deny Rights of Victims

The Criminal Procedure Act clearly stipulates the reasons for which a public prosecutor may dismissing a criminal charge—if the act is not criminal, if the statute of limitations has expired, or if there is no basis for suspicion that a criminal act has been committed that is prosecuted ex officio. In that case, the victim has the right to file an objection to a higher prosecutor.

The Regulation on Administration in Public Prosecutor's Offices also provides for the possibility of drafting an official note in cases where the prosecutor determines that there is no basis for initiating proceedings. However, unlike a decision to dismiss a charge, an official note does not grant the victim the right to object, nor does it obligate the prosecutor to inform them of the decision.

Experts warn that the boundary between these two actions is often blurred in practice, as it is not precisely defined when a decision is made and when an official note is issued. Such inconsistent practice opens the door to abuses and denies victims their rights.

The conclusion of the NUNS legal analysis is that the existing regulations provide a sufficient framework, but it is necessary to standardize the practice of public prosecutors and prevent the misuse of official notes to ensure greater legal protection for journalists and other victims.

No Clear Rules: How Public Prosecutors Decide in Cases of Attacks on Journalists

The analysis shows that official notes, which should be exceptions, have become the usual way to conclude cases. Of the total 70 decisions analyzed over the past three years, 42 were official notes, while 28 were decisions to dismiss charges.

The key finding is that clear criteria cannot be established for how public prosecutors decide whether to issue a decision or merely an official note. Differences exist even within the same public prosecutor's offices, leading to uneven treatment of victims.

The analysis revealed significant fluctuations in the quality of reasoning: while some public prosecutors detail actions and reasons, others write notes without key data, which contradicts the obligations prescribed by the Regulation.

In numerous cases, public prosecutors conducted extensive evidentiary actions, even though an official note is only prescribed when it is immediately clear that there are no elements of a criminal offense. As a result, victims often remain uninformed about the outcome of the proceedings and without the right to object.

Particularly problematic is the fact that some criminal offenses are examined in detail, while others are completely ignored, even in cases of evident physical contact or a certain degree of suspicion. Similar cases are resolved differently: some with a decision, others with a note, which directly affects the rights of victims.

In cases of Endangering Safety, drastic differences in handling were observed, while in cases of Violent Behavior, certain physical attacks are dismissed with the explanation that they did not disrupt public order and peace, nor did they seriously threaten the tranquility of citizens.

The analysis also revealed that some public prosecutor's offices acted in cases for which they are not competent, especially in offenses committed via the internet, which represents a serious violation of procedures.

The overall conclusion is that the practice of public prosecutors is inconsistent, often non-transparent, and in some cases denies victims their right to legal remedies—which is particularly concerning in cases related to attacks and threats against journalists.

Inconsistent Practice of Public Prosecutors Denies Victims' Rights

The analysis of collected decisions from public prosecutors indicates a series of omissions that can jeopardize the legality of the procedure and the rights of victims, especially in cases of attacks on journalists. The key problem is the frequent application of the official note, which is provided for by a subordinate act that does not guarantee the same level of rights as those guaranteed by law, such as the right to object.

Although an official note should only be used in exceptional cases and exclusively when there are no grounds for suspicion that a criminal offense has been committed, the analysis shows that public prosecutors often resort to it even when there is a specific victim or when numerous evidentiary actions have been conducted. This denies victims the right to file an objection and to be informed about the outcome of the proceedings.

The biggest problem is the inconsistent practice of public prosecutors, both between different offices and within the same institutions. Different interpretations of the same norms lead to legal uncertainty and unequal treatment of victims, undermining public trust and threatening the fundamental principles of justice.

Consequences of Inadequate Protection: Impact on Journalists’ Work and Democratic Processes

The safety of journalists is crucial not only for their physical integrity but also for their ability to perform their work freely and without pressure. When journalists feel threatened, they cannot investigate and inform the public without hindrance, which directly affects the quality and availability of reliable information. This undermines the public interest, as well as the fundamental democratic processes based on critical thinking and freedom of expression.

In addition to increasingly frequent threats and attacks, an additional problem is the inconsistent actions of public prosecutors and the denial of procedural rights to affected journalists, which places them in an even more unfavorable position. The impunity of perpetrators sends a negative message and does not act preventively—on the contrary, it can encourage new attacks and deepen distrust in institutions.

For journalists who already feel unsafe and lack trust in the system, inadequate actions by state authorities further erode their faith in the judiciary and their willingness to report attacks, which long-term jeopardizes media freedom in Serbia.

Recommendations for Standardizing the Practice of Public Prosecutors and Better Protection of Victims

The analysis indicates that it is not necessary to change the laws, especially in the current socio-political environment, as the existing regulations already provide a sufficient framework for proper decision-making in cases of attacks on journalists. Instead, it is crucial to standardize the practice of public prosecutors and prevent abuses in the application of official notes.

Recommendations foresee the active involvement of the Supreme Public Prosecutor's Office and appellate prosecutor's offices in providing clear guidelines on when an official note can be used, in order to protect the rights of victims and avoid legal uncertainty. It is necessary to consider amendments to the Regulation on Administration in Public Prosecutor's Offices to align its application with the Criminal Procedure Act, especially regarding the victim's right to object.

Public prosecutors are called to limit the use of official notes only to situations where it is completely clear that there are no elements of a criminal offense, and to pay special attention to the procedural position of the victim when taking action.

Recommendations also include consultations with prosecutors, presentation of research findings, exchange of opinions, and organization of training on proper handling of cases involving affected journalists. The ultimate goal is to improve the position of victims in criminal proceedings and ensure full and equal legal protection.

The entire analysis can be read at the following link.

Source: NUNS, I.K.