CASE OF HAMIDOVIĆ v. BOSNIA AND HERZEGOVINA
Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano
5. The applicant was born in 1976 and lives in Gornja Maoča. 6. On 28 October 2011 Mr Mevlid Jašarević, a member of the local group advocating the Wahhabi/Salafi version of Islam (see, concerning this group, Al Husin v. Bosnia and Herzegovina, no. 3727/08, § 20, 7 February 2012), attacked the United States Embassy in Sarajevo. One police officer was severely wounded in the attack. In April 2012 Mr Jašarević and two other members of the group were indicted in relation to that event. Mr Jašarević was eventually convicted of terrorism and sentenced to fifteen years’ imprisonment. The other two defendants were acquitted. The relevant part of the first-instance judgment rendered in that case, depicting the religious community to which the applicant also belonged, reads as follows: “In his Report/Findings and Opinion and at the main trial, the expert witness Prof. Azinović clarified the notions of ‘Wahhabism’ and ‘Salafism’ from a scientific perspective: ‘... Salafi communities in Bosnia and Herzegovina, like the one in Gornja Maoča (in which the accused lived at the time of the attack), are often isolated and inaccessible. The choice of remote and isolated locations to establish settlements is often informed by the belief that true believers who live in a non-believer (or secular) country need to resort to hijrah – emigration or withdrawal from the surrounding (non-believers’) world, following the example set by the Prophet Muhammad and his followers, who moved from Mecca to Medina in 622 to establish the first Muslim community. Despite mutual differences, most of the Bosnian Salafi groups share some common traits that are not inherent in Islamic organisations (or religious sects) only. In practice, they confirm the tendencies of certain traditional religious communities to isolate from other believers and define their holy community through their disciplined opposition to both non-believers and half-hearted believers. This pattern is inherent in fundamentalist movements and sects within almost all religious traditions. Such movements as a rule have similar characteristics despite the differences in theological doctrines, size and social composition, the scope of their influence or their tendency towards violence. Yet these fundamentalist and puritan groups mostly do not encourage or approve violence, whether it is aimed against members of the same group or against the outer world. According to the available sources and their own declarations, members of the community in Gornja Maoča oppose the concept of a secular State, democracy, free elections and any laws that are not based on Sharia. The positions taken by this group are, inter alia, available at a number of web sites, including www.putvjernika.com, while part of its followers live in Serbia, Croatia, Montenegro, Slovenia, Austria, Germany, Switzerland, Australia and other countries.’ ... 6.1.5.1 Punishment of the accused (Article 242 of the Code of Criminal Procedure) Having been called by the court officer to stand up when the Trial Chamber entered the courtroom at the first hearing, the accused refused to do so. Also, the accused Jašarević and Fojnica were wearing skullcaps, which the Court could correlate with clothing details indicating their religious affiliation. Pursuant to Article 256 of the Code of Criminal Procedure, all those present in the courtroom must stand up upon the call from a court officer. The President of the Trial Chamber asked the accused to explain both their refusal to stand up and the reasons why they had entered the courtroom wearing skullcaps. The accused stated that they only respected Allah’s judgment and that they did not want to take part in rituals acknowledging man-made judgment. The Court thereupon warned the accused that standing up was a statutory obligation of the accused and that under Article 242 § 2 of the Code of Criminal Procedure, disruptive conduct constituted contempt of court, which the Court would punish by removing them from the courtroom. After the warning, the President adjourned the hearing and provided the accused with a reasonable period of time to consult their attorneys in order to change their minds. When the Trial Chamber returned to the courtroom, the accused did not stand up, and therefore the President removed them from the courtroom. The transcript from the hearing was subsequently delivered to the accused. At a new hearing, the accused Fojnica and Ahmetspahić again did not want to stand up on being called by the court officer, while the accused Jašarević refused to enter the courtroom. The President therefore asked the accused to respond whether it was their definite decision to act in the same way until the completion of the trial. The accused confirmed that, until the completion of the trial, they had no intention of showing any respect, by standing up, for the Court, which they did not recognise. The Court found that to continue to bring the accused to scheduled hearings would unnecessarily expose the Court to significant expense. Therefore, the Court decided to remove the accused from the trial until its completion, with a warning that they would be notified of any scheduled hearing, and that, prior to it, they could notify the Court if they changed their mind, in which case the Court would allow them to come to the hearing. The accused Fojnica and Ahmetspahić then changed their mind and regularly appeared before the Court, while the accused Jašarević did so only at the following hearing. The Court delivered to the accused the audio-recordings and the transcripts from the hearings they had not attended in order to allow them to agree with their defence attorneys on their defence strategy.” 7. In the context of that trial, the Court of Bosnia and Herzegovina (“the State Court”) summoned the applicant, who belonged to the same religious community, to appear as a witness on 10 September 2012. He appeared, as summoned, but refused to remove his skullcap, notwithstanding an order from the president of the trial chamber to do so. He was then expelled from the courtroom, convicted of contempt of court and sentenced to a fine of 10,000 convertible marks (BAM) under Article 242 § 3 of the Code of Criminal Procedure. The relevant part of that decision reads as follows: “The Court has examined the situation encountered in the courtroom with the utmost care. The Court is aware that the witness belongs to a religious community, organised under special rules in the village of Maoča, of which the accused are also members. In view of that, the Court has acquainted the witness with the provisions of Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina and the obligations of the parties in the judicial institutions, which ban visitors from entering these buildings in clothing that is not in accordance with the generally accepted dress codes within the professional environment of the judicial institutions. In addition, the Court has pointed out to the witness that, in public institutions, it is not acceptable to display religious affiliation through clothing or religious symbols, and that the Court is obliged to support and promote values that bring people closer, not those that separate them. The Court has particularly emphasised that the rights of the individual are not absolute and must not jeopardise common values. The witness’s attention has especially been drawn to the fact that people of various religious beliefs, belonging to different religious groups, appear before the court and that it is necessary to have confidence in the court. Thus, the court is not a place where religious beliefs can be expressed in a way that discredits certain common rules and principles in a multicultural society. That is why the law obliges everyone who appears before the Court to respect the Court and its rules. The Court finds the witness’s refusal to accept the rules of court and to show respect to the Court by accepting its warnings, to be a flagrant breach of order in the courtroom. The Court has found that this behaviour is connected to a number of other identical cases before it, in which the members of the same religious group behaved in the same manner, publicly indicating that they did not recognise this Court. The frequency of such disrespectful behaviour and contempt of court is producing dangerous criminogenic effects and undoubtedly presents a specific threat to society. It is not necessary to particularly substantiate how this behaviour impairs the Court’s reputation and confidence in the Court. A legitimate conclusion may be that it is essentially directed against the State and basic social values. Therefore, a severe and uncompromising reaction on the part of the State, taking all existing repressive measures, is crucial for dealing with such behaviour. Restraint on the part of the State in cases of this or other types of extremism can have serious consequences for the reputation of the judiciary and the stability of society in Bosnia and Herzegovina. Bearing in mind the frequency, seriousness and gravity of this type of breach of order in the courtroom and its damaging consequences, the Court has decided to punish the witness by imposing the maximum fine of BAM 10,000. Such a severe penalty should be a message to all the parties in the courtroom that contempt of court is unacceptable. The Court must be respected and the level of respect for the Court is the same as for the State of Bosnia and Herzegovina.” 8. On 11 October 2012 an appeals chamber of the same court reduced the fine to BAM 3,000 and upheld the rest of the first-instance decision. It held that the requirement to remove any and all headgear on the premises of public institutions was one of the basic requirements of life in society. It further held that in a secular State such as Bosnia and Herzegovina, any manifestation of religion in a courtroom was forbidden. The relevant part of that decision reads: “The Chamber observes that it is obvious and well known that skullcaps, hats and other headgear should be removed when entering any premises, and notably the premises of State and other public institutions, as there is no longer a need to wear them and removing a skullcap or a hat is an expression of respect for this institution and its function. The duty to remove headgear exists not only in this court but also in other courts and institutions in Bosnia and Herzegovina as well as in other States. Such rules and duties apply to all persons without exception, regardless of religious, sexual, national or other affiliation. Indeed, this is a duty of all those who visit the State Court in whatever capacity, as explained in more detail in Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina: ‘Visitors must respect the dress code applicable to judicial institutions. Visitors shall not wear miniskirts, shorts, t-shirts with thin straps, open heel shoes and other garments that do not correspond to the dress code applicable to judicial institutions’. It would appear from the case file that the judge in charge of this specific case first directed the witness to remove his skullcap in the courtroom, and then gave him an additional ten minutes to think about it as well as about the consequences of rejecting that order. As the witness had nevertheless failed to remove his skullcap, showing thereby wilful disrespect for the authority of the court, the President of the Trial Chamber fined him in accordance with Article 242 § 3 of the Code of Criminal Procedure. It follows from the aforementioned that the judge in charge did not invent the duty of removing the skullcap when addressing the court, as claimed in the appeal. This is indeed a matter of a generally accepted standard of behaviour in the courtroom which applies not only to this Court but also to other courts; furthermore, it has always been applied. This duty stems from Rule 20 of the House Rules of the Judicial Institutions cited above. Therefore, the allegations made by the lawyer Mulahalilović in the appeal are not only unjustified but totally inappropriate. The allegation in the appeal that the witness was punished simply because he was a believer who was practising his religion, and that he had thereby been discriminated against, is also unsubstantiated. The duty of removing headgear and behaving decently applies without exception to anyone visiting the court premises. All persons visiting the Court, regardless of their religion, nationality, sex or other status, have the same rights and obligations and are obliged, among other things, to remove their skullcaps, hats and other headgear. This was explained to the witness. Any behaviour to the contrary has always been interpreted and is still interpreted as disrespectful towards the court, and the appellant is aware of that. Bosnia and Herzegovina, as mentioned in the impugned decision, is a secular State in which religion is separate from public life. The Chamber therefore holds that the premises of the Court cannot be a place for the manifestation of any religion. It clearly follows from the aforementioned that the witness Husmet Hamidović was not deprived of his right to freedom of religion and freedom to manifest religion at his home or any other place dedicated for that purpose, but not in the courtroom. Therefore, the allegations by the lawyer Mulahalilović of a violation of the rights guaranteed by the Constitution and the European Convention on Human Rights, and of discrimination on religious grounds, are unsubstantiated. Having found that the witness’s punishment was justified and that his appeal was ill-founded in that part, the Appeals Chamber then examined the amount of the fine and decided that it was excessive. As noted in the appeal, BAM 10,000 is the maximum fine for contempt of court. The maximum fine should be imposed in the most serious cases. Turning to the relevant criteria, the nature and the seriousness of the conduct must certainly be taken into consideration. However, the appellant is wrong in claiming that his means should have also been taken into account, as the fine for contempt of court is not a criminal sanction, but is of a disciplinary nature. While the witness showed a high level of determination in disrespecting the court (he again failed to remove his skullcap after a pause of ten minutes given to him to reflect) and this fact definitely affected the amount of the fine, the act itself (failure to remove headgear) is not the most serious case of contempt of court which would justify the maximum fine. Since the witness did not use offensive language, there was no need to impose the maximum fine. This is notwithstanding the fact that members of the same religious group have lately shown a pattern of disrespectful behaviour. While it is true that the general prevention is one of the aims of sanctions, including disciplinary ones, disciplinary sanctions are primarily directed at individuals. Everyone should therefore be held responsible and adequately punished for his/her conduct only, and not for that of other members of any group. This follows from Article 242 § 3 of the Code of Criminal Procedure. In the circumstances of this case, and having regard to the nature and the intensity of contempt of court committed by this witness, the appeals chamber finds that a fine in the amount of BAM 3,000 is appropriate. The appeal by the lawyer Mulahalilović is therefore partially accepted and the impugned decision amended.” 9. As the applicant had failed to pay the fine, on 27 November 2012 the fine was converted into thirty days’ imprisonment pursuant to Article 47 of the Criminal Code. That decision was upheld on 13 December 2012 and the applicant served his prison sentence immediately. 10. On 9 July 2015 the Constitutional Court of Bosnia and Herzegovina found no breach of Articles 9 and 14 of the Convention, fully accepting the reasoning of the State Court. At the same time, it found a breach of Article 6 of the Convention because of the automatic way in which fines were converted into imprisonment and ordered that Article 47 of the Criminal Code of Bosnia and Herzegovina be amended. However, it decided not to quash the decision converting the fine into imprisonment in this case, relying on the principle of legal certainty. The relevant part of the majority decision reads as follows: “40. The Constitutional Court notes that the present case concerns a specific situation where the universally accepted standard of conduct in a judicial institution intertwines with the right of the appellant to manifest in a courtroom, contrary to that standard, affiliation with his religious community. The appellant claims that the State Court did not have a basis in law for imposing a fine for his failure to comply with a court order, as the Code of Criminal Procedure does not contain a provision prescribing any such measure, for which reason his right to freedom of thought, conscience and religion was violated. 41. Starting from the main objection raised by the appellant, that the limitation in the case at hand was not prescribed by law, the Constitutional Court notes that the European Court (The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30) has held that two requirements flow from the expression ‘prescribed by law’ in Article 9 of the European Convention. ‘Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’ In addition, the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see Kokkinakis, cited above). 42. Accordingly, as concerns the issue of whether the State Court, in adopting the challenged ruling, acted in accordance with the law, the Constitutional Court observes that the provision of Article 242 § 3 of the Code of Criminal Procedure provides that the judge or the presiding judge may order that a party to the proceedings who disrupts order in a courtroom or disobeys court orders be removed from the courtroom and be fined in an amount of up to BAM 10,000. The Constitutional Court also observes that the cited provision, on which the State Court relied, does not prescribe a list of all types of conduct which may be regarded as disruption of order in a courtroom, but rather each court, in the circumstances of a given case, decides whether some type of conduct may be considered disruptive or not, which falls within the scope of that court’s margin of discretion (see the Constitutional Court decision no. AP 2486/11 of 17 July 2014, § 33). This is a universally accepted standard of conduct of the courts in Bosnia and Herzegovina, which is in accordance with the position of the European Court, referred to in the Kokkinakis judgment, that the interpretation and application of such enactments that are couched in vague terms depend on practice. 43. The Constitutional Court notes that the State Court relied also on Rule 20 of the House Rules, providing that ‘visitors must respect the dress code applicable to judicial institutions’, as an internal act of the State Court and other judicial institutions. The Constitutional Court observes likewise that the mentioned provision does not specify what that dress code is. However, the State Court in the case at hand kept in mind that the universally accepted standard of conduct in a civilised society required that upon entering the premises of a public institution one should remove one’s headgear out of respect for that institution and its function. Likewise, the Constitutional Court is aware that the said House Rules were not published, but that is not a problem since the present case concerns a universally accepted and usual standard of conduct in a judicial institution in a civilised and democratic society that Bosnia and Herzegovina aspires to become. The Constitutional Court also holds that the standard in issue could and should have been known to the appellant. In addition, the Constitutional Court observes that the State Court clearly and unequivocally warned the appellant of that universally accepted standard of conduct, which is indeed mandatory for all visitors of judicial institutions, irrespective of their religion, sex, national origin or other status. 44. Moreover, the State Court clearly warned the appellant of the consequences of such conduct and, although it was not required to do so, accorded him an additional time to reconsider his position. This is clearly in accordance with the stance taken by the European Court in relation to the notion ‘prescribed by law’ (The Sunday Times, cited above). Indeed, the State Court clearly and unequivocally informed the appellant of the applicable rules in the judicial institutions and of the consequences of disobeying the rules. Moreover, at his own request, the appellant was granted additional time to think about all this. The Constitutional Court especially emphasises the fact that the limitation in question applied only while the appellant was in the courtroom, that is, during his testimony before the State Court. The Constitutional Court holds that the State Court did not thereby place an excessive burden on the appellant, given that it simply requested that the appellant adjust his conduct to the House Rules, which applied to all visitors, and only in the courtroom. Bearing in mind all the aforementioned, the Constitutional Court holds, in the circumstances of this particular case, that the State Court, using the margin of discretion referred to in Article 242 § 3 of the Code of Criminal Procedure, acted in accordance with the law, and that, contrary to the appellant’s opinion, the interference, which was of a limited nature, was lawful. 45. As to the question whether the interference in the present case had a legitimate aim, the Constitutional Court notes that the State Court simply relied on a universally accepted standard of conduct in a judicial institution, which requires all the visitors of judicial institutions to respect ‘the dress code applicable to judicial institutions’. That court further relied on the inadmissibility of the manifestation in public institutions of religious affiliation and religious symbols which were contrary to the usual standards of conduct, and in so doing it took into account its obligation to support the values that bring people closer and not those that separate them. The Constitutional Court notes that the State Court underlined in that regard that Bosnia and Herzegovina was a secular State where religion was separated from public life and that therefore no one could manifest his/her religion or religious affiliation in a courtroom. Considering the position of the European Court that in democratic societies in which several religions coexist (as is the case of Bosnia and Herzegovina) it may be necessary to place restrictions on the freedom of religion (Kokkinakis, cited above), in the context of the obligation of an independent judicial institution to support the values that bring people closer, and not those that separate them, the Constitutional Court holds that the restriction in the present case, which was of a temporary nature, aspired to achieve legitimate aims. Finally, the Constitutional Court reiterates that Article 242 § 3 of the Code of Criminal Procedure is primarily designed to allow the State Court unhindered and effective conduct of proceedings. A judge or the president of a chamber is thereby given the possibility of imposing a fine for any inappropriate behaviour which is directed at disrupting order in a courtroom or at damaging the reputation of the State Court. In the present case, the State Court considered the repeated refusal of the appellant to comply with an order of the court to be damaging to the reputation and the dignity of a judicial institution. Therefore, the Constitutional Court finds that the restriction in issue, which was of a limited nature, was in accordance with the legitimate aim of maintaining the dignity of a judicial institution for the purposes of Article 9 of the European Convention. 46. Finally, as to the question whether the decision was necessary in a democratic society in order to achieve one of the legitimate aims under Article 9 of the European Convention, the Constitutional Court reiterates that, according to the settled case-law of the European Court, the Contracting States have a certain margin of appreciation in assessing the existence and extent of the need for interference, but this margin is subject to European supervision, embracing both the law and the decisions applying it, even those given by independent courts (Dahlab, cited above). Furthermore, under the well-established case-law of the European Court, the Court is called upon to establish whether the measures undertaken at the national level were justified in principle – that is, whether the reasons given by the national authorities to justify them were ‘relevant and sufficient’ and whether the measures were proportionate to the legitimate aim pursued (The Sunday Times, cited above, § 50). of Criminal Procedure enabling the courts to fine participants in proceedings who refuse to obey court orders, with a view to conducting proceedings efficiently and maintaining the authority and dignity of courts. The Constitutional Court took into account the fact that owing to his failure to pay the fine, the appellant’s fine was converted to a prison sentence pursuant to Article 47 of the Criminal Code. However, the Constitutional Court will examine that factor in the following paragraphs of this decision concerning the right to a fair trial. Therefore, in view of the above and the circumstances of this particular case, the Constitutional Court holds that the impugned restriction did not constitute an excessive burden for the appellant, that the measure undertaken by the State Court pursued legitimate aims within the meaning of Article 9 of the European Convention, and that there was a reasonable relationship of proportionality between the restriction and the legitimate aim pursued. 48. Accordingly, the Constitutional Court concludes that the impugned decision did not breach the appellant’s right to manifest his religion under Article II § 3 (g) of the Constitution of Bosnia and Herzegovina and Article 9 of the European Convention.” 11. Two out of the eight judges of the Constitutional Court appended dissenting opinions. They disagreed with the majority as concerns Articles 9 and 14 of the Convention. In particular, given that the applicant had appeared as summoned and had stood up while addressing the court, they considered that his conduct had not been disrespectful. They further maintained that, unlike public officials, private citizens, such as the applicant, did not owe a duty of neutrality. Therefore, the applicant’s punishment for refusing to remove a religious symbol in a courtroom constituted, in their opinion, disproportionate interference with his right to freedom of religion.